Supreme Court allows building permit renewal refusal annulment but dismisses constitutional declaration claim.

[*451] 1969 March 17

(TRIANTAFYILIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Loulla A. Chilimintri,

Applicant,

and

The Municipal Corporation of Famagusta,

Respondent.

(Case No. 313/68),

Streets and Buildings - Building permit - Renewal - Expired building permit in respect of a building already under construction - It can be renewed more than once - Whether a renewal of a building permit is necessary invariably in all cases in which construction has duly commenced thereunder, but has not been finished within a period of one year - Question left open - Streets and Buildings Regulation Law, Cap. 96, section 5.

Constitutional Law - Article 23 of the Constitution - Right to property safeguarded thereunder - Section 5 of the Streets and Buildings Regulation Law (supra) - In case of doubt to be interpreted in favour of the citizen.

Constitutional Law - Claim for a declaration that applicant is entitled to proceed and complete her buildings etc. - Failed in view of Article 146(4) of the Constitution.

Practice - Costs - No - order for costs in favour of applicant as she has not succeeded in all her claims.

Chr. Mitsides, for the Applicant.

S. Marathovouniotis, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES,J.: In this case the Applicant had been issued by the Respondent Municipality [-*452] of Famagusta with a building permit, No. 2951, on the 12th April, 1966, for the erection of five more storeys on top of a lawfully constructed, earlier, three-storeyed building of hers.

On the 26th May, 1967, the said building permit was renewed for one year, until the 26th May, 1968 (see exhibit 1).

As by May, 1968, the five additional storeys had not yet been completed, the Applicant applied, on the 20th May, 1968, for a further renewal of the relevant building permit (see exhibit 2); such renewal was, however, refused by the Respondent, on the 28th June, 1968 (see exhibit 3) on the ground that it was not possible, under, the provisions of the Streets and Buildings Regulation Law, Cap. 96, to renew twice any building permit.

The relevant provision of Cap. 96 is section 5, which reads as follows:-

“5. A permit shall be valid for one year from the date of the issue thereof:”

“Provided that, if the work or other matter is not completed within that period, the permit shall be renewable at any subsequent time if not conflicting with any Regulations in force at the time of such renewal, upon payment of the fee prescribed for the original permit or of two pounds whichever is the less. The permit so renewed shall be valid for one year from the date of renewal”. [*453]

I am leaving open in this case, as it has not been raised or argued, the Question as to whether, on a proper construction of section 5 of Cap. 96, a renewal of a building permit is necessary invariably in all cases in which construction work has duly commenced thereunder but has not been finished within a period of a year; I realize that the phrase “is not completed”, in section 5, points to such a view; but on the other hand it could perhaps lead to absurd results if the construction of a building which due to its nature could not be finished in a year were to be embarked upon in due compliance with a building permit lawfully issued and then, due to a supervening change in the relevant Regulations, during the year of the validity of the building permit, no renewal thereof would be possible and the building could not be finished, as originally planned by its owner and sanctioned by the appropriate authority with full knowledge that it could not be finished in a year’s time.

In any case, I can find nothing in section 5 which supports the view, taken by the Respondent to the effect that a-building permit cannot be renewed more than, once, if there is, otherwise, no legal obstacle to such a course.

As a permit is renewable “at any subsequent time”, under section 5, it would be unreasonable to hold that an expired permit can be renewed, once only, some years later, but it cannot be renewed on a yearly basis, more than once, for the purpose of enabling the completion of a building under construction. [*454]

Moreover, section 5 has to be construed bearing in mind that it is part of legislation restricting one of the fundamental rights and liberties safeguarded under our Constitution - the right to property - and, therefore, it should, in case of doubt, be interpreted in favour of the citizen; so, in the absence therein of any express prohibition of a second renewal of a building permit it must be taken that such a course is not excluded thereunder.

That being the position regarding the true effect, in my opinion, of the said section 5, I cannot but hold that the Respondent Municipality was not right in taking the view that in law a second, renewal of the building permit in question was not possible at all, and that the Applicant had to apply afresh, submitting relevant plans all over again, for the purpose of obtaining an entirely new building permit in relation to her building already under construction.

In the circumstances I have no difficulty in declaring null and void and of no effect whatsoever the refusal - as decided upon - of the Respondent to renew the building permit of the Applicant; and the matter has now to be reexamined by the Respondent in the light of this Judgment and in accordance with any relevant legal or factual considerations

Thus, the Applicant succeeds in respect of her claims (a) and (c) in the motion for relief. But, she cannot, in the light of Article 146(4) of the Constitution, succeed in obtaining a declaration in the form set out in her claim (b); and, consequently, such claim fails. [*455]

In all the circumstances of this case, and hearing in mind that the Applicant has not been successful in relation to all her claims put forward by means of the motion for relief, as well as that there is no reason to doubt the bona fides of the Respondent in taking the view which it has taken about section 5, I am not prepared to make any order for costs against the Respondent; but I think that it is only fair, too, not to allow the Applicant to be burdened, for any reason, with costs in these proceedings, and I, therefore, direct that the order for costs made on the 26th October, 1968, should be discharged.

Sub judice decision referred to in claims (a) and (c) annulled; claim

(b) dismissed; order for costs as & foresaid.