Building permit for pavement not revoked by later decision; private law agreement claim dismissed.

[*419] 1973 April 17

(MALACHTOS, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Georghios Koumides,

Applicant,

And

The Municipality of Nicosia,

Respondent.

(Case No. 148/71).

Streets and Buildings - Building permit - Covering main buildings only but not covering construction of pavements - Such construction the subject of a subsequent decision - New decision not amounting to revocation of the first building permit.

A. Emilianides, for the Applicant.

K. Michaelides, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

MALACHTOS. J.: The applicant in this [*420] recourse is the owner of immovable property situated within the Municipal limits of Nicosia on the corner of Isaakios Komninos and Eptanisos Street, (formerly Sheikh Saadi Street), under Plots Nos. 65 and 66 of S/P XXI.56.6.II,

VI. The width of Eptanisos Street is about 18 ft. but as one proceeds to the direction of Isaakios Komninos Street and along the frontage of Plot 65, it becomes 30 ft. wide, and so a strip of land of 12 ft. wide all along the frontage of Plot 65 at Eptanisos Street, is created. This strip of land, which is admittedly part of the public road, gave rise to the present recourse.

The history of these proceedings, as it appears from the relative file kept by the respondent, exhibit 18, goes back as far as 1963. On 6th June, 1963, the applicant wrote a letter (exhibit 15) to the respondent authority where, after stating the inconvenience caused to hi* by the parking of vehicles on the said strip of land, which vehicles hindered him in carrying on his business, he proposed either to lease or buy it. It should be noted here that at that time some old shops were standing on the said property of the applicant in which he was carrying on his business in iron and machinery works. In answer to his above letter the applicant was informed that the Municipal services would have no objection if the applicant would construct a pavement in front of his property on the said strip of land if that pavement was in accordance with the instructions and under the supervision of the Municipal Engineer. By letter dated 29th July, 1963, (exhibit 16), addressed to the Town Clerk, the applicant [*421] stated that he was willing to construct the proposed pavement and asked for the relative instructions of the Municipal technical services.

By letter dated 6th August, 1963, (exhibit 14), signed by the Town Clerk, the applicant was informed, in answer to his letter of 29th July, 1963, that the subject of the construction of a pavement in front of his shop was under consideration, and he was asked not to proceed to carry out any works without the relative permit from the Municipal services. The said letter was addressed to the applicant after the respondent authority received a letter of protest dated 3rd August, 1963, from the owners of immovable property on the other side of the road Opposite the property of the applicant; protesting to the conversion of part of the road in question into a pavement by the applicant.

On the 8th August, 1963, the said owners of immovable property opposite the property of the applicant, namely, Takis Kyriacou, Charalambos Eleftheriou and Dr. Ioannis Polydorides, filed recourse No. 144/63 claiming a declaration that the decision of the District Officer and/or of the Municipal authorities or Municipal services, or Improvement Board of Nicosia, permitting one George Koumides, manufacturer, of Sheikh Saadi Street, No. 29, Nicosia (now Eptanisos Street), to convert a part of the public street, namely Sheikh Saadi Street, Nicosia, into his private property and/or a pavement, and/or to make [*422] construction on the said part of the public street, is unlawful, null and void, unconstitutional and/or ultra vires and of no effect whatsoever.

On the 10th October, 1964, the said recourse was withdrawn as it was ascertained that no permit was ever granted for the conversion of the said part of the road into a pavement. So the matter remained at that till 23.3.1970 when the present applicant applied to the respondent authority for a building permit.

In the relative plans, which were submitted to the Respondent for the issue of a building permit, the strip of land in question, appears as a pavement. However, on the relative building permit, exhibit which was issued to the applicant on 24th July, 1970, condition 2(a) reads that 'the proposed public pavement should be constructed according to approved plans and directions of the appropriate authority".

It is notin dispute that the applicant demolished the old buildings on his said property and started erecting the new ones even before the issue to him of the building permit, exhibit 4.

When the buildings were completed and as his contractor started converting the strip of land in question into a pavement the Municipal Engineer addressed to the applicant the letter dated 6th February, 1971, exhibit 11. This letter reads as follows: - [*423]

"Sir,

I am forwarding to you the attached plans approved on the basis of the building permit under No. 8183 of the 24/7/70, I grasp the opportunity to refer to our conversation (present:- G. Koumides, A. Christodoulides, M. Philokyprou) which we had today at 9 a.m. and during which on the one hand you admitted that for the erection of your buildings and, in particular, the construction of the pavement, ’you knew, as it has been indicated to you, the contents of the approved plans attached, on the other hand, I drew your attention once again to condition No, 2(a) of the permit No.8183 dated 24/7/70, together with the particulars of the plans indicating the final shape of the pavement".

The particulars of the plans, as regards the pavement in question, referred to in the above letter of 6/2/71, exhibit 11, are contained in the plan, exhibit 8, where it appears that the applicant was allowed to convert into a pavement part of the strip of land in question to the extent of 4 ft. width instead of 12 ft. as he had originally planned.

As a result the applicant filed the present recourse claiming –

1. A declaration of the Court that the decision of the Municipal Engineer dated 6th February, 1971s by which the [*424] plans of the 24th July, 1970, of the building of the applicant No. 8183, were modified, is null and void and of no legal effect as regards the tiled pavement thereof.

2. A declaration of the Court that the decision of the Municipal Engineer of the Nicosia Municipality dated 6th February, 1971, by which the plans of the building of the applicant No.8183, and dated 2Uth July, 1970, were modified, is null and void and of no legal effect as made ultra vires.

3. A declaration of the Court that the plans submitted and approved on the basis of the building permit under No.8183 and the technical description (5A) are the only valid ones as regards the tiled pavement.

4. A declaration of the Court that the applicant is entitled to damages; and

5. The costs.

The application as stated therein is based on the following four grounds of law: -

1. The decision of the Municipal Engineer communicated to the applicant on 6th February, 1971, which modifies the approved building permit No, 8183 issued on 24/7/70, as regards the tiled pavement and on the basis of which the applicant proceeded and constructed his buildings and the said pavement without having any notification or notice of the modification, constitutes a unilateral decision and is arbitrary.

2. The said decision is beyond powers (ultra vires). [*425]

3. The applicant by virtue of the above decision is subjected to unequal treatment and protection, contrary to the provisions of Article 28 of the Constitution; and

4. The said decision constitutes interference with the proprietory rights of the applicant in contravention of the provisions of Article 23 of the Constitution.

The Respondent Municipality on the other hand, opposed the application of the applicant and relied on the following grounds of law:

(a) The letter of the Municipal Engineer dated 6th February, 1971, does not contain any administrative executory act or

decision of respondent and, therefore, no recourse lies against it under Article 146 of the Constitution;

(b) this recourse is out of time as same has not been instituted within 75 days from 24th July, 1970;

(c) in view of the fact that the pavement is a public pavement erected upon a public street the applicant has no existing legitimate interest to file this recourse;

(d) the applicant accepted without reservation respondent's condition that he would construct the public pavement in accordance with respondent's instructions; and

(e) as the public pavement is erected on a public street no proprietory interests of applicant are interfered with by respondent.

On the application of counsel for respondent, at [*426] the directions stage of the proceedings, the applicant filed in Court on 7/10/71 a document purporting to give particulars of the third ground of law relied upon by him i.e. unequal treatment contrary to Article 28 of the Constitution. The following allegations are contained in the said document: -

1. The respondent Municipality in July 1963 after repeated consultations with the applicant, decided and approved the construction of a tiled pavement on the whole extent of the strip of land in question. This decision which was recorded in the minutes of the respondent, was also communicated to the applicant.

2. As a result of the said decision of the respondent the applicant proceeded with the demolition of part of his immovable property standing on the corner of Eptanisos and Isaakios Komninos Street and ceded part of his property for the widening of the public road. The new alignment line was defined by the municipal employees. For the portion of land which was ceded to the public road by the applicant no compensation was claimed.

3. The respondent Municipality after the applicant had complied with the said agreement it was postponing execution of its obligation to construct the tiled pavement in question.

4. On 23/3/70, the applicant applied for a building permit and submitted the relative plans on which the construction of the tiled pavement on the v/hole extent of the strip of land in question appears. [*427]

5. When the building permit No.8183 dated 24/7/70 was issued to him, in the second condition endorsed thereto reference is made as regards the technical terms on the construction of the tiled pavement, but no notice of any change in such condition was given to the applicant. On the contrary, the space covered by the said pavement was marked on the spot by the employees of the Municipality.

6. The applicant proceeded and completed his buildings having always in mind the construction of the pavement as appearing in the plans he had submitted. The respondent, however, did not comply with the undertaking on its part and kept the relative plans for more than 8 months without notifying the applicant about the change in the construction of the said pavement.

7. Due to the conduct of the respondent the applicant became subject to unequal treatment and discrimination and suffers damage daily in his trade and business. He has also suffered damage as he ceded part of his property to the respondent without receiving any compensation.

From the contents of the said document and the arguments advanced by counsel for applicant, I must say that I was unable to see how as a result of the letter of the 6th of February, 1971, exhibit 11, the applicant was subjected to unequal treatment contrary to Article 28 of the Constitution or how his proprietary rights were affected in the sense of Article 23 of the Constitution as alleged in his application. [*428]

The complaint of the applicant, as far as I was able to make out from the material placed before me, since it is not clearly stated or argued, is based on the following two grounds:

1. That although the respondent Municipality in 1963 undertook the obligation to construct the tiled pavement on the whole extent of the strip of land in question, in consideration of the applicant ceding part of his property in Isaakios Komninos street to the public road, later on when the applicant had fulfilled his obligation, under the said agreement, the respondent failed to fulfil its own obligation; and,

2. That although the respondent through the Municipal Engineer expressly allowed the applicant in 1970 to construct the said tiled pavement on the whole extent of the strip of Lund in question, and building permit under No, 8183 was issued to this effect on 24/7/70, which permit was based on the plans submitted and approved, yet by its decision contained in the letter of 6/2/71 the respondent Municipality changed the said plans and modified them, thus revoking its previous decision.

In support of his allegations the applicant gave evidence himself and called 6 more witnesses, including Solon Hji Minas, a Municipal Engineer at the material time, and George Koutas, the Town Clerk.

For the reasons appearing later in this judgment I am not going to refer to the whole evidence adduced in these proceedings. [*429]

The applicant in giving evidence stated that in 1970 and before applying for a building permit, together with a certain Aristides Koumoushis who works in the office of Mr. Economou, an architect of Nicosia, visited the office of Mr. Hji Antonas, the Municipal Engineer, and asked him whether the Municipality were willing to cede to him the strip of land in question in order to convert it into a public pavement. Depending on the answer of the Municipality the applicant would prepare his architectural plans accordingly. If they were going to cede this part of the road to him in order to convert it into a pavement, his plans would be prepared and his buildings would be erected as they stand today. The answer by Mr. Hji. Antonas was "Why should we not cede it to you?" Relying on that promise the applicant prepared and submitted the plans which are exhibits before the Court and on which the said pavement appears. On the basis of these plans he obtained building permit No. 3183 dated 27/7/70.

Both Mr. Koutas, the Town Clerk (applicant’s witness No.6) and Mr. Hji Antonas, the Municipal Engineer (respondent’s witness No.1), stated that they favoured the idea of conversion by the applicant into a pavement the strip of land in question, and that Mr. Hji Antonas would suggest it to the respondent Municipality. When, however, the plans were submitted together with an application for a building permit, due to the fact that at that time the Municipality were negotiating with certain other people for the construction of a road next to the nearby Municipal market, and at a short distance from applicant's property, the applicant was asked [*430] to wait till the final settlement of that matter. As the applicant was in a hurry to start building works, the relevant building permit was issued but the plan as regards the pavement in question was not delivered to him. This was to his knowledge and with his consent. So, there was no approved plan for the construction of the pavement on the day when the building permit was issued and this is the reason why condition 2(a) was endorsed thereto.

The first time when the decision was taken by the respondent Municipality as to the shape and extent of the said pavement, was on 4/11/70.

It is abundantly clear from these facts, which are not really disputed, that the building permit, which was issued to the applicant, did not cover the construction of the pavement in the way the applicant proposed in the original plans. No question, therefore, arises for consideration by the Court of the respondent Municipality revoking their previous decision as the only decision that was taken regarding the shape and extent of the said pavement was on 4/11/70, after the issue of the building permit.

Nothing was said by the applicant, or by any witness that gave evidence in these proceedings, that there was ever any agreement between him and the respondent Municipality made in 1963, or at any time thereafter, to the effect that in consideration of the applicant ceding part of his property in Isaakios Komninos Street, the Municipality undertook to convert the strip of land in question in Eptanisos Street [*431] into a pavement. But even if we assume that such an agreement was ever made, the case of the applicant could not he carried any further before this Court as this matter falls in the domain of private and not public law.

For the reasons stated above this recourse fails.

Applicant to pay £35. - against the costs of the Respondent.

Application dismissed.

Order for costs as above.