Court sets aside Director's access route decision for failing to consider personal convenience and nuisance.

[*204] 1979 April 14

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Andriani Demetriou Ioannou, wife

of Theodoros Ioannou Charalambous

and Another,

Appellants,

v.

Maria Savva Petrou,

Respondent.

(Appeal from L.R.O. No. 4/79).

Immovable property - Access - Grant

- Route of access - Determination - Discretion of Director of Lands and Surveys

- Principles on which Director acts and principles on which Court interferes with his decision - Route approved not the shortest possible route - Director failed to have regard to personal convenience of the parties and to the element of nuisance - His decision set aside - Section 11(a) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 and Immovable Property (Granting of Access) Rules, 1967.

C. Varda (Mrs.) with Th. Varda (Miss), for the Appellants.

A. Kramvis, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

PIKIS. P.D.C.: This appeal is directed against a

decision of the Director of the Lands Department dated 5th February 1979, adjudicating on an application of the respondent for the grant of a right of access in favour of her enclosed property, plot 16, under the provisions [*205] of section 11(a) of the Immovable Property Law, Cap. 229 (amended by s.3, Law 10/66). The access eventually approved was not, it seems, the only alternative indicated by the respondent who, as far as I can gather from the evidence, indicated a number of alternatives evidently in order to enable the director to exercise his discretion on the broadest possible base. Mr. Adamos Nikiforou (A.W.1), the employee of the Lands Department who was assigned by the director to deal with the application and whose decision was eventually adopted by the director, explained that the passage chosen was, in the circumstances, the most expedient choice particularly viewed from the angle of the likely repercussions on prospective servient tenements. The witness acquainted the Court of the procedure followed after the application of the respondent for the allocation of access. It emerges that all formalities envisaged by the regulations were duly complied with and the decision is not attacked on any such count. The Lands Department held two local inquiries in order to evaluate matters in their real perspective.

The choices open to the director can be clearly seen on a plan showing the dominant tenement to be and possible servient tenements, that is lands interposed between the dominant tenement and the road. It is manifest that the route approved was not the shortest possible route between plot 16, the property of the respondent and the road; the shortest route would have been through plot 19, or plot 11/1, or possibly a passage over the boundary of these two properties. Considering that a number of trees were planted In plot 11/1 of the two, plot 19 offered [*206] itself better as a servient tenement. The director, for reasons that were stated before me, did not choose any of the above routes and chose instead a circuitous route along the eastern boundary of plot 11/1 and then along the property of the appellants. His reason for making this otherwise unwarranted choice was the existence of an unpaved passage along the property of the appellants that was being used for driving up to the house of the appellants built on the opposite side of the road on an elevation of the ground. Indeed when the access granted is not over the shortest route the director is, as a matter of practical reality, under the additional burden of indicating his reasons for not making such choice. The route approved was chosen because it comprised an area already being used as a passage, therefore the likely damage was minimized by reducing the extent to which cultivable land would have to be given up for use as a road. Unlike the land of the appellants plot 19 was, in its entirety, a field and cultivable land, be it of a small extent, would have to be converted into a passage. Eventually a route of 240 feet was approved over two plots of land as opposed to a route of 150 feet that might be marked over plot 19. The length of the passage through the two properties is 170 feet over the property of the appellants and 70 feet over plot 11/1, the owner of which plot like the present appellants questions the validity of the decision of the director in Appeal 3/79. No suggestion is made that the passage approved over plot 11/1 was in use as a passage; the inference is, it was agricultural land. [*207]

The appellants contend that the passage approved by the director is contrary to the legal directives embodied in Law 10/76 and regulations made thereunder in that the access is not the least cumbersome of rival alternatives and pray that the decision be set aside.

The law entrusts the director to define both the cause, nature and extent of the access that may be approved in favour of land with no access to a public road. (Section 11(a)(2), Cap. 224). The regulations made under the law indicate the considerations that should guide the director in choosing between alternative paths. In making his decision he must endeavour to cause "the least possible damage, nuisance or inconvenience (taleporia)". (See Immovable Property (Granting of Access) Rules 1967, Official Gazette, Part III, p.282). The inquiry must not be limited to a study of the financial repercussions but must extend to the circumstances relevant to the use of the property and the hardship likely to be suffered by the different owners. And the owners’ personal comfort and inconvenience is one of the considerations to which the director should have regard.

In exercising his powers the director performs an administrative duty involving the adjustment of private rights. His

decision is subject to review by the District Court and not the Supreme Court as it is a decision in the domain of private law. Recently the Supreme Court made a detailed analysis of the nature of the power and the character and ambit of the reviewing powers of the District Court; Kafieros and Another v. Theocharides and [*208] Others (1978) 1 G.L.R. 619. It is pointed out, as I had myself occasion to indicate on another occasion, that the reviewing powers of the District Courts are wider than those ordinarily vested in the Supreme Court in the exercise of its revisional jurisdiction under Article 146 of the Constitution. Whereas the revisional jurisdiction of the Supreme Court is limited to upholding or annulling the decision complained of, the District Court is vested with wider reviewing powers and may, in a proper case, substitute its own decision for that of the director, being empowered under the law to do what is just in the case. (s.80, Cap.224; see also my judgment in Theodora Thoma Georghiou v. Xenia Demetriou Xeni, L.R.O. Appeal 2/76 delivered on 16th October 1976).

In carrying out his inquiry the director must not only observe the rules of natural justice but must also heed the rules of evidence for, in proceedings before the District Court, his

decision cannot be supported except by reference to material emanating from admissible evidence. (See Abraham Hassidoff v. Paul Antoine-Aristide Santi and Others (1970) 1 C.L.R. 220). Subject to this a wide discretion is vested in the director, the person heading a department that possesses the necessary expertise to make an informed choice in land matters. A heavy burden lies on a party questioning his decision; and the Court will not lightly interfere with the exercise of his discretionary powers. (See Constantinos Nicolaou Georghiou v. Evangelia HjiGeorghiou HjiPhesa (1970) 1 C.L.R. 58). But the Court may justifiably intervene if there is either an excess or. abuse of power or, bearing in mind the provisions [*209] of s. 80, Cap. 224 where his decision is manifestly unjust.

Reverting to the facts of the present appeal it is obvious that the director failed to have regard to all the factors that he ought, under the law, to consider in arriving at his decision. He signally failed to have regard to the personal convenience of the parties and the element of nuisance inherent in approving a right of access over a plot encompassing a residence. The creation of a right of access over the land of the appellants would interfere with their privacy, a matter of very great consequence for appellant 1, a woman living by herself and her son most of the year. It was legitimate and in fact imperative for the director to pay due weight to these considerations which, to my mind, outweighed the repercussions from the cession of agricultural land which would be the case if the passage was marked through plot 19, at little cost, considering that the ground is level.

In my judgment the decision of the director must be set aside. The power vested in the Court to make any order that appears to be just does not make permissible the approval of access over any property other than that of the appellant for, so to do, would constitute a violation of the rules of natural justice by depriving the owner of the servient tenement from arguing his case before the Court. Although the Court might vary the decision if the variation affected only the parties before the Court it has no power to take a decision that affects the rights of persons not

parties before the Court. It will be up to [*210] the director to re-examine the application of the respondent for a

right of access and take a decision under the law.

I shall make no order as to costs, considering that the respondent in no way contributed to the decision of the director that has been faulted and though costs follow the event the event is not, in this appeal, of the making of the respondent. Had it appeared that respondent failed or omitted to indicate alternative routes my discretion might be exercised in a different way.

Decision of the director set

aside. No order as to costs.