Court orders demolition of unpermitted kiosk on public road despite prior existence and rent payments.

[*195] 1984 Oct. 13

(S. NICOLAIDES,D.J.)

IN THE DISTRICT COURT OP NICOSIA

Improvement Board of Strovolos,

v.

Costas Makri and another,

Accused.

(Case No. 4394/84.

Streets and Buildings - Certificate of Approval - Occupying or using a building without such certificate - The Streets and Buildings Regulation Law, Cap. 96, as amended, sections 10 and 20 - Demolition order - Principles governing the exercise of the Court’s discretion in making such order - Kiosk erected before the establishment of the Republic without a permit on a public road - In the circumstances of this case the making of a demolition order is imperative.

G Teoulides for the prosecution

A.S. Angelides for the accused.

SENTENCE

S.NICOLAIDES, D.J, : Accused I pleaded guilty to [*196] three counts which appear on the charge-sheet.

Count I. Occupying a building without a certificate of approval contrary to sections 10 & 20 of Cap, 96 as amended.

Count 2. Using a building without a certificate of approval contrary to sect. 10 and 20 of Cap.

96 as amended.

Count 3. Obstructing the free passage a public road contrary to s, 2, 3 & 5 of Cap. 83.

With regard to the erection-(building) the subject matter of these proceedings a recourse has been filed and to which the learned counsel for the accused has referred the court for the facts; this recourse No. 149/81 Costas Makris & another v. The Republic of Cyprus through the District Officer

Nicosia as Chairman of the Improvement Board of Strovolos (1984) 3 C.L.R. p.10. The facts are the following as found at p. II-13 by the Court:-

“This kiosk was built on the public square without a building permit by the late loannis Pette-merides to whom the District Officer, Nicosia, in his capacity as Chairman of the Improvement Board of Strovolos addressed on the 18th December, 1978, a letter (exhibit I) drawing his attention to the fact that he had built on a public road, namely, Grivas Dighenis Square in Strovolos, a kiosk of cheap construction without a building permit and that no [*197] covering permit could be issued as it had not been built in accordance with the Streets and Building Regulation Law, Cap. 96, and he was asking him to demolish same within one month, otherwise legal proceedings would be instituted against him without any further notice.

Pettemerides by letter dated the 9th January, 1979 (exhibit 2), through his advocate, acknowledged receipt of the aforesaid letter and informed the respondent that he was an invalid since 30 years and in bad health and that he was at the time in a clinic undergoing treatment. He requested that an extension of time be given to him until his recovery from his illness so that a meeting would be arranged obviously for the discussion of the whole matter

On the 22nd June, 1979, the respondent wrote to the said advocate a letter (exhibit 3) informing him that the kiosk in question had been let by Pettemerides to applicant I for the monthly rent of C£30.- and that the Improvement Board of Strovolos insisted for the demolition of the arbitrarily placed kiosk within one month, otherwise legal proceedings would be instituted against everyone who was responsible. In reply to the said letter counsel wrote on the 14th July, 1979 (exhibit 4) asking the respondent to postpone the demolition of the said kiosk until the 31st December, 1979, as with the rent of C£30.- his client was meeting the expenses of the treatment. [*198]

On the 10th November, 1980, the respondent wrote to applicant I (exhibit 5) informing him that it carne to his knowledge that he was using a kiosk which was constructed unlawfully on the public road near Grivas Dighenis Square (Klimataria) in Strovolos the construction of which consisted of cheap material and that a covering permit could not be issued, hence he was asked to demolish not later than the 30th November 1980, same, otherwise legal proceedings would be instituted against them without further notice, Applicant I acknowledged receipt of the said letter by his letter dated the 24th November, 1980 (exhibit 6) and stated interalia, therein that the kiosk which it was mentioned as having been built unlawfully was functioning since 20 years and more and that he had bought it from the late Ioannis Pettemerides, of Strovolos, since three years; that he was a poor family man, that he had built his house with a loan and that he had bought the said kiosk for a substantial sum and had stocked it with goods acquired on credit; that his wife was working in a chemist shop but since the purchase of the kiosk she gave up her work and started operating the kiosk in question instead in the hope of a better future. For those reasons he asked that in case there were street works carried out for the development of the area and the kiosk interfered with them, he was prepared to move it elsewhere. [*199]

On the 14th March, 1981, and in reply to the applicant’s letter of the 21.11.1980, respondent wrote to him the following letter (exhibit 7): ‘I refer to your letter dated 24.11.1980 by which you ask that you be permitted to keep the kiosk in Klimataria Square until the carrying out of the development works in the area and I inform you that the Board examined your request and decided to give you a last extension until the 31st May, 1981. 2. After this you are asked to remove the said kiosk until that date, otherwise measures will be taken against you not excluding also the issue of an order of demolition’”.

The prosecution besides; the above facts has placed before the Court that at present a road widening scheme is in progress in the area the cost of which is many hundred thousands pounds, and which is delayed due to the existence of the kiosk this affects adversely the scheme as well as the traffic and it also affects the public interest.

On the above facts the prosecution applied that a demolition order be made by the Court exercising its discretion. As to the discretion he referred to a number of cases in particular to Improvement Board of Kaimakli v. P.Sevastides (1967) 2 C.L.R. p.117 and Municipality of Larnaca v. Petros Madellas (1982) 2 C.L.R. p.177 and the similarity of facts of the last case to the one at hand. [*200]

Learned counsel for the accused submitted that a demolition order should not be made in view of the following facts which he placed before the Court in addition to those appearing in the judgment of the Supreme Court in recourse 149/84 and which appear earlier above in this judgment.

(a)That the kiosk was there before the Republic i.e. for many years.

(b)The appropriate authority was receiving rent for the kiosk from the previous occupant and accused was paying rent to the previous occupant accused is bona fide occupant.

(c)For the street widening scheme notification for compalsory acquisition and requisition was published but no reference is. made to the kiosk or the road-street or square which is situated.

(d)Accused had notice for the first time on 14.3.81 as to the kiosk being objectionable, and when a letter addressed to the kiosk by Ministry of Communication and Works and delivered to accused (vide A) dated 1.11.1983 cyclostyled.

(e)Accused has made proposals to the appropriate authority for the removal of the kiosk.

I come now to examine the question whether a demolition order should be made in the present case. [*201]

The Court in exercising its discretion bears in mind what was said by Vasiliades P. in delivering the

unanimous decision of the Supreme Court in the case of Improvement Board of Kaimakli v. Pelopidas Sevastides (1967) 2 C.L.R. 117 at p.124:

“It is significant in this connection, that the provision of the law in this section for a demolition

order, was peremptory until 1963 when it was amended (by Law 67 of 1963) so as to bring the statutein conformity with the

Constitution as interpreted in proceedings of such nature and was made discretionary . But this change cannot be understood or applied in a manner frustrating the very purpose for which the law exists; and for which the provision about a demolition order is contained in the statute. There may be cases where a demolition order need not be made; where for instance, some condition in the permit has not been complied with, or there occurred an infringement of minor importance. But this is not one of such cases.”

The above principles were followed in subsequent cases of Golden Sea-side

Estate Co.Ltd., v. The Municipal Corporation of Famagusta (1973) 2 C.L.R. 58, the Municipality of Nicosia v. Nicos Pierides (l976) 2 C.L.R. p.1 and District

Officer of Ljmassol and another v. Mathe-°s Nicolaou (1980) 2 C.L.R. p. 100.[*202]

A review of the principles governing the exercise of the judicial discretion in the making of demolition or other similar orders was made in the cases Vine Products Board v. Demetra Touttoula (1982) 2 C.L.R.112 and Municipality of Larnaca v. Madellas (1982) 2 C.L.R. 177. His Honour Mr. A.Loizou J. who delivered the unanimous decision of the Court in both the above cases, in the latter at pp. 181-2 said:-

“In the exercise of their discretion Courts should be guided by. the principle that such discretion should be exercised in a manner which will not frustrate the very purpose for which the law exists and for which the power to make such orders is contained in the laws so that under no circumstances a would-be offender or an offender should feel that he can, or can continue to, enjoy the spoils of his illegality by paying only the premium of a monetary sentence or even of imprisonment, which in the present case was neither but ail absolute discharge.”

“Having considered carefully the present case in its totality, including the fact that the said kiosk stands on public land, we have come to the conclusion that the learned trial-Judge has exercised his discretion wrongly in not making a demolition order as this is neither a case where the infringement was a mere technicality or of minor significance, nor there exists any abuse of the process of the Court as we have already indicated.” [*203]

In the light of the above authorities and regard being had as to the facts and submissions advanced in the present case I examine the position concerning the making of a’ demolition order. The accused advanced two propositions (a) that he was paying rent and (b) that he has purchased it (vide letter of 24.11 1980) obviously accused made no inquiries to find out that the kiosk was not the property of the person from whom he bought it and in any case no title has passed. The kiosk is situated on public road the property of the government, The fact that the kiosk existed for many years or before the Republic was established is immaterial as there is no allegation that it was built at a time when there was no law covering the erections of building without permit. In fact such a law existed well before the Republic and the present law which consolidated the previous laws was enacted in 1946 and on the facts before me a number of years before the erection of the kiosk.

The fact that rent was paid at sometime for the kiosk is neither here nor there and the approach on this issue the case of District Officer of Ljmassol and another v. Matheos Nicolaou (supra) deals with the matter.

As to the contention of learned counsel for accused that the property is not mentioned on the notification for compulsory acquisition or requisition, is considered unfounded because it could not be included as being public road and property of the Republic.

Accused has had noticed as regards this kiosk well before the time he alleges i.e. on 14.3.81 as on the 10.11.80 [*204] the appropriate authority has addressed a letter to the accused to which the accused replied on 24.11.80 in which inter alia he was stating that he was prepared to move elsewhere (see quotation from judgment in recourse 149/82 above.)

Bearing in mind all the circumstances of the case in their totality including the fact that this kiosk stands on a public road I come to the inevitable conclusion that this is not a case of an infringement of mere technicality or of minor significance, in substance is of very grave effect to the public interest and the obstruction of the free passage of the public and a permanent obstruction to the public road, therefore a demolition order becomes imperative.

Accused is sentence as follows: count I £10 fine and order to demolish the kiosk refered to in this count unless within two months from today he obtains a permit from the appropriate authority.

Count 2 - £10 fine.

Count 3 - £10 fine.

Accused to pay £10.- fine on each count and ordered to demolish kiosk with in two months.