Cyprus Mail
Property

When it is possible to have town planning decisions annulled

When examining applications for development purposes, the appropriate town planning and housing authority takes into consideration every essential factor, which must be relevant, justified and not lead to the deprivation of the property right as established by the Constitution. The publication of a notice or of the order for compulsory acquisition or requisition or even the local plan do not constitute an essential factor justifying the dismissal of the application for the issue of a town planning permit.

Any reference to the aforesaid factors does not constitute lawful justification for the town planning authority to refuse the issue of the permit, since the owner of the land remains registered until the administrative authority registers the property in its name after the payment of the relevant compensation. The approach that the administration is entitled to legally recognise and apply the acts of other administrative organs as valid is not correct since it presupposes compliance with their decision.

The President of the Administrative Court in recent judgments adopted the consistent case law of the Supreme Court regarding the protection of ownership of an immovable property, stating that the owner can even challenge the compulsory acquisition order as an illegal justification for the dismissal of his application to develop his land, until the administration registers the land in its name.

The Town Planning and Housing Department in the aforesaid cases justified their decision not to issue permits for the division of pieces of land into plots stating that the Department of Antiquities undertook the procedure for their compulsory acquisition and therefore any development could not have been authorised. It underlined that there had been an exchange of views with the Department of Antiquities, the answer of which constituted an essential factor in the decision making.

The owners alleged the decisions in question were illegal, the intention for compulsory acquisition does not cause deprivation of ownership and that the town planning authority, through its decision, contravenes the European legislation, since it leaves the immovable property dormant, creating de facto deprivation of the right of enjoyment by its owner. The court ruled the division of the land into plots in view of compulsory acquisition is an illegal and onerous measure.

The Administrative Court held that in the cases in issue the owners’ applications should not have been dismissed since the compulsory acquisition had not been completed and it could not have been an essential factor; consequently, it annulled the town planning decisions. Any future compulsory acquisition could not be a valid reason for the dismissal of the applications, or even the order for acquisition if issued, prior to the completion of the registration of the land in the name of the acquiring authority.

The court further referred to other case law, where it was decided the beneficiary of contractual rights over an immovable property, which has not been registered in his name, as in the case of a buy-back agreement, is entitled to file an appeal against an administrative act adversely affecting his contractual rights. The meaning of the term “essential factor” was interpreted that it should be relevant to the purposes of the Town and Planning Law and the existence of an order of requisition, through which the administrative authority has the temporary right of possession of the property in issue, is not related in any way to the provisions or the purposes of the law and it does not constitute an essential factor.

 

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288,coucounis.law@cytanet.com.cy, www.coucounislaw.com



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