Cyprus Mail
Property

Annulment of compulsory acquisition order

The compulsory acquisition of an immovable property for a public purpose constitutes an essential administrative act, which is conducted in two stages: the decision of the responsible authority to publish the notice of acquisition, and the decision based on which the order for compulsory acquisition is issued. This decision is an executory act which can be the subject matter of a recourse before the Administrative Court.

When taking such a decision affecting property rights, the Administration must carry out an appropriate search, record in relevant minutes all the elements influencing its final decision and justify it, giving the opportunity to the Court to review the decision in the event of a recourse. Case-law states that a decision for compulsory acquisition requires that all possibilities for achieving its purpose are exhausted in the least onerous way and the minutes of the decision constitute a prerequisite of good governance.

The Administration is not entitled to attempt to legalise an illegal act afterwards, such as the opening of a road without compulsory acquisition. Such acts of the Administration affect the property right enshrined in the Constitution and any intervention must be made in such a manner that leave no room for doubts or questions, such as the preparation of a plan showing precisely the extent and the exact part of the property under acquisition, so that the compulsory acquisition order is surrounded with legality.

The decision of a Municipal Council to issue an order for the compulsory acquisition of part of a property for public interest purposes was the subject of a recourse before the Administrative Court, which also examined the issue of the Council not keeping proper minutes. The court in its judgment issued on 23.3.2018 referred to the above principles, as well as to the need of keeping proper minutes as a prerequisite to enable the court to review the decision.

The affected owner filed a recourse against the legality and the validity of the decision of the Municipal Council to issue a compulsory acquisition order for part of his land, alleging that the administrative act aimed to legalise afterwards an illegal act against him and in particular the illegal trespass on his property for many years through the opening and the construction of a road, which the Council continues to maintain and repair.

The court focused on the minutes included in the administrative file, where only a single paragraph was written with regard to the compulsory acquisition, without recording any discussion between the members of the Council, without stating who kept the minutes and, most important, the minutes were not signed.

The court underlined that, further to the decision of the Municipal Council to proceed with the compulsory acquisition, nothing was stated in the minutes as regards the circumstances which led to the aforesaid decision. The Council had to record all the elements which formed its final decision, especially while the owner strongly protested against the compulsory acquisitions and there were allegations regarding an illegally constructed road without his previous consent.

The court also held that in addition to the inadequacy of the search carried out by the Council, the reasoning given on the issue was inadequate, too. The Council should have recorded in the minutes why no other less onerous solution was not preferred, having in mind the long-standing approach by case-law that compulsory acquisition is an injurious and onerous measure, because it deprives the owner of his land and that the nature of such a decision requires search and exhaustion of the possibilities to achieve the objective in another, less onerous manner. The court concluded that there was also lack of proper search and insufficient reasoning of the administrative act and annulled it.

 

n George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, [email protected]www.coucounislaw.com

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