‘It constitutes the first step in checking the correctness of the decision’
IF someone isn’t happy with a town planning decision regarding a permit to develop immovable property, they can file a hierarchical recourse before the Council of Ministers through the Minister of Interior. Such a recourse can be filed against planning authority refusal to issue a permit or against any term imposed thereby. This right is mentioned in the notification of the refusal or the granting of the permit, as well as that the recourse must be filed within 30 days from receipt of the decision.
The affected person must pay the necessary charges and deliver a copy of the recourse to the town planning authority. There is a relevant provision in the law giving power to the Council of Ministers to accept or dismiss the recourse or to annul or amend any part of the town planning decision. They can also examine the original application as if it had been submitted to them.
The hierarchical recourse is a way of examining the correctness of town planning decisions and provides an alternative to filing a recourse with the administrative court. It is a relatively quick and low-cost procedure and therefore preferable. The decision of the Council of Ministers can be the object of a recourse before court if the complainant is adversely affected, a second chance to have the legality of the decision examined.
A hierarchical recourse is submitted in the form of a letter, in which the complainant states the facts of their case and the reasons for the recourse, along with the relevant documentation. The charges are very low and imposed per residential unit. In the case of a touristic, commercial, industrial, agricultural or other development, the charges differ accordingly. The town planning decisions against which a recourse can be filed concern the town planning and housing department and the town planning authorities of municipalities.
A ministerial committee is established empowered to decide on the recourse by the Council of Ministers. The committee examines the facts and legalities and the reasons for the recourse and decides accordingly. When the recourse is accepted, the committee calls on the town planning authority to re-examine the application and the latter must comply.
According to case law, the town planning permit is a prerequisite for development of land. The term ‘development’ has a broad meaning in the law and includes any substantial change of the character or use of an immovable property. A mechanism is set up for clarifying any doubts regarding the nature of proposed works and if they constitute development. The permit is connected with the land and normally lasts three years unless its terms provide otherwise. Moreover, it constitutes a single administrative measure regarding both the proposed development and the terms upon which it will be carried out.
The administrative court often annuls town planning decisions, which have been criticised judicially, such as cases in which the town planning authority omits to reply, refuses to issue a permit due to proposed widening of the public road network without street planning, the preservation of a piece of land for future construction of a public school or for any other project, the encouragement for the submission of an application for the division of a land into plots and the subsequent change of its terms or the imposition of drastic terms affecting the development, the existence of a notice or order for compulsory acquisition, the imposition of a term in the permit in favour of a third person or even a reply through a letter, the content of which is not understandable with the aim causing delay by being unclear.
Consequently, fair treatment of an applicant by the town planning authorities should be demonstrated through the legality of their decisions, since they are in an advantageous position. The hierarchical recourse constitutes the first step for the protection of apllicants.
George Coucounis is a lawyer practicing in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, email address: [email protected]