ΤΗΕ building development seen in towns with the construction of apartment buildings between houses is now a necessity due to the lack of available plots. The adverse effect on amenities such as light, air or causing nuisance give the right to the owner to request the competent Authority take the necessary measures for the protection of his property. In this respect, the competent Authority, before deciding to grant the town planning permit, is obliged to take into account every relevant factor and to invite to a public hearing every person affected by the intended development. The Town Planning and Housing Law provides that the town planning authority takes into consideration the provisions of the applicable development plan and any other essential factor, but not external. The issue of a town planning permit in disregard of the rights of the neighbour entitles him to invoke that he has a legitimate interest to apply for the annulment of the permit. The town planning Authority is obliged by law to ensure that the independent operation, the comfortable possession and enjoyment of the development and or of any of its units will not substantially affect the amenities of the area or the neighbouring properties.
Every affected person should file a recourse to the Administrative Court both against the town planning and the building permit. Otherwise, if he files the recourse only against the town planning permit, the building permit will remain valid and consequently the recourse will be considered incomplete and will be dismissed as inadmissible. The judgment issued by the Administrative Court on 9.8.2022 indicates the way in which the affected neighbour must act to safeguard his rights. In particular, the applicant, who was the owner of a neighbouring property and claimed that the decision of the Municipality as a town planning Authority to authorise the development of an apartment building, filed a recourse only against the town planning permit and failed to challenge the building permit. Moreover, he failed to specify the damage from the construction of the apartment building next to his house.
The Court examined the preliminary objection raised by the Municipality and the interested party, whether the applicant’s failure to challenge the building permit rendered the recourse null and void. The Court pointed out that there is a binding decision of the Supreme Court in which it was decided that the building permit not being challenged creates a gap in the event of annulment of the town planning permit which cannot be covered. Consequently, in this case, the non-challenging of the correctness of the building permit issued makes it legal, creating a gap, which cannot be covered.
The Court also emphasised it was not convinced there definitely be damage to his interests. With regard to the issue of legitimate interest, the Court pointed out that caselaw has recognised that the recourse against the town planning permit is possible provided the contested administrative act affects his plot, an affection presumable from the suggestion that his interests will be negatively affected or damaged. It is expected that the existing or with certainty future damage is clearly stated in the recourse. The legal protection provided for future damage must be based on certain facts of the present and general and vague references or complaints of affecting the interests and comforts of the neighbours are not sufficient.
The Court concluded the facts did not assist the applicant, who failed to raise specific aspects of his affection beyond the level of theoretical damage. The reference that the construction of the disputed building next to his house will affect its amenities and the path of the light as factors which negatively affect his property, does not constitute a precise determination of the existing or with certainty upcoming damage. The Court consequently decided that the applicant had no legitimate interest and dismissed the recourse as inadmissible.
George Coucounis is a lawyer practicing in Larnaca and he is the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]