Claim must be submitted within six months from the date of the notice of the town planning decision
When seeking compensation due to land value being negatively affected by a condition imposed in a town planning permit, a claim must be submitted to the town planning authority within six months from the date of the notice of the town planning decision. This is regulated by article 67 of the Town and Spatial Planning Law, L.90/72
If no claim is made within six months, the right to compensation ceases to exist, unless the competent Minister of Interior grants reasonable time extension, due to the owner’s absence from Cyprus, illness or another reasonable cause.
The claim for compensation is submitted in accordance with the Town and Spatial Planning (Compensation) Regulations of 1990, 56/90, in two copies to the town planning authority, as provided for in the Annex to the Regulations.
The relevant form contains the details of the applicant, the date of acquisition, the cadastral details of the property, as well as the details of any mortgagee or memo beneficiary, tenant or other person with a stake in property. It shall also state the details and amount of the claim for compensation, and whether the claim is due to a refusal of an application or the granting of a licence under onerous conditions.
The town planning authority prepares and submits to the minister a report on the provisions of the development plan and on any other more favourable town planning decision that could be issued. If the minister fails to act or there is a challenge to their decision, any person with a legal interest may apply to the court for remedy.
Conditions are usually imposed in a town planning permit concerning the concession of part of a property. An applicant who accepts the issuance of a permit and implements execution of the building project, without submitting a claim for compensation, ceases to have any right to the part of the property that was granted to be used for a road or any other purpose. Any notice of compulsory acquisition published in the future for the affected part of the property, shall not entitle the owner to claim compensation.
The purpose of the notice of compulsory acquisition is to register the part of the property that is affected and acquired, in the name of the Republic, which by law belongs to it.
The Supreme Court dealt with this matter, in the decision it issued in C.A. 8/2015, on July 25, which concerned an appeal by a property owner against the decision of the court of first instance that he was not entitled to compensation as a result of the compulsory acquisition. It said he should have claimed compensation under article 67 of the Town and Spatial Planning Law, which he failed to do.
The owner said that this judgement was erroneous. He claimed damages for the deprivation of part of his property and the adverse effect on it as a result of the compulsory acquisition. He further claimed that the conditions imposed in the permits issued were not equated with the restrictions referred to in article 10(4) of the law on compulsory acquisition and that he was being denied the right to claim compensation.
The Supreme Court did not agree with the owner’s position and, referring to relevant jurisprudence, ruled that the court of first instance correctly concluded that the owner’s claim did not concern compensation as a result of compulsory acquisition, but that the owner could submit a claim pursuant to Article 67 of Law 90/ 72 within the prescribed time limit, regardless of the fact that no certificate of final approval had been issued at the relevant time.
It also agreed with the finding that the conditions are considered an integral part of the town planning permit pursuant to article 15 of Law 90/72 and that when the notice of compulsory acquisition was published, the applicant was the registered owner of the part of the property, but his ownership had been transferred to the public and was just pending its registration in the name of the Republic.
Consequently, the Supreme Court dismissed the appeal of the owner as unfounded.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail [email protected], www.coucounislaw.com, tel: 24818288