Town planning decisions without sufficient reasoning

The department of town planning and housing and the municipalities acting as town planning authorities are materially responsible for the granting of town planning permits, authorising building or the execution of any substantial change in the use of a building. As competent planning authorities, they must apply the legislation in a correct and fair manner and adequately justify decisions, refraining from seeking to serve private interests.

From a study of the jurisprudence, it appears that there are many cases where the town planning authority makes errors when deciding to issue or refuse to grant a permit and several decisions have been annulled by the administrative court due to a lack of sufficient reasoning. As emphasised in the jurisprudence, in order for judicial review to be possible, it should be clear what the town planning authority had in mind when making its decision.

The application for a planning permit must be signed by the owners of the property under development, unless it is an internal alteration of a building, residence, apartment or other property with a property title, in which case the application is signed by the owner. However, if the development involves a substantial change in use that affects a neighbouring property, then the application is also signed by the affected owner or consent is provided.

The owner of a unit in a jointly owned building may, upon permission from the town planning authority, carry out conversions or modifications inside their unit, as long as there is no impact on or damage to another unit or the building. Article 38D of The Immovable Property Law, Cap.224, provides that the owner of each unit may make changes, additions or repairs to their unit, provided that: (a) the rights of the owner of any other unit are not violated nor do they interfere with the use of it by its owner, (b) they do not in any way affect the common property, the smooth operation or use thereof by its owner, or (c) they do not in any way affect the walls supporting the common building, its external walls or any part of its frame or do not in any way endanger safety or alter the external appearance of the jointly owned building.

The judge of the administrative court, Mrs Elita Gavriel, in a decision she issued on September 25 in case 701/2020, examined the recourse of the owner of two apartments in a single residential complex, which she wanted to merge. A planning permit was refused by the authority and the hierarchical recourse rejected by the ministerial committee. During examination of the application and evaluation of the proposed conversions by the authority, it was determined that the interests or comforts of the owners of the other units of the residential complex did not appear to be affected in any way. Nevertheless the authority rejected it based on the consultation with the district lands officer, saying the application would have to be signed by all the owners of the complex.

The court held that the overriding reason for the rejection was that the application was not signed by all the owners. The judge added that what the owner and the planning authority mentioned before the ministerial committee remained unanswered, since the rejection decision was based on positions and opinions that were not taken during the essential time of examining the hierarchical recourse.

She found that what was recorded in the note brought to the attention of the ministerial committee contained a contradiction regarding the final negative conclusion, since the findings of the town planning authority did not support this.

The committee concluded by issuing a rejection, without specifying which provision, of either the relevant regulations or the legislation, states that the signatures of all the owners of the jointly owned building.

Finally, the court adopted the jurisprudence of the Supreme Court on the need for sufficient reasons for administrative decisions to permit judicial review. It concluded that it is not the court’s task to substitute reasoning where it is missing from the decision or where a contradiction or objection arises in the elements of the administrative file and it annulled the contested decision.

George Coucounis is a lawyer practicing in Larnaca and the founder of GEORGE COUCOUNIS LLC, Advocates & Legal Consultants, www.coucounis.law, [email protected]