05.09.2022
The development of ΤΗΕ development observed in cities, with the construction of apartment buildings between houses, is now a necessity due to the lack of vacant lots. Negative impact on amenities such as light, air or inconvenience gives the owner the right to require the competent authority to take the necessary measures to protect his property. In this regard, the competent authority, before deciding whether to issue a town planning permit, must take into account all relevant factors and invite to public hearings all persons affected by the proposed development. The Urban Development and Housing Act provides that the urban planning authority shall take into account the provisions of the applicable development plan and any other significant factors other than external ones. The issuance of a town planning permit without taking into account the rights of a neighbor gives him the right to claim that he has a legitimate interest in filing an application for the annulment of the permit. The City Planning Authority is required by law to ensure that the independent operation, comfortable ownership and use of the development and/or any of its parts does not significantly affect the beautification of the area or neighboring properties.
Each affected person must file a complaint with the Administrative Court for both urban planning and building permits. Otherwise, if he files a claim only against the town planning permit, the building permit will remain valid and therefore the claim will be considered incomplete and will be rejected as inadmissible. The decision, handed down by the Administrative Court on August 9, 2022, indicates how the affected neighbor must act to protect their rights. In particular, the applicant, who was the owner of a neighboring plot of land and argued that the decision of the municipality, as an urban planning authority, to allow the construction of an apartment building, brought an action only against the urban planning permit and did not challenge the building permit. Furthermore…
The court considered the preliminary objection raised by the municipality and the interested party as to whether the applicant’s refusal to challenge the building permit would invalidate the application to the court. The Court pointed out that there was a binding decision of the Supreme Court in which it was decided that a building permit, not challenged, created a gap in the event of an annulment of a town planning permit that could not be closed. Therefore, in this case, the indisputability of the correctness of the issued building permit makes it legal, creating a gap that cannot be filled.
The Court also emphasized that it was not convinced that its interests would definitely be harmed. As regards the question of legitimate interests, the Court pointed out that the jurisprudence recognized that an appeal against a town planning permit was possible provided that the disputed administrative act affected his site, which could be assumed from the assumption that his interests would be adversely affected or damaged. It is expected that existing or with certainty future damage will be clearly indicated in the appeal. The legal protection provided for future damages must be based on certain facts of a present and general nature, and vague references or complaints that they affect the interests and comfort of neighbors are not enough.
The Court concluded that the facts did not help the applicant, who did not raise specific aspects of his attachment above the level of theoretical prejudice. The reference that the construction of the disputed building next to his home will affect his amenities and light path as factors negatively affecting his property is not an accurate definition of existing or with certainty future damage. Consequently, the Court decided that the applicant had no legitimate interest and dismissed the claim as inadmissible.
George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
