An enforcement notice can be appealed to the Minister of the Interior within the period it states, and the appeal suspends it. A later planning permission can end it.
In the reported cases the notice came from the District Town Planning Office or from a municipality acting as Planning Authority. It says that a building, an extension or a use on the property has no planning permission, or breaks the conditions of one, and it gives a period within which the owner must demolish, alter or stop. It is served under section 46 of the Town and Country Planning Law, Law 90/1972.
The period in the notice is the time the owner has to respond, and the law gives several ways to do it. This note explains what the notice is, the appeal to the Minister of the Interior and what it suspends, the grounds that succeed, how a later permission ends the notice, and what follows if nothing is done. The wider rules on planning and building permits are on our page on planning permits in Cyprus.
What the notice is
An enforcement notice is the Planning Authority's formal demand to put right development it considers unlawful. Section 46(1) allows it where development was carried out without the planning permission it needed, or where the conditions or limitations of a permission were not kept, and the Authority considers a notice expedient in the interest of proper planning.
Under section 46(2) the notice is served on the owner and on the occupier, and it may also be served on anyone else whose interest in the property is materially affected. Under section 46(3) it must state the development said to be unauthorised, or the respects in which the conditions were not kept, and it may require, within a stated period, the steps needed to remove the development or restore the land, including demolition or alteration of buildings, stopping a use, or carrying out works.
Under section 46(4) the notice takes effect when the period it states runs out. Section 4 makes the Planning Authority the Minister or the body to which the Minister's powers have been delegated, which is why the notice may come from a municipality: in the Paphos Transport Organisation case (2018) it was the Mayor of Paphos.
The appeal to the Minister of the Interior
The appeal must be made within the period stated in the notice. Section 47(1) lets the person served, or anyone else with an interest in the property, appeal to the Minister of the Interior at any time within the period at the end of which the notice takes effect. Under section 47(2) the appeal is a written notice setting out the precise grounds on which it rests.
The appeal suspends the notice. Under section 47(3) the notice has no effect until the appeal is finally decided or withdrawn, with one exception: any part of the notice that requires building or other works to stop. In Theodorou (2014) the Supreme Court explained that the suspension concerns the criminal liability that would otherwise follow once the period for compliance has passed.
The period in the notice is the time to act. An appeal filed within it puts the notice on hold until the Minister decides.
The grounds that work
The appeal succeeds on the grounds the law lists, so it has to be built on them. Section 47(1) gives five:
- that planning permission was granted for the development;
- that no planning permission was needed, or that the conditions of the permission were kept;
- that what the notice describes is not development at all;
- that the notice requires more than is needed to restore the land to its previous state, or to secure compliance with the conditions;
- that the notice was not served on both the owner and the occupier.
In Karma Estates (2013) the owners appealed against a notice to demolish two houses built without permission, arguing that they had withdrawn their planning application on the Department's advice and had asked for it to be reconsidered. The Supreme Court upheld the Minister's rejection: those arguments did not fall within the grounds of section 47(1), which it described as set out exhaustively. It also rejected the argument that buyers of the houses would suffer, holding that rights cannot be founded on the unlawful use of a building.
The fourth ground is about proportion. A notice may not demand more than is needed to restore the land or to secure compliance with the conditions, so a requirement to take down a whole structure where less would do is open to challenge on it.
The Minister's decision and the court
The Minister has wide powers on the appeal and must exercise them personally. Under section 47(4) the Minister may correct an immaterial irregularity, defect or error in the notice, and may uphold it even though it was not served on both owner and occupier, if nobody entitled to service is seriously prejudiced. Under section 47(5) the Minister gives directions to give effect to the decision, including quashing the notice and granting planning permission, with or without conditions. In Cyprus Limni Resorts (2011) the Minister amended the notice to add and remove plots before upholding it.
The decision must be the Minister's own. In Triantafyllidou (2006) the Supreme Court annulled the rejection of an appeal because the file held only an officer's recommendation with an initial beside it, and did not show that the Minister had decided. In the Paphos Transport Organisation case (2018) the Administrative Court annulled a rejection approved by the Ministry's Director General, holding that only the Minister has the power, and before deciding it had issued a provisional order suspending execution of the notice.
The Minister's decision is challenged by a recourse to the Administrative Court under Article 146 of the Constitution, within seventy five days. In Triantafyllidou, Karma Estates, Cyprus Limni Resorts and the Paphos Transport Organisation case, the recourse was brought against the Minister's decision on the appeal.
Legalising the development
Planning permission granted after the notice ends it, to the extent the permission covers. Section 51(1) provides that if planning permission is granted for keeping the buildings or works, or for continuing the use, the notice ceases to have effect so far as it requires their demolition, alteration or ending. Under section 51(2) the same applies where permission is granted for keeping the development without complying with a condition of an earlier permission.
Section 51(3) keeps liability for any offence already committed by not complying before the notice ceased to have effect, so timing matters. The order of permits matters too: in Theodorou (2014) the Supreme Court, sitting as a full bench, held that a retrospective building permit cannot be issued without planning permission for the same works, and that the suspension of the notice did not stop the authority from refusing one on the breaches the notice described.
If nothing is done
A notice that is ignored leads to prosecution, fines and works carried out at the owner's cost. Under section 48(1) an owner who does not take the steps the notice requires within the period for compliance commits an offence, and under section 48(4) a further offence, with a fine for each day, if after a first conviction they do not do everything in their power, as soon as practicable, to comply. Under section 48(7) the period for compliance runs from the date the notice takes effect, subject to the suspension in section 47(3).
Section 48A lets the Planning Authority impose an administrative fine, by a reasoned decision after hearing the person or giving them the chance to be heard, whether or not there is a prosecution. A hierarchical appeal to the Minister against the fine lies within thirty days of its notification.
Under section 49 the Authority may enter the property, carry out the works the notice requires and recover its reasonable costs from the owner. It may not enter a dwelling without a court warrant, any other building without eight days' written notice to the occupier, or other land without one day's written notice, unless the occupier consents in writing.
Selling does not end the notice. Section 48(2) and (3) allow an owner who sold before the period for compliance expired to bring the later owner before the court, and the later owner may be convicted where the failure was theirs.
What this means in practice
Note the date of service and the period. The appeal to the Minister of the Interior has to be made within the period stated in the notice, and everything else follows from that date.
Appeal in writing, on the statutory grounds. Set out precisely which of the five grounds in section 47(1) applies and why, with the permits, plans and photographs that show it.
Keep works stopped. The appeal suspends the notice, but not a requirement to stop building works.
Consider planning permission at the same time. A permission for what was built ends the notice to that extent under section 51, and a retrospective building permit needs it first.
Check who decided. A decision on the appeal must come from the Minister personally; if it does not, it can be annulled by a recourse within seventy five days.
Questions we are asked
I received an enforcement notice from the Planning Authority. What is it?
It is a notice under section 46 of the Town and Country Planning Law, Law 90/1972, served when the Planning Authority considers that development was carried out without planning permission, or that the conditions of a permission were not kept. It states what the breach is said to be and what must be done, such as demolition, alteration or stopping a use, and it takes effect when the period it states runs out.
How long do I have to react?
The period stated in the notice. Under section 47(1) an appeal to the Minister of the Interior may be made at any time within the period at the end of which the notice takes effect, so the date the notice arrived and the period it gives are what count.
Does an appeal to the Minister stop the demolition?
Yes, for as long as the appeal is pending. Under section 47(3) the notice has no effect until the appeal is finally decided or withdrawn, except for any part that requires building or other works to stop.
On what grounds can I appeal?
Section 47(1) lists five: that planning permission was granted; that no permission was needed, or its conditions were kept; that what the notice describes is not development; that the notice requires more than is needed to restore the land or secure compliance; and that the notice was not served on both the owner and the occupier. In Karma Estates (2013) an appeal resting on other arguments failed.
Who decides the appeal?
The Minister of the Interior personally. Decisions on enforcement notice appeals were annulled in Triantafyllidou (2006), where the file did not show that the Minister had decided, and in the Paphos Transport Organisation case (2018), where the approval came from the Ministry's Director General.
Can I still legalise the building?
Section 51 provides that if planning permission is granted after the notice for keeping the building or continuing the use, the notice ceases to have effect to that extent. Liability for an offence already committed by not complying is not affected. A retrospective building permit needs planning permission first, as the Supreme Court confirmed in Theodorou (2014).
What happens if I do nothing?
Not complying within the period is an offence under section 48, and a further offence, fined by the day, if the notice is still not met after a conviction. Section 48A lets the Planning Authority impose an administrative fine after hearing you. Under section 49 the Authority may also enter, carry out the works itself and recover the cost from the owner.
Sources
- The Town and Country Planning Law of 1972, Law 90/1972, consolidated text, sections 4, 5 and 46 to 52, CyLaw
- Paphos Transport Organisation (OSYPA) Ltd v. Republic and another, Case No. 1145/2016, Administrative Court, 11 May 2018
- Theodorou v. District Officer of Paphos, (2014) 3 AAD 585
- Karma Estates Ltd v. Republic, Case No. 335/2010, Supreme Court, 16 September 2013
- Cyprus Limni Resorts and Golfcourses Plc v. Republic, Case No. 528/2009, Supreme Court, 26 July 2011
- Triantafyllidou v. Republic, Case No. 548/2004, Supreme Court, 17 April 2006
This article is provided for general information purposes only and does not constitute legal advice.
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