21 Dec Failure of the District Officer to consult with local authority
Failure of the District Officer to consult with local authority
by George Coucounis
“The District Officer gives his consent to EAC to extend its network through a neighbouring property, after consulting with the local authority’’
The Electricity Authority of Cyprus often needs to extend its network to provide electricity to new residential units or areas under development and in this respect requires the installation of electric poles with supports and wires on neighbouring properties or cables under their ground. The EAC as the contractor shall inform the owners of the affected properties by asking for their consent or if they cannot be found, shall place a sign on the plots and post a notice of its intention. A period of 14 days is allowed from the date of the notice and if the owners do not reply or impose conditions and/or object, the EAC informs them that it will contact the relevant District Officer to obtain his consent to carry out the necessary works to extend its network. At the same time, EAC informs the owners of the affected properties that it undertakes in the future, at its own expense, to move the lines if they obstruct the construction and/or the development of the properties. If the relocation is not feasible for technical reasons, EAC must pay the owner fair compensation and in case of disagreement this will be determined by the competent Court.
The consultation of the District Officer with the competent local government authority, which means the Municipal Council or Community Council, is mandatory and is a legal obligation. Relevant is the provision of Article 31(1) of the Electricity Law, Cap. 170, which provides that the District Officer after consulting the appropriate local government authority may give his consent to the installation of such electric lines, either unconditionally or with such terms and conditions as he deems just. The granting of consent by the District Officer to the EAC, without prior consultation, affects the validity and legality of the EAC’s decision, rendering it subject to annulment on recourse to the Administrative Court.
A property owner who objected to the extension of the electricity network and was affected by the decision of the EAC, which received the consent of the District Officer, filed an appeal to the Administrative Court, challenging as null and void the decision to install an electricity network on the plot of her property. The owner added the District Officer to her recourse after amendment. It was contended that the procedure followed up to the issuance of the impugned decision, as well as the disputed decision, was considered as manifestly illegal, since there was a violation of the provisions of the Law, namely Article 31(1). Specifically, the owner submitted that the consent given by the District Officer is illegal and contrary to the said provision in that the District Officer did not consult the competent local government authority as he was required to do and as expressly mandated by the said provision before giving his consent for the installation of the disputed line and/or electric network.
The Administrative Court in its decision issued on 8.11.2022 in Case No. 933/2019, in this regard, states that at the stage of the arguments, both the lawyer of EAC and the Republic of Cyprus stated that they will not continue to argue the legality of the contested decision, after having established that the ground for annulment raised is valid. The Court pointed out that the nature of the review under the system governing its jurisdiction, it is primarily to review the legality of administrative acts, decisions and omissions of the Administration, in order to restore the rights of the applicants in the field of public law that have been affected.
The Court added that the process of investigating legality, is of an investigative nature and belongs to the Court itself, with the parties playing a supporting role in detecting the facts and establishing the principles governing the determination of legality in each case. With regard to the term “Local Government Authority”, it referred to Article 2 of Cap.170, where it has the meaning given to that term by Article 2 of the Communities Law, which expressly provides that it means a Municipal Council and a Community Council.
It concluded that, the Court having gone through all the documents and material placed before it, it does not appear that there has been any consultation by the District Officer with the local authority, and as a result, a violation of the statutory provision and the prescribed procedure is established. The error and/or defect is catalytic to the ultimate outcome and the violation affects the validity and legality of the impugned decision, rendering it subject to annulment. The Administrative Court consequently annulled the contested decision as null and void.