The full report of the Auditor General for Sun City in Agia Thekla

1. Summary

Following the publication of the television report on the Cyprus Investment Program by the Al Jazeera television network, which involved Political Exposed Persons (RIPs), as well as publications related to a company affiliated with one of these RDPs, which in illegal construction of additional floors in Mixed Tourism Development (MTA) in the Municipality of Sotiras of the Province of Famagusta, in an area adjacent to an area of ​​the "Natura 2000" Network, our Service decided to examine the process of environmental evaluation of the project. The audit was extended to another project, which came to our notice during the audit, related to the same WFP, located within the area under reference "Natura 2000" and erected illegally, as well as to other illegal developments of the Municipality of Sotira, which they do not seem to safeguard or even damage the integrity of the area.

The most important findings that emerged from the audit are summarized below:

• Although the MTA is adjacent to the area boundary of the Natura 2000 Network, the Environmental Authority has issued, in the framework of the implementation of Directive 2011/92 / EU on the assessment of the impact of certain public and private projects on the environment ("SPD Directive") and the then in force on the Environmental Impact Assessment from Certain Draft Laws of 2005 (Law 140 (I) / 2005), positive opinion based on the Preliminary Environmental Impact Assessment (PEEP), without justifying and recording the reasons in on which its conclusion was based, that is, that the proposed project, despite its size and proximity to the area, does not significantly or cumulatively affect other projects, the place. Also, the project was not properly evaluated in terms of its impact on the site, taking into account its conservation objectives, based on Article 6 (3) of Directive 92/43 / EEC on the conservation of natural habitats and wild of fauna and flora ("Habitats Directive").

• The Planning Authority issued the planning permits for a project related to the construction of two houses and which is partially located within the Special Protection Zone (SPA) of the "Natura 2000" Network, without their prior submission to the environmental assessment, in violation of the law and , as a condition, the ex-post taking of opinions by the Environmental Authority. By doing so, the Planning Authority violated both the European and the national institutional framework, as this does not give the Planning Authority the right to approve, prior to the opinion of the Environmental Authority, a project that is subject to a planning permit and which does not is directly connected or necessary for the management of an area which falls within an area of ​​the Natura 2000 Network, but may affect it, either by itself or in conjunction with another project.

• The first development is in an advanced stage of construction and it has been found that this is not in accordance with the approved plans of the urban planning permit. The second development is also in an advanced stage of construction, although a building permit has not yet been secured. Although the competent authorities have identified the irregularities and, in the first case, the TPO has issued a Enforcement Notice, the irregularities still exist. It is noted that the Directors of the company, which is the owner of MTA, as well as their minor children, were naturalized as Cypriot citizens, within the framework of the Cyprus Investment Program. Some of the above persons were employed by the Anti-Concealment Unit.

• We observed great tolerance, in relation to the violations of the legislation, in the two developments by the Urban Planning Authority, Environmental Authority, Game and Fauna Service (YPTH), Municipality of Sotira, as well as the competent Ministerial Committee for examination of hierarchical appeals, based on articles 31 and 32 of the Law on Urban Planning and Spatial Planning and relaxations, based on article 5A of the Law on the Protection of the Beach. It appears that the Authorities in question changed their approach to the matter only after the scandal that came to light, in relation to the Cyprus Investment Program, which involved the resigned Member of Parliament and Director, both of the owner companies (main projects). ), as well as the contracting company.

• The Municipality of Sotiras, for a number of years, exceeding seven, systematically violates the "Habitats Directive", the "Bird Protection Directive", the "SPC Directive", as well as the corresponding national legislation (Law 153 (I) / 2003, L.152 (I) / 2003 and L.127 (I) / 2018), as a result of which the integrity of the area is not preserved or damaged. These violations are also recorded in a Warning Letter from the European Commission and involve the possibility of bringing the Republic of Cyprus to the European Court of Justice.

We drew the attention of both the IT and the TPO, to the overcrowded area, since, according to data of the former, a significant number of positive opinions have already been given for a lot of developments in it.

We stressed that failure to comply with the acquis communautaire may lead to sanctions in the Republic of Cyprus and that, according to a warning letter-Violation no. 2019/2303 of the EU Secretariat General, date 27.11.2019, to the Minister of Foreign Affairs, the Commission, inter alia, expressed the view that “… The Republic of Cyprus, in general and continuously, does not ensure that its authorities submit plans or projects not directly related or necessary for the management of the site , which may, however, significantly affect the site in question, either alone or in conjunction with other projects or projects, in a proper Impact Assessment (EI) of the site, taking into account the site conservation objectives and, based on the conclusions of the impact assessment for the site, agree on plans or projects only after ensuring that they do not prejudice the integrity of the site in question… ", in breach of Article 6 (3), in conjunction with Article 6 (7) of the "Habitats Directive".

We have drawn the attention of the Minister of Interior to the fact that the actions of the TPO, for the systematic issuance of urban planning permits for projects and projects that, based on the current national and Community legislative framework, are subject to ex ante environmental assessment, before this is done, are inadmissible and should be investigated in connection with the commission of disciplinary offenses.

Regarding the construction project of two houses, the possible responsibilities of the Municipality of Sotira, as the competent Authority for the issuance of a building permit, should also be investigated, both regarding the promotion of the project planning permits to the Environmental Authority, despite the illegal start of construction works by the developer, as well as its failure to inform the Environmental Authority in relation to the illegal start of works.

2. Import

"Natura 2000" sites are intended to protect areas considered essential for selected flora and fauna species or habitat types among those covered by Directive 92/43 / EEC on the conservation of natural habitats and of wild fauna and flora (" Habitats Directive) and Directive 2009/147 / EC on the conservation of wild birds ("Birds Protection Directive") (formerly Directive 79/409 / EEC). These are species and habitats that are considered to be of European importance because they are threatened with extinction, are vulnerable, rare or endemic or are excellent examples of typical features of one or more of the nine biogeographical regions of Europe.

Special Conservation Areas (SPAs), Sites of Community Importance (SCIs) and SPAs are collectively referred to as "Natura 2000" sites. The SPAs are areas that have been designated as such, based on the "Avian Protection Directive", while the SCC and EZD, based on the "Habitats Directive". The SCIs and the ESDs are geographically identical, while the only difference between the two is the level of protection provided.

The Directive on the Protection and Conservation of Wild Birds (79/409 / EEC), provided for the protection, management and conservation of bird species, which occur naturally within the borders of the European Union, through various mechanisms. These areas are known as SPAs, within which the Member States are required to take all necessary management measures in order to prevent any degradation and / or destruction of the habitats, but also to disturb the species found in them.

The aim of Directive 2011/92 / EU on the assessment of the impact of certain public and private projects on the environment ("SPD Directive"), as amended by Directive 2014/52 / EU, is to take all necessary measures to ensure that ensure that, prior to authorization, projects that may have a significant impact on the environment due, inter alia, to their nature, size or location, are subject to an obligation to authorize and assess their impact. As is explicitly stated in the provisions of both Article 2 (1) of the "SPC Directive" and Article 17 (1) of the Law on Environmental Impact Assessment by Certain Draft Laws (Law 127 (I) / 2018) , the assessment of the impact on the environment, by some public and private projects, must precede the permit issued by the Urban Planning Authority.

Directive 92/43 / EEC on the conservation of natural habitats and of wild fauna and flora ("Habitats Directive") provides for the development of an environmental impact assessment, in particular for the European Ecological Network "Natura 2000" . Therefore, the purpose of the DE is to ensure the protection and integrity of the areas of the "Natura 2000" Network. Annex 1 describes the process of environmental assessments and Annex 2 the relevant provisions of the Law on Environmental Protection of the Criminal Law (Law 22 (I) / 2012).

The audit was carried out in order to examine the procedures for issuing an opinion by the Environmental Authority, a planning permission from the Planning Authority and a building permit from the competent Authority, in particular as regards the environmental impact assessment, in accordance with the European and national institutional framework. two developments in the Municipality of Sotiras of the Province of Famagusta, one of which is adjacent and the other is located in a plot that falls within an area of ​​the "Natura 2000" Network.

The first development concerns the implementation of a very large MTA, the southern part of which is adjacent to the limit of the SPA of the Network "Natura" 2000 "Agia Thekla Area - Liopetri" (CY3000009) and which consists of a five-storey 5 * hotel unit, complex of 39 tourist four-storey apartments and a tourist complex with 11 luxury homes.

The second development concerns the project for the construction of two houses and is located in a plot, part of which falls in the same protected area. In addition to the two aforementioned developments, we examined, related to the coastal front of this SPA, illegal activities / projects of the Municipality of Sotira.

3. Purpose of the audit and methodology

3.1 Institutional framework of responsibilities of the Auditor General

The audit was carried out within the constitutional responsibilities of the Auditor General of the Republic and his provisions on Financial Responsibility and the Financial Framework Law (Law 20 (I) / 2014).

Article 116 of the Constitution of the Republic of Cyprus stipulates that the Auditor General audits on behalf of the Republic all receipts and payments and all accounts of cash and other assets or other liabilities undertaken by the Republic or created on its behalf. For this purpose, the Auditor General has the right to inspect and control all relevant books, records and statements, as well as the places where the above assets are kept. Also, the Auditor General exercises any other authority or performs any other duties or obligations that are determined or assigned to him by Law.

According to article 81 of the Law on Financial Responsibility and the Financial Framework Law (Law 20 (I) / 2014), the Auditor General conducts the external audit of the accounts of the Republic.

Also, according to article 109 of the Law on Financial Responsibility and the Financial Framework Law (L.20 (I) / 2014), the Auditor General conducts the external audit of the accounts of each entity of General Government, Local Government Authority, state organization and state company.

According to the Law on Accounting and Financial Management and the Financial Control of the Republic (Law 38 (I) / 2014), the auditing officer of each item must ensure the correctness and legality of receipts and payments and the efficiency, effectiveness and economy of the implementation of the relevant budget on the basis of the principles of sound financial management (Articles 7 (1) and 8).

To this end, the Audit Office conducts financial and administrative audits, as well as compliance audits of Ministries, Departments and Services of the Public Service and the wider public sector.

Conformity audits related to environmental issues usually involve checking whether the Government's activities comply with environmental legislation, standards and policies, at national and European level.

The Law on the Submission of Data and Information to the Auditor General of the Republic (Law 113 (I) / 2002) provides clear powers to the Auditor General to request information in any form, including electronic form, explanations and information, written or oral. at his discretion they can assist him in carrying out his work.

3.2 Purpose of the audit

The audit was aimed at examining the procedures for issuing an opinion by the Environmental Authority, urban planning permit by the Urban Planning Authority and building permit by the competent Authority, especially regarding the environmental impact assessment, according to the European and national institutional framework, two developments in the Municipality. Savior of the Province of Famagusta, one of which is adjacent and the other is located in a piece that falls within the area of ​​the "Natura 2000" Network.

3.3 Methodology

3.3.1 Control standards

Pursuant to Article 81 (2) of the Law on Financial Responsibility and the Financial Framework Law (Law 20 (I) / 2014), the Auditor General conducts the external audit on the basis of internationally recognized auditing standards that he decides.

As explicitly stated in the Auditing Instructions issued by the Auditor General, the Audit Service's audits are conducted in accordance with International Standards on Auditing (ISAs) issued by the International Federation of Accountants (IFAC) and International Auditing Standards (ISAs). issued by the International Organization of Supreme Audit Institutions (INTOSAI), which is an autonomous, independent, non-politicized Agency, with special advisory status to the Economic and Social Council (ECOSOC) of the United Nations.

The ISSAIs classify audits performed by Supreme Audit Institutions into three categories, financial audits, compliance audits, and performance audits. For these audits there are a number of auditing standards that are common, and a number of auditing standards that are specific to each audit category.

The performance of this audit is mainly governed by the provisions of the following Standards and Instructions.

Figure 1: Standards governing control.

The fundamental model INTOSAI-P1 essentially records the Declaration itself, which was adopted in 1977 by the INTOSAI World Congress in Lima, Peru ("The Lima Declaration"). As recorded in the Standard itself, this document is considered the "Magna Carta" in the exercise of external control by governments, as it laid the foundations of public control. The Declaration sets out the basic control points and the basic principles for the Supreme Audit Institutions that are necessary in order to achieve independent and objective results. The principles established in the Lima Declaration were recognized by the Resolutions of the UN General Assembly no. 66/209 (date 22.12.2011) and 69/228 (date 19.12.2014).

ISSAI 100 sets out the definition of public sector control and provides the basic concepts, elements and principles (both general principles related to control and principles related to the various phases of the control process) that apply to all controls of the public sector.

The ISSAI 400 standard defines compliance testing as an independent assessment of whether a given issue complies with the principles set out in the audit criteria. These audits are intended to assess whether the actions of the audited entity comply with the principles or rules governing it. These principles and rules may relate to compliance with the provisions of the relevant Laws, Regulations or agreements or to the general principles of sound financial management and conduct of public officials.

GUID-5200 provides guidance on the application of INTOSAI Auditing Standards to environmental audits, provides practical assistance in developing methodologies for conducting environmental audits, and suggests the approach for setting audit criteria.

GUID-5201 highlights the possibilities of conducting an environmental-focused audit in the context of a financial audit or compliance audit. In particular with regard to compliance audits, it focuses on examining whether Government activities are carried out in accordance with applicable environmental legislation and policies.

3.3.2 Audit approach

The present audit was based on data and views submitted by the IT, the TPO, the Ministry of Foreign Affairs and the Municipality of Sotiras.

The findings of the audit were forwarded for comments and opinions to the IT, the TPO, the Ministry of the Interior and the Municipality of Sotiras and their views were incorporated, where appropriate, in this Report.

3.4 Control criteria

The following were used as principles and rules for compliance control purposes:

• Directive 92/43 / EEC on the conservation of natural habitats and of wild fauna and flora.

• Directive 2009/147 / EC on the conservation of wild birds (formerly Directive 79/409 / EEC).

• Directive 2011/92 / EU on the assessment of the effects of certain public and private projects on the environment.

Directive 2014/52 / EU amending Directive 2011/92 / EU on the assessment of the effects of certain public and private projects on the environment.

• The Law on Protection and Management of Nature and Wildlife (Law 153 (I) / 2003).

• The Law on Protection and Management of Wild Birds and Prey (Law 152 (I) / 2003).

• The Law on Environmental Impact Assessment by Certain Projects (Law 127 (I) / 2018).

• The Law on Environmental Impact Assessment by Certain Projects (Law 140 (I) / 2005), which was repealed by Law 127 (I) / 2018).

4. Findings and recommendations

4.1 Mixed Tourism Development

The project concerns the implementation of a very large MTA, which consists of a five-storey 5 * hotel unit, with a total area of ​​15.930 sq.m., a capacity of 203 rooms, a complex of 39 four-storey tourist apartments, with a total area of ​​2.070 sq.m. and a tourist complex with 11 luxury homes, with a total area of ​​1.440 sq.m.

The southern part of the development in question is adjacent to an area of ​​the "Natura 2000" Network and specifically to the border of the SPA "Agia Thekla Area - Liopetri" (CY3000009).

The owner of the project is the company JCD (registration date 8.7.2016), in which two closely related persons of the recently resigned Member of Parliament, who resigned from the House of Representatives after the scandal that saw the light of day in relation to the Cyprus Investment Program. The contractor of the project is a company, which, before being transformed into a public one, had this PEP as a shareholder for a long time. The latter is also the Director of the above mentioned companies.

According to the Registrar of Companies, the Social Security Services and the Registry of the Department of Population and Immigration Records, three persons, who served as Directors in the company JCD (owner of the project), third country nationals, were naturalized as Cypriot citizens. Two of them served as Directors from the date of registration of the company on 8.7.2016 and the third on 27.7.2018. The two Directors were naturalized as Cypriot citizens, within the framework of the Cyprus Investment Program, on 14.3.2018 and 9.1.2018, respectively. In addition, three minor children of one Director and one minor child of another, were also naturalized as Cypriot citizens, on 20.6.2019 and 21.6.2019, respectively. The third Director was naturalized on 12.9.2019 and one month after acquiring the Cypriot citizenship, he resigned as Director of the said company, while the other two Directors resigned from this position on 3.7.2020 and 3.1.2020, respectively, ie approximately two years later. Some of the above persons were employed by the Anti-Concealment Unit. We note that no comments are made on the above points, as long as the naturalization process is not the subject of this review, however we mention them for the purposes of transparency and comprehensive information.

4.1.1 Planning Issuance Procedure

The Urban Planning Authority approved, on 20.3.2017, to the developer, the urban planning permit no. AMX / 315/2016, for the conversion of three plots in the Municipality of Sotiras into a plot of land, three public green spaces, public parking spaces and a community equipment space. On 4.4.2017, approved the urban planning permit no. AMX / 314/2016 for construction of MTA, which includes a hotel with a capacity of 203 rooms / 406 beds, a complex of 39 residential apartments (residential apartment building) and 11 residential villas, in the under construction plot approved with the planning permission no. ΑΜΧ / 315/2016. The Municipality of Sotira, as the competent Authority, issued on 24.11.2017 a land division permit / road construction and a building permit, regarding the urban planning permits no. AMX / 315/2016 and AMX / 314/2016, respectively.
The developer submitted, on 25.7.2018, a new urban planning application no. ΑΜΧ / 351/2018 for the granting of urban planning permit, which concerned additional conversions, mainly in relation to the addition of two floors to the approved with the urban planning permit no. AMX / 314/2016 seven-storey hotel (basement, ground floor and five floors) and two floors in the six-storey residential building approved by the same permit. Also, with the same application, he requested the acquisition of one of the required public green spaces, in order to integrate it in the development field. Based on the plans submitted to the TPO, the location of the residential villas was redesigned, from 11 to ten villas and part of a villa was proposed to fall within a designated public green space.

The Urban Planning Authority, in a letter dated 15.10.2018, informed the applicants that it did not approve the further excess in the number of floors / height, considering that it had already exercised its discretion to exceed the number of floors as much as possible, for a community of the scale of a small rural Municipality, in within the already granted urban planning permit no. ΑΜΧ / 314/2016 and considering that out-of-scale development is created, which seriously affects the physiognomy and the comforts of the area. Also, the Urban Planning Authority stated that the acquisition of part of the required public green space is not appropriate either, as this would create conditions for overgrowth and sealing of an even larger area of ​​land. Finally, he stated that, in order to be able to proceed with the study of the application, it was necessary to submit, within a month, modified plans, without the addition of the two floors and without the integration, in the development planning, of the designated public green space, since its acquisition would be acceptable. Taking into account that the applicants did not take action, in order to enable the further study of the application, the Planning Authority issued, on 11.1.2019, a Notification of Refusal to Issue a Planning Permit, to the applicants, with notification to the Municipality of Sotiras, as the competent Authority. for the issuance of a building permit.
Against the mentioned decision of the Urban Planning Authority, the applicants submitted on 21.2.2019 a Hierarchical Appeal, based on article 31 of the Law on Urban Planning and Spatial Planning.

Prior to the decision of the competent Ministerial Committee, for examination of Hierarchical Appeals, based on articles 31 and 32 of the Law on Urban Planning and Spatial Planning and relaxation, based on article 5A of the Law on Beach Protection, the TPO, as the Planning Authority , during an on-site visit on 2.10.2020, found that the development, as it was under construction, was not in accordance with the approved plans of the urban planning permit no. ΑΜΧ / 314/2016, since, in addition to the increase in the number of floors (one additional floor in the tourist part (hotel) and two additional floors in the residential part (residential apartment building)), instead of 11 villas, ten villas were erected with different layout, the one of which was intervening in the designated public green space, required under the urban planning permit no. AMX / 315/2016, while the other additions, mentioned above and which had been rejected, had been implemented to a large extent. The competent Ministerial Committee, with a long delay of more than 18 months, rejected, on 12.10.2020, the mentioned Hierarchical Appeal, judging that the decision of the Planning Authority was correct and in accordance with the provisions of the urban legislation and the Policy Statement. It also decided, as requested by the Urban Planning Authority, to issue an Enforcement Notice pursuant to Article 46 of the Law on Urban Planning and Spatial Planning (Law 90/1972), in relation to the found arbitrary addition of two floors to the development and for any other, not authorized by license, construction / use. The Urban Planning Authority issued, on 21.10.2020, a Enforcement Notice to the applicants, as well as to the interested party, with which it invited them to immediately terminate the works and restore the property and the development under construction as the plans of the urban permits. Against the decision of the Urban Planning Authority to issue a Enforcement Notice, the developer and the interested party submitted, on 9.11.2020, a Hierarchical Appeal, based on article 47 of the Law on Urban Planning and Spatial Planning, to the Minister of Interior, who rejected it. 18.1.2021.

The long delay of the Ministerial Committee in the examination of the first hierarchical appeal, in particular, taking into account both the size and the important environmental aspect of the project, as well as the awareness of the competent Authorities, in relation to the blatant violation of the terms of the planning permit by the developer, creates question marks. We point out that the decision of the Ministerial Committee was taken immediately after the broadcast of the television report, which saw the light of day, in relation to the Cyprus Investment Program and which involved the above Member of Parliament and Director in the owner and contractor company.

In this regard, we mention that the developer submitted to the Urban Planning Authority, on 3.2.2021, a new urban planning application (no. ΑΜΧ / 42/2021), which concerned additions and modifications to the approved development, which included, among others, the addition of the already illegally constructed additional floor and other additions.

Recommendation: Both the Planning Authority and the competent Building Authority, to ensure the restoration of this property and the development under construction, as the plans of the planning permits. Otherwise, the Urban Planning Authority should immediately refer the matter to the Attorney General, in order to take judicial action as soon as possible. Also, the competent Ministerial Committee, for examination of Hierarchical Appeals based on articles 31 and 32 of the Law on Urban Planning and Spatial Planning and relaxations based on article 5A of the Law on Beach Protection, to find ways to make decisions within a reasonable time from the submission their.

The Director of the TPO informed us that he intends, first, to impose an administrative fine and then to refer the matter to the Attorney General of the Republic for judicial measures. He also informed us that the Ministerial Committee, at its meeting on 16.9.2020, decided to postpone the decision and called on the Planning Authority to conduct an on-site visit and capture the current condition of the buildings, as they had been implemented on the spot, indicating any additions / modifications to the development that were performed without obtaining the necessary permissions. He also expressed the view that there was no expediency in the delay in the examination of the Hierarchical Appeal by the Ministerial Committee, which is mainly due to the very large number of hierarchical appeals for which the preparation and submission of relevant Reports to the Commission is pending. which the TPO makes a great effort to regulate, under conditions of severe understaffing.

Our Service still maintains its opinion on the matter.

4.1.2 Environmental Impact Assessment and Proper Assessment / Special Ecological Assessment Study

Vacation settlements, hotel complexes outside residential areas and related infrastructure projects are included in the projects that, according to paragraph 11 (a), of Annex II (Article 9) of Law 140 (I) / 2005 (which was repealed by in Law 127 (I) / 2018), are submitted, in the first stage, to PEEP. In the context of the implementation of the provisions, both of the "SPD Directive" and of L.140 (I) / 2005, the developer commissioned the elaboration of PEEP to a private consulting firm, which was submitted to the IT, as the Environmental Authority, on 16.9.2016. According to PEEP, the estimated cost of the project amounted to € 20 million and the expected start and completion dates were January 2017 and January 2019, respectively.
According to the European Commission document "Management of sites and the Natura 2000 Network - The provisions of Article 6 of the Habitats Directive 92/43 / EEC", published in the Official Journal of the European Union on 25.1.2019, The procedure in Article 6 (3) is triggered not by certainty but by the likelihood of significant effects arising from plans or projects, whether or not they are located within a protected area. This possibility exists if the possibility of significant effects on the site cannot be ruled out and mitigation measures should not be taken into account at this stage. Also, the concept of what is "important" must be interpreted objectively and the significance of the effects must be determined in relation to the specific characteristics and environmental conditions of the protected site to which the project or project relates, taking into account in particular
the conservation objectives and the ecological characteristics of the place.

According to the relevant case law of the Court of Justice of the European Union,
"A full and accurate analysis of the measures which may prevent or reduce any significant effects on the site in question should not be carried out at the pre-screening stage but at the appropriate assessment stage" (Case C-323/17), and monitoring (of the effects) at various stages, nor is it considered sufficient to ensure compliance with the obligations laid down in Article 6 (3) of the Habitats Directive ".

The IT, in its letter, date. 30.11.2016, sent the opinion of the Environmental Authority to the TPO in accordance with article 13 of L.140 (I) / 2005, regarding the construction and operation of the above project, stating that it was based on the PEEP and other studies and data, noting that, within three months from the issuance of the Planning Permit, the applicant should proceed to conclude an agreement with the Ministry of the Interior, to finance specific actions and measures to protect the adjacent area of ​​the "Natura 2000" Network. In its opinion, the Environmental Authority states, inter alia, that, although the development area does not fall within the boundaries of the European Natura 2000 Protected Area, the southern part of the development is adjacent to the Special Protection Zone ( SPA) "Area of ​​Agia Thekla - Liopetri" (CY000009). The area of ​​Agia Thekla, of the Municipality of Sotiras Famagusta, where the proposed MTA is located, falls in Spatial Area I of the Province of Famagusta and is governed by the provisions of the "Rural Policy Statement". The development area of ​​MTA falls in parts into the Tourist Zones T2a and T2e, which are the main Urban Zones of development ".

In particular, the Environmental Authority referred to the fact that, at a distance of about 600 m, the project of the Ayia Napa Marina was to be implemented, which includes multi-purpose developments (recreational uses, commercial uses, residential uses, etc.), the western part of the MTA plots is adjacent to a restaurant and southeast of the development area are located parking lot, cafe restaurant, as well as the organized beach of Agia Thekla. Also, regarding the SPA, the Environmental Authority stated that, "Since the sites of the proposed MTA are adjacent to the Special Protection Zone" Agia Thekla - Liopetri ", it is of primary importance to take good practice measures by the Project Contractor to reduce dust and noise emissions that may affect protected species found in the SPA.

During the operation phase of the project, no significant effects are expected on the protection items hosted in the SPA. However, increased traffic and pedestrian movement and beach use may partially affect the protected area. The implementation of appropriate measures, such as proper labeling and public information, will strengthen its protection. "

We stressed that the procedure followed, both by the Environmental Authority and the Urban Planning Authority, does not seem to be in line with the provisions of the Directive and that non-compliance with the Acquis may lead to sanctions in the Republic of Cyprus.

In addition, we found that the Environmental Authority failed to fulfill its obligation, which stems from the provision of Article 2 (3) of the "SPD Directive", according to which, "In the case of projects for which there is an obligation to conduct assessments of their effects on the environment by this Directive and by Council Directive 92/43 / EEC and / or Directive 2009/147 / EC, where appropriate, Member States shall ensure appropriate coordinated and / or joint procedures for the implementation of requirements of that Union legislation ".

As it turns out, the Environmental Authority acknowledged, during the drafting of its opinion, the, according to its own confession, the possibility of influence of this SPA, both by the MTA itself, and by its cumulative effects with other projects in the region. However, it ignored the need to develop a DE, despite the size and proximity of the project to the "Natura 2000" area, pursuant to Article 6 (3) of the "Habitats Directive", in relation to the project. Most surprising is the fact that, according to both the RIP and the relevant e-mail correspondence between the IT and the developer, the private consulting firm that drafted the RDP, in its environmental impact assessment, approached the IT asking whether , apart from the PEEP, any other study was required to be carried out, which replied that only the elaboration of the PEEP was required.

We pointed out that, during the meeting of the SPC Committee ("Committee") on 4.10.2016, with the aim of examining the RDP, the representative of the Cyprus Technical Technical Chamber (ETEK), as a member of the Committee, expressed concern regarding the expected cumulative effects of the project in the area, since the Marina of Ayia Napa was to be created in the same area. He therefore suggested that additional information be obtained, both on the cumulative effects and on other issues, to which other members of the Commission agreed. At the next meeting of the Committee, 1.11.2016, the additional data received were examined and, by the nine permanent members of the Committee, the three were positive for the project, the two were negative, while three members expressed concerns and / or reservations. The Chair of the Committee stated that the views and additional information would be evaluated and that the Environmental Authority would issue an opinion.

Despite the above, the Environmental Authority, in its opinion on 29.11.2016, recommended the licensing of the proposed project, provided that it is included in the planning permission of specific conditions, without, however, explaining the way in which it handled the reservations of the five members of the Commission, who either took a negative view or expressed concerns. We note that, in accordance with the provisions of Article 26 (1) of the General Principles of Administrative Law (158 (I) / 1999), administrative acts, which are issued after the exercise of discretion, must be sufficient and appropriate. justified, in particular in the case of acts which, inter alia, are contrary to their content to a prior opinion, proposal, suggestion or report of a competent body or to the details of the administrative file.

As it turns out, the Environmental Authority did not properly implement the fundamental article 3 of the "SPD Directive", as the conclusion stated in the opinion is not sufficiently substantiated, ie that no significant effects are expected from the operation of the project, in the protection species hosted in SPA, despite the reservations and concerns of the majority of the Commission.

We emphasized once again that, in addition to the problems and pressures that may arise in the environment, failure to comply with the Acquis may bring sanctions to the Republic of Cyprus. In this regard we mention that, according to a warning letter-Infringement no. 2019/2303 of the EU Secretariat General, date 27.11.2019, to the Minister of Foreign Affairs, the Commission, inter alia, expressed the view that “… The Republic of Cyprus, in general and continuously, does not ensure that its authorities submit plans or projects not directly related or necessary for its management which, however, may have a significant impact on that site, either on its own or in conjunction with other projects or projects, on the effects of the site, taking into account the site conservation objectives and, based on the conclusions of the site assessment. agree on plans or projects only after ensuring that they do not prejudice the integrity of the site in question… ", in breach of Article 6 (3), in conjunction with Article 6 (7) of the Directive of Habitats ".
We drew the attention of both the IT and the TPO, for the overcrowded area, since, according to data of the former, a significant number of positive opinions have already been given for a lot of developments.

Recommendation: Projects falling within the scope of application of Article 6 (3) of the Habitats Directive should be duly assessed, in accordance with the provisions of the said Directive and the Acquis or the Environmental Authority to justify and record the reasons on which it was based any conclusion to the contrary. Also, both the Environmental and the Urban Planning Authority, in the case of projects for which there is an obligation at the same time to carry out environmental impact assessments from the "SPD Directive" and the "Habitats Directive" and / or from the "Birds Protection Directive" Where appropriate, ensure appropriate coordinated and / or joint procedures for meeting the requirements of that Community legislation.

The Director of IT informed us that, after evaluation, both of the RDP and the additional data submitted, it was not deemed necessary to prepare an EP. He also informed us that the impacts from the construction and operation of the project on the SPA were assessed and evaluated in the context of the RDP and, in consultation with the SPA, as the competent authority for the implementation of protection, control, supervision and management measures of the SPA, was judged that the procedure can NOT be carried out satisfactorily in this context.

The Director of the SPA informed us that, during the examination of the SPC, additional information was requested regarding specific issues related to the impact of the SPA and that the Management Plan of the SPA was taken into account, the fact that this project falls outside the area "Natura 2000 ", But also the fact that, for the specific SPA, due to the construction of the Ayia Napa Marina in the area of ​​Agia Thekla, compensatory measures had been taken, with the inclusion of a specific adjacent area in the" Natura 2000 "Network. He also informed us that, judging by the ex-post, they should probably have taken a different approach, taking into account all the data and the cumulative pressures that exist in the specific area and asking for DE, regardless of the handling done in relation to the Ayia Napa Marina in Agia Thekla.

By the way, in the adjacent area, mentioned above that it joined the Network, as compensation, both our Service and the IT have identified serious illegal interventions, which the IT has so far failed to reverse and restore.

4.1.3 Agreement between Thera and Fauna Service and the developer

As mentioned above, the terms of the Environmental Authority's opinion included the obligation of the developer to, within three months from the issuance of the Planning Permit, conclude an agreement with the Ministry of Environment, to finance specific actions and measures to protect the neighboring area. Natura 2000 Network.

We found that, despite the fact that the Planning Authority granted, on 20.3.2017 and 4.4.2017, the relevant planning permits no. AMX / 315/2016 and AMX / 314/2016, respectively, the agreement between the Ministry of Foreign Affairs and the applicant was concluded on 30.3.2018, ie with a delay of nine months, after being signed one year after the issuance of the planning permits, instead of within three months.

Recommendation: All the competent Departments (in this case the Ministry of the Interior) to ensure the observance of the obligations of the project owners in terms of the planning permission that concerns them, within the contractual schedules.

The Head of the Ministry of Foreign Affairs informed us that the delay in concluding the agreement was due to the necessary approvals required for the final documents, both by the Ministry of Foreign Affairs and the company.

4.2 Construction of two houses

The project concerns the construction of two houses and is located in a plot, part of which falls within the same protected area of ​​the Network "Natura 2000", SPA "Liopetri - Agia Thekla". As the Director of TPO informed us, the houses are located in the northern part of the plot and no intervention or construction is proposed within the specified SPA that coincides with the published protection zone of the beach.

The owner of the project is the company SA in which two close relatives of a recently resigned Member of Parliament, who resigned from the House of Representatives after the scandal that came to light, in relation to the Cyprus Investment Program, have an interest. And in this project, the contractor is a company which, before being transformed into a public one, had a shareholder in the said RIP for a long time. The latter is also a Director in the aforementioned companies.

Despite the fact that the project in question does not fall within the scope of application of Law 127 (I) / 2018, so there was no obligation for SPD, from its construction and operation, taking into account that it is partially located in an area within the Network "Natura 2000", the project clearly falls within the scope of the "Habitats Directive", which requires, in such cases, the implementation of the impact on the environment.

4.2.1 Urban planning permit

4.2.1.1 Urban planning permit no. ΑΜΧ / 332/2019

On 2.8.2019, the developer submitted an application to the Urban Planning Authority for a planning permit, for the development of two houses in the Municipality of Sotira. The Planning Authority requested the opinions of the competent Building Authority, ie the Municipality of Sotiras, for the application under reference no. AMX / 332/2019, as well as information on whether, based on the plan for the renovation / shaping of the Sotiras / Famagusta coastal front, the requested plot is affected by a coastal pedestrian street. The Municipality of Sotiras, in its letter on 8.8.2019, replied to the TPO that, after taking into account that, regarding the planning of the renovation / shaping of the coastal front, an application had not yet been submitted to obtain a planning permit for the project, so that to be examined and approved by the TPO, did not object to the issuance of the town planning permit for the two houses, in accordance with the conditions that would be set by both the TPO and the other Services involved.

In a relevant letter that followed, date. 10.9.2019, the Municipality of Sotira announced the design of the renovation / shaping of the coastal front by the project designer. Special reference to the work of redevelopment / shaping of the coastal front is made in paragraph 4.3.4 below.

The Urban Planning Authority issued on 18.10.2019 the urban planning permit no. ΑΜΧ / 332/2019, for the construction of only one of the two houses that the application concerned, without, however, as we found out, stating in the Notification for the Issuance of a Planning Permit, the reason for not approving the second house. We also found that, according to the Urban Planning Application Study Form and Decision Minutes of the Planning Authority, date. 16.10.2019, which was handwritten and in many places was illegible, it is reported (paragraph 2 (i), plot characteristics) that it is affected by "Beach protection zone" and "Special protection zone" "Natura 2000".

The same day on which the planning permission was issued with no. ΑΜΧ / 332/2019, an agreement was concluded between the developer and the TPO, based on article 43 of the Law on Urban Planning and Surveying (Law 90/1972).

The terms of the planning permission include, inter alia, the following:

a. No building should be erected within the Beach Protection Zone (condition 288).

b. Specific part of the real estate under development to be granted and registered as a public coastal pedestrian - bicycle path (condition 501).

c. During the issuance of a building permit by the Municipality of Sotira, to pay to the Special Redemption Fund of the Municipality of Sotira the amount of € 24.255, as compensation for the construction of the public coastal pedestrian - bicycle path, as provided in the agreement between the applicant and the Planning Authority (condition 503).

d. Before issuing a building permit, to seek the opinions of the Director of IT, the Director of the Department of Fisheries and Marine Research and the Head of the Ministry of Foreign Affairs (term 506).

4.2.1.2 Urban planning permit no. ΑΜΧ / 332/2019 / Α

On 17.1.2020, the developer submitted a new application to the Urban Planning Authority for a planning permit, for the development of the same house, which essentially concerned the approval of modified plans, in relation to the planning permit no. ΑΜΧ / 332/2019.

The Urban Planning Authority issued on 26.6.2020 the new urban planning permit with no. ΑΜΧ / 332/2019 / Α. We found that in this case as well, the Urban Planning Authority prepared the Manuscript of the Urban Planning Application Study Form and Decision Minutes of the Urban Planning Authority, dated. 18.6.2020, which again was in many places illegible and which also recorded that the mentioned piece is affected by "Beach protection zone" and "Special protection zone" "Natura 2000".

The mentioned urban planning permit with no. ΑΜΧ / 332/2019 / Α, was granted, after conclusion, on 12.6.2020, an agreement based on article 43 of the Law on Urban Planning and Spatial Planning (L.90 / 1972) and included, among others, the following conditions:

a. The approved plans replace the corresponding ones approved with the urban planning permit no. ΑΜΧ / 332/2019, date 18.10.2019 (term 508).

b. To implement all the terms of the relevant agreement, date 12.6.2020, concluded by the Planning Authority with the applicant, based on article 43 of Law 90/1972 (term 509).

c. The new urban planning permit is an integral part of the urban planning permit no. ΑΜΧ / 332/2019 (term 511).

d. The other terms and plans of the urban planning permit no. ΑΜΧ / 332/2019 are still valid to the extent that they do not differ from the terms and plans of the new planning permission (condition 512).

Recommendation: The Urban Planning Authority, during the process of issuing a planning permission, to adequately document its decisions in the relevant files. Also, the Urban Planning Authority to ensure an appropriate way of preparing the Urban Planning Application Study Form and Decision Minutes of the Urban Planning Authority, so that they are legible.

4.2.1.3 Urban planning permit no. ΑΜΧ / 462/2019

On 19.11.2019, the developer submitted a third application to the Planning Authority for planning permission, for the addition of a house in approved development, which essentially concerned the development of the second house.

The Urban Planning Authority issued on 26.6.2020 the urban planning permit no. ΑΜΧ / 462/2019, while on 12.6.2020 it concluded an agreement with the developer, based on article 43 of the Law on Urban Planning and Spatial Planning (Law 90/1972).

The Town Planning Permit included, inter alia, the following conditions:

a. When issuing a building permit by the Municipality of Sotira, to be paid, if it has not already been paid to the Special Acquisition Fund of the Municipality of Sotira, the amount of € 24.255, as compensation for the construction of the public coastal pedestrian - bicycle path, as included in the agreement on 18.10.2019 (AMX / 332/2019), between the applicant and the Urban Planning Authority (term 503).

b. Prior to the issuance of a building permit, the opinions of the Director of IT, the Director of the Department of Fisheries and Marine Research and the Head of the Ministry of Foreign Affairs (term 506) should be sought.

c. The application for a building permit for development should be submitted directly to the competent Building Authority, so that it can issue the building permit until 29.6.2021, the date of completion of the Plan for the provision of urban incentives for the purpose of recovery of development activity in Cyprus (Ministerial Decision Council, dated 18.12.2018) and also the said development to be implemented in a period not exceeding three years from the date of issuance of the building permit (condition 511).

d. The urban planning permit is granted based on the decision of the Council of Ministers with No. 76.172, date 29.5.2013 (and its subsequent amendments) for the Plan for the provision of urban incentives for the purpose of recovery of development activity in Cyprus (increase by 20% of the permitted building factor) (note (b)).
The decisions of the Urban Planning Authority, in relation to the issuance of urban planning permits with no. ΑΜΧ / 332/2019, ΑΜΧ / 332/2019 / Α and ΑΜΧ / 462/2019, were not sufficiently substantiated and questions arise in relation to the reasons for non-approval of the second residence during the examination of the first application for urban planning permit (ΑΜΧ / 332 / 2019) and the subsequent amendment of AMX / 332/2019 with the urban planning permit AMX / 332 / 2019A.

Recommendation: The Planning Authority, during the process of issuing a planning permit, to document its decisions in the relevant files. Also, the Urban Planning Authority to ensure an appropriate way of preparing the Urban Planning Application Study Form and Decision Minutes of the Urban Planning Authority, so that they are legible.

The Planning Authority informed us that, in the context of a study of the application AMX / 332/2019, it found that, according to the initial plans that had been submitted, the permitted development factors were exceeded, in accordance with the provisions of the current development plan in the area where the plot is located. and, therefore, after consultation with the project designer, the application was amended (AMX / 332 / 2019A), so that it concerns only the construction of a house, so that no excesses occur. He also informed us that, subsequently, the applicants submitted a new application, with revised plans, for the granting of a permit for the second housing unit, which was granted on 26.6.2020 (AMX / 462/2019).

Our Service still maintains its views on the matter, since the mentioned reason for approval of only one house during the issuance of the urban planning permit no. ΑΜΧ / 332/2019 and the consultation with the project designer are not documented by the documents of the relevant files.

Our findings, in relation to the environmental aspect of the issue, are reported in section 4.2.2 below.

4.2.2 Adequate Assessment / Special Ecological Assessment Study

We found that, although the project is located within a plot, part of which falls within the protected area of ​​the Network "Natura 2000" as SPA "Liopetri-Agia Thekla", nevertheless the Planning Authority approved the mentioned planning permits, without setting the issue before the Environmental Authority, in order to examine the need for a DE. Instead, it set a condition for retrospective comments from both the IT and the Department of Fisheries and Marine Research and the Ministry of the Interior. The above was also pointed out by the IT, in a letter dated 29.10.2020, to the Municipality of Sotiras, which was also notified to the TPO.

The Director of the TPO expressed the view that, although the Urban Planning Authority did not seek the views of the IT and the SOP in the context of the evaluation of the urban planning permit, given that the development is located in a plot, part of which falls within the protected area of ​​the Network "Natura 2000 ”of the SPA“ Liopetri – Agia Thekla ”, however it is judged that its action to set the relevant condition no. (506), as well as the relevant note / reservation in the Notification for the Issuance of a Planning Permit [Annex 9 (Annex 1)], essentially ensured that the views of these Departments would be secured before the issuance of the building permit, ie before the implementation of the development.

We found that both the action of the Planning Authority to issue the above planning permits and the above placement of the TPO, blatantly violate the institutional framework, which in no case gives the Planning Authority the right to approve, before the opinion of the Environmental Authority, a project which is subject to an urban planning permit and which is not directly related or necessary for the management of an area, which falls within an area of ​​the "Natura 2000" Network, but may affect it, by itself or in conjunction with another project.

From the above, it appears that the action of the Planning Authority to issue the planning permits with no. ΑΜΧ / 332/2019 and ΑΜΧ / 332/2019 / Α, on 18.10.2019 and 26.6.2020, respectively, were contrary to the provisions of the institutional framework.

Also, the issuance of a planning permit, provided that the views of the Departments involved, in relation to the environmental assessment, would be secured before the issuance of the building permit, in essence restricts the ability of the Environmental Authority to reject, if necessary, the such request, if it creates rights for the applicant.

It is also important that any subsequent refusal to grant a building permit, with a reason based on the views of the IT and / or the Department of Fisheries and Marine Research and / or the Head of the Ministry of Foreign Affairs, may be considered illegal, as it is legally established that:

• The town planning permit and the building permit are two related acts, regardless of the fact that they are issued by different administrative bodies at different time intervals. However, they retain their independence as separate administrative acts and have separate criteria for the issuance of each of them, either on the basis of the Law on Urban Planning and Spatial Planning of 1972, or on the basis of the Law on Roads and Buildings (Chapter 96).

• The urban planning permit is the foundation for a proposed development and that given the conditions set out in it, the building permit may impose conditions, not to replace or oppose those of the urban development permit, but only intended for the needs of the specific development , which has already satisfied the broader urban plans. In other words, the examination of an application for a building permit is done in the light of the previous urban planning permit.

• Under the data of the urban planning permit, the application for a building permit is granted, otherwise, provided that the individual criteria set by the Law on Roads and Buildings (Chapter 96) and the relevant Regulations are met.

Recommendation: The Urban Planning Authority to ensure faithful application of both article 6 (3) of the "Habitats Directive" and article 16 (3) and (4) of Law 153 (I) / 2003, in order to approve urban planning a project which may affect the Natura 2000 site itself or in conjunction with other projects or projects, provided that the opinion of the environmental authority confirms that the project in question does not prejudice the integrity of the site and does not cause deterioration. of her character.

4.2.3 Illegal start of work and interventions in the SPA

IT inspectors, during their on-site visit on 15.6.2020, which took place in order to investigate a complaint regarding the discharge of drainage fluids from the above development into the sea, found that, due to the excavations of the project, drainage water ended up in the sea , in violation of the Law on the Control of Water Pollution (L.106 (I) / 2002). Subsequently, the IT, by letter, dated 3.8.2020, to the developer, who notified both the TPO and the Ministry of the Interior, requested that the work be terminated immediately, until a study on the management of drainage water is submitted to the IT. He also pointed out that, at first sight, it seemed that there were interventions within the SPA of the "Natura" Network "Agia Thekla-Liopetri", which had to be terminated immediately, since, within the boundaries of the protected areas of the Network, no intervention is allowed, without the prior permission of the competent authority.

In a new on-site visit of the IT, which took place on 23.9.2020, in the context of a consultation for the issuance of a building permit, it was found that the construction of basement and ground floor of the houses had been completed and the construction of the 1st floor was in progress. building permit, nor was the relevant condition no. 506 of the urban planning permit (no. ΑΜΧ / 332/2019).

At the same time, the Municipality of Sotiras launched the process for issuing a building permit and with its letter, date. 7.7.2020, forwarded to the IT the application for building permit and the urban planning permit no. ΑΜΧ / 332/2019 and asked for opinions, in relation to the issuance of the building permit, failing, however, to mention that the developer had already started the construction work illegally, a fact that he should have known.

Although the IT had identified the start of work and possible intervention within the SPA from June 2020, it responded to the Municipality of Sotiras after four months, on 29.10.2020, stating that it did not advocate the issuance of a building permit and requested that they be implemented its provisions on the Regulation of Roads and Buildings Law and on the Municipalities Law, in relation to the construction of illegal installations without the required permits. The Ministry of the Interior, by letter, dated 30.10.2020, informed the Municipality of Sotiras that it agreed with the content of the letter under reference, the date. 29.10.2020.

Then, the Municipality of Sotiras, with its letter, dated 30.10.2020, to the developer, informed him, among other things, that, at an on-site inspection on the same day, he found the start of work (construction of basement and ground floor columns) and called on him to immediately stop any work and to comply with all IT requirements. He also warned him that, in case he proceeds with the execution of any works, then the Municipality will proceed against him with all the legal measures provided in the relevant legislation, in relation to the start of works without the prior securing of a building permit.

Also, the IT, with its new letter, date. 30.11.2020, to the Municipality of Sotiras, regarding the evaluation of new developments by the IT, in the context of the application for a building permit, stressed that the assessment of the environmental impact of the construction and operation of a development should be done in advance, in in the context of the application for a planning permit, so that it is possible to properly monitor the environmental impact and to propose the appropriate mitigation measures, before the issuance of a planning permit and consequently before the start of any construction work. He also stated that the consultation with the Director of IT, in the context of the application for a building permit, does not provide the possibility of a comprehensive assessment of any impact on the environment from the construction of the proposed project and therefore, in several cases, the views of IT are unnecessary, therefore it is necessary as any consultation is carried out in the context of the application for urban planning permit.

We were surprised to find that, despite the above, the IT, in its letter, dated 9.12.2020, to the Municipality of Sotira, states that, in case the Municipality proceeded to the issuance of a building permit, the IT, in consultation with the Ministry of Agriculture, considers that, in an effort to reduce and manage the environmental impact already brought by the Due to developments, the developer would have to submit specific documents to the relevant Departments. The letter also states that the conditions and the implementation of the development should ensure that the species of the SPA area, as well as other relevant important environmental aspects of the area, are not affected. As it turns out, the IT changed its position and instead of refusing to examine the application afterwards, as it initially informed the Municipality, it requests data for ex-post evaluation, despite its clear indication that the project has already had an environmental impact.

The Municipality of Sotiras, with its letter, date 28.12.2020, forwarded to the IT data / report of the developer, to satisfy the reported IT requirements.

In relation to the above, the following emerged:

a. Despite the seriousness of the findings of the IT Inspectors, which emerged from their on-site visit on 12.6.2020, the IT informed the developer on 3.8.2020, ie with a delay of 52 days from the on-site inspection. Also, he does not seem to have followed the development of the issue with the expected diligence.

Recommendation: The Director of IT, when he finds violations, to take immediate action to correct them. In this case, to assess, in cooperation with the Ministry of the Interior and the Attorney General of the Republic, whether there are grounds for judicial action against the developer and / or the contractor and / or the supervising engineer, for criminal offenses, in the context of implementation of Law 22 (I) / 2012.

The Director of IT informed us that the competent Authority for the SPA is the Ministry of Public Works, to which he had notified his mentioned letter, dated 3.8.2020.

b. Both the TPO, as the Urban Planning Authority, and the Ministry of the Interior, as the competent Authority for the SPA, to whom the TP had notified the letter in question, dated. 3.8.2020, did not take timely measures to remedy the violations / illegalities. Specifically, the Director of the TPO informed us that he paid an on-site visit and informed the competent Construction Authority, after being informed about the start of work with the subsequent letter of the TP, day. 29.10.202, to the Municipality of Sotira. Also, the Ministry of Environment, until January 2021, had not yet taken action to ensure compliance with the provisions of Article 6 (3) of the "Habitats Directive", in order to ensure, as a competent authority, the protection and integrity of the SPA.

Recommendation: The Director of the TPO and the Head of the Ministry of Environment and Physical Planning should take timely action to remedy the violations on issues related to their competence, especially when they concern the protection and integrity of areas of the "Natura 2000" Network.

The Head of the Ministry of Foreign Affairs informed us that he was going to suggest the examination of the issue by the Ad-hoc Committee, which is examining projects that may affect areas of the "Natura 2000" Network.

c. The fact that the Municipality of Sotiras failed to report to the IT that the developer had already started construction work, in violation of his provisions on the Regulation of Roads and Buildings Law (Chapter 96), raises serious questions.

Recommendation: The Municipality of Sotira should not initiate a procedure for issuing a building permit, when the planning permit is issued in violation of the legislation that provides for the environmental evaluation of the project. Also, in cases where illegal construction work is carried out, to take immediate action to restore legality.

d. We noticed that both the delayed response of the IT on 29.10.2020, to the Municipality of Sotiras, and the last one to the developer on 30.10.2020, followed the publication of the television report, in relation to the Cyprus Investment Program and which involved the resigned Member of Parliament and Director, both the owner and the contractor.

The Director of IT informed us that the possible delay of his Department in handling the issue is not related to the scandal that saw the light of day, in relation to the Cyprus Investment Program and that the IT has limited resources and tries, in every In this case, to deal promptly and effectively with problems that it either identifies itself or following specific complaints.

e. We note the intention of both the IT and the Municipality of Sotira, to consent, a posteriori, to the implementation of the allegedly illegal development, but also to their obvious tolerance for such illegalities, despite the relevant remarks of the European Commission and the relevant case law of the Court of Justice of the European Union, which states that an ex-post assessment of the effects on the environment is not permissible. We reiterated that the lack of compliance with the Acquis, in addition to not ensuring adequate protection of the environment, may lead to sanctions in the Republic of Cyprus. Also, the non-elaboration of the DE does not mean that the competent Authorities did not take appropriate and coordinated actions, in order to ensure the protection and integrity of the specific area of ​​the "Natura 2000" Network.

Recommendation: The environmental impact assessment must be carried out in a timely manner and definitely before the issuance of an urban planning permit, in accordance with the provisions of the "Habitats Directive" and Law 153 (1) / 2003. Relevant is the opinion of the Legal Service, to the Department of Environment, date. 23.9.2011, which states that, the assessment of the impact on the environment should be done fully and in a timely manner, ie before the issuance of the urban planning permit and points out that, according to the provisions of the Planning and Spatial Planning Laws 1972 to 2011, Relevant permits must be obtained before the start of projects, emphasizing that such permits have no retroactive effect and, therefore, can not provide ex post legitimation of any activity.

The Director of IT informed us that the purpose of the forthcoming presentation and discussion of this project in the ad-hoc Committee is not the ex-post IE and impact assessment, pursuant to article 16 of Law 153 (I) / 2003, in order to licensing procedures, but the application of Article 6 (2) of the Habitats Directive, under which in Natura 2000 sites, there is an obligation to take appropriate measures to avoid degradation of natural habitats and habitats species, as well as disturbances affecting species, where such disturbances could have a significant effect on the objectives of the Directive. He also informed us that, in order to achieve this, mitigation measures can be taken through the ex-post impact assessment, which will have the sole aim of taking appropriate measures to rehabilitate the area and in no way aim at licensing projects. . As he told us, the purpose of the discussion in the ad hoc Committee is to present the extent of the work already done for the project and to evaluate / identify the potential impacts and how they can be mitigated or even remedied, depending on the needs of the species. definition of the SPA.

4.2.4 Coastal front of the Municipality of Sotira

4.2.4.1 Illegal installations and activities

According to article 3 (2) of the Law on Regulation of Roads and Buildings (KEF.96), the competent Authority, within any area of ​​the Municipality, is the Municipal Council of the Municipality.

According to IT data, since 2013 the Department has identified illegal facilities and activities within the specific area of ​​the "Natura 2000" Network and the Beach Protection Zone, carried out by the Municipality of Sotiras, which, according to the IT, until today , has not removed the illegalities.

In this regard we mention that, according to the Warning Letter-Infringement no. 2019/2303 of the EU Secretariat General, date 27.11.2019, to the Minister of Foreign Affairs, the Commission, on the basis of complaints that it continued to receive, which pointed out the continued incorrect application of Article 6 (3) of the "Habitats Directive", decided to initiate the Pilot 2015 case / 7882, which concerned the absence or inadequacy of the DE that had been carried out for projects, including those executed by the Municipality of Sotiras on the beach, in order to facilitate the construction of a Marina, in the said SPA (Agia Thekla CY3000009 ). As mentioned, no works were carried out for the projects on the beach, and the Marina was approved, as a separate project, based on compelling reasons of overriding public interest.
As it turns out, the competent Authority itself, ie the Municipality of Sotiras, for a number of years, more than seven, violates the "Habitats Directive", the "Bird Protection Directive", the "SPD Directive", as well as the corresponding national legislation (L.153 (I) / 2003, L.152 (I) / 2003 and L.127 (I) / 2018), as a result of which it does not safeguard or even damage the integrity of the SPA in the area.

Recommendation: The Ministry of Interior, as supervising the legality of the actions of the Local Authorities, to examine the heaps of illegalities of the Municipal Council Sotira, in order on the one hand to punish the violators and, on the other hand, to restore legality in the area.

4.2.4.2 Reconstruction of the coastal front of the Municipality of Sotira

The IT, in its letter, date. 31.10.2018, to the Municipality of Sotiras, on the subject of the Plan for the regeneration / shaping of the coastal front Sotiras, pointed out that the then relevant proposal of the Municipality, included large and numerous projects both in the marine section and on the coastal area of ​​the Network "Natura 2000".

Based on the above data and based on a preliminary assessment / pre-audit of the possible effects that the proposed projects would have on the SPA, according to article 16 of Law 153 (I) / 2003, the IT considered that these projects would most likely violate the integrity of the area and would cause a significant alteration of its character and it would probably not be possible to license them. The IT suggested the redesign of the projects both in terms of location and their size and type, taking into account the status, naturalness and conservation objectives of the SPA.

In relation to the above, the Municipality of Sotiras (developer), on 4.11.2020, ie two years later, submitted to the IT (instead of the Urban Planning Authority) an Environmental Impact Assessment Study (MEEP), in the framework of the implementation of the Directive EEP "and L.127 (I) / 2018 and Special Ecological Assessment / DE, in the context of the implementation of the" Habitats Directive "and L.153 (I) / 2003. The IT, in its letter, date. 27.11.2020, to the TPO, observed, among other things, that the MEEP should, according to Law 127 (I) / 2018, be submitted by the Planning Authority and not by the developer and asked to be informed if the project is in line with the provisions of the Policy Statement / new Local Plan of Free Famagusta. The IT also noted that the planning of the Municipality, submitted on 4.11.2020, did not contain any modification and no redesign, nor was there any attempt by the Municipality, with the competent Departments, to differentiate the projects, despite the views expressed by the Departments involved. Based on the above, the IT concluded that it does not consider that it can proceed with the evaluation of the above application.

Based on the above, we found that the Municipality of Sotiras promoted the Planning for the renovation / shaping of the coastal front, contrary to previous suggestions of the competent Departments, thus causing unnecessary bureaucracy and administrative costs.

We point out that, with a letter from the IT, date. 24.10.2017, to the Municipality of Sotiras, in relation to a press release issued by the Municipality on 7.10.2017, which was followed by a meeting held on 6.10.2017, during which the Municipality and the researchers had presented their proposal for the most stated that the Government Departments expressed positive views on the proposals, noting that this is not the case for IT.

Recommendation: The Municipality of Sotiras to comply with the instructions of the competent Departments. Also, the Ministry of Interior to investigate the actions of the Municipality, regarding the planning of the project Reconstruction / shaping of the coastal front Sotiras, in order to assign responsibilities.

4.2.4.3 Urban planning permit no. ΑΜΧ / 332/2019 – Price for the construction of a public coastal pedestrian-bicycle path

As mentioned above, the projects promoted by the Municipality of Sotira for the renovation of the coastal front, include a pedestrian-bicycle path, at the height of the plot where the construction of two houses is being erected.

According to the condition (503) of the urban planning permit no. AMX / 332/2019, during the issuance of the building permit, by the Municipality of Sotiras, the amount of € 24.255 must be paid to the Special Redemption Fund of the Municipality, as consideration for the construction of the public coastal pedestrian-bicycle path, as received in the agreement, date 18.10.2019, concluded between the applicant and the Urban Planning Authority, based on article 43 of Law 90/1972, which is an integral part of the urban planning permit. The above agreement states that the Urban Planning Authority has found that the acquisition of the obligation to build the coastal pedestrian-bicycle path, helps to ensure its construction, based on integrated and unified design, which will result in the acceleration of the relevant procedures, the resource savings and the most complete aesthetics of this project, parameters that are considered essential to ensure the comfort of the public.

The developer submitted, on 17.7.2020, through his lawyers, to the TPO, an objection in relation to the proposed design of the coastal pedestrian street in Sotira, arguing that the bridge with an elevated pedestrian street will prevent the unobstructed view to the sea and that the vehicles will cause nuisance.

As it turns out, during the conclusion of the mentioned agreement, between the developer and the Urban Planning Authority, the latter did not set clear conditions, with the result that the former objected to the planning of the local project. We also noticed that the TPO concluded, with the applicant, the mentioned agreement, with a condition that the latter pays the foreseen amount to the competent building Authority, when issuing the building permit, ignoring that the planning process for its reconstruction / shaping coastal front was questionable.

Recommendation: The Director of the TPO, when concluding agreements, in the context of issuing an urban planning permit, to ensure the clarity and accuracy of the contractual terms, so that on the one hand the State contracts with the citizens on clear and precise terms and, on the other hand, avoids any bureaucracy and consequently the delay required to deal with such objections. Also, the Director of the TPO to avoid the summary of conditions for payment of amounts by the applicants, for projects of dubious course.

4.3 Possible commission of disciplinary offenses

Due to the fact that our Service found, over time, as in the case of the project mentioned in par. 4.2, the failure of the Urban Planning Authority to submit to the Environmental Authority plans and / or projects that, based on the national and European institutional subject to ex ante assessment of their impact on the environment, raised the matter before the Minister of the Interior, as the competent authority, for disciplinary investigation.

4.4 Possible responsibilities of supervising engineer and contractor

According to Regulation 61 (i) (7) (1) of the Roads and Construction Regulations of 1954, the supervising engineer has the duty and responsibility to supervise the execution of the project for which he was appointed and to ensure the correct implementation of the study, the observance of the provisions of the relevant permit and the correct application of all the construction elements resulting from the study of the project. According to Regulation 61I (1), the contractor of the project is obliged to perform the project in compliance with the provisions and conditions of the relevant permit and the approved study, as well as the instructions of the supervising engineer. Also, according to article 9A (3) (a) of the Law on the Regulation of Roads and Buildings (Chapter 96), the supervising engineer, who has been properly appointed and undertakes the supervision of the project, must not cooperate or tolerate the commencement of the execution or implementation of the supervised project, before it is confirmed for the existence of the relevant permit by the competent Authority.

Regulation 3 of the Ethics of the Members of the Scientific and Technical Chamber of Cyprus Regulations (KDP 255/2012), provides that the members of ETEK must, among other things, not show disgraceful, fraudulent or incompatible conduct in the field of engineering, not to submit the principles of science and their professional order to their personal interest or the interests of third parties, to comply with the legislation in force in relation to the exercise of their profession and to exercise their professional duties with full responsibility towards the their principals, but also towards society as a whole.

Recommendation: Based on the above, the Municipality should file a complaint against the supervising engineer of the projects at ETEK, as well as the contractor of these projects at the Council for Registration and Control of Construction and Technical Contractors.

5. General conclusions

a. The Urban Planning Authority continues to approve urban planning applications for certain plans and projects that, while they should, according to the legislation, undergo an environmental assessment before its decision, either not forward them at all to the Environmental Authority, or forward them later. By doing so, the Planning Authority violates both the European and the national institutional framework, as this does not give the Planning Authority the right to approve, prior to the opinion of the Environmental Authority, a project that is subject to a planning permit and which is not directly connected or necessary for the management of an area which falls within the Natura 2000 Network, but may affect it, by itself or in conjunction with another project.

b. The Environmental Authority does not guarantee that projects falling within the scope of Article 6 (3) of the Habitats Directive and which may significantly affect a Natura 2000 Network area, as such or in conjunction with other projects, are assessed. due to their impact on the site, taking into account conservation objectives.

c. The Environmental Authority does not properly apply Article 3 of the "SPD" Directive, according to which, in the environmental impact assessment, the direct and indirect effects of a project are properly identified, described and evaluated on a case-by-case basis. of her positive opinion, does not justify and record the reasons on which her conclusion is based. The above is also contrary to the provisions of article 26 (1) of the General Principles of Administrative Law (158 (I) / 1999), according to which, administrative acts, which are issued after the exercise of discretion , must be adequately and duly substantiated, in particular in the case of acts which, inter alia, are contrary to their content, with the prior opinion, proposal, suggestion or report of a competent body or with the details of the administrative file.

d. Failure to comply with the acquis communautaire may result in sanctions in the Republic of Cyprus. According to a Warning Letter – Violation no. 2019/2303 of the EU, date 27.11.2019, the Republic of Cyprus, in general and continuously, does not ensure that its authorities submit plans or projects not directly related or necessary for the management of the site, but which may have a significant impact on the site in question, or per se or in combination with other plans or projects, in the context of their effects on the site.

e. The Urban Planning Authority and the competent Building Authority, although they find serious violations of the legislation in projects under construction, do not take timely and appropriate actions to ensure the restoration of the constructions under construction, such as the plans of the planning permits or the restoration of the properties in their original condition, as appropriate.

f. The Municipality of Sotiras, for a number of years, exceeding seven, systematically violates the "Habitats Directive", the "Bird Protection Directive", the "SPD Directive", as well as the corresponding national legislation (Law 153 (I ) / 2003, L.152 (I) / 2003 and L.127 (I) / 2018), as a result of which the integrity of the area is not preserved or damaged.

6. General recommendations

a. We drew the attention of both the IT and the TPO to the fact that the SPA under consideration is particularly burdensome, since, according to the former, a significant number of positive opinions have already been given for a host of developments in the region.

b. We have drawn the attention of the Environmental Authority to the need for full compliance with the national and Community institutional framework, with regard to the timely and appropriate IE of environmental impacts from projects that may significantly affect the Natura 2000 Network area, per se or jointly with other projects.

We stressed once again the need to comply with the acquis communautaire, as its violation may lead to sanctions in the Republic of Cyprus. In this regard, we noted that the European Commission, with Warning Letter-Infringement no. 2019/2303, date 27.11.2019, pointed out, inter alia, that "τία The Republic of Cyprus, in general and continuously, does not ensure that its authorities submit plans or projects not directly related or necessary for the management of the site, but which may have a significant impact the site in question, either alone or in combination with other plans or projects, in terms of their impact on the site, taking into account the conservation objectives of the site and, based on the conclusions of the site impact assessment, agree on plans or projects only after making sure that they do not infringe on the integrity of the site in question… ", in violation of Article 6 (3), in conjunction with Article 6 (7) of the" Habitats Directive ".

c. We pointed out the need for full compliance of the TPO with the current national and European institutional framework, regarding the examination of applications for projects subject to ex ante environmental assessment and recommended the disciplinary examination of the TPO officials involved.

d. We recommend the search for the responsibilities of the Municipality of Sotira, as the competent Building Authority, regarding the promotion of the urban planning permits of the project mentioned in paragraph 4.2, to the Environmental Authority, despite the illegal start of construction works by the developer, the omission to inform the Environmental Authority about the illegal start of the works and in relation to its illegal activities within the said SPA.

ANNEXES

Annex 1 - Environmental assessments

Environmental impact assessment

The aim of Directive 2011/92 / EU on the assessment of the impact of certain public and private projects on the environment ("SPD Directive"), as amended by Directive 2014/52 / EU, is to take all necessary measures to It is ensured that, before a permit is granted, projects that may have a significant impact on the environment due, inter alia, to their nature, size or location, are subject to an obligation to authorize and assess their impact. From the explicit provisions of both article 2 (1) of the SPC Directive and article 17 (1) of the Law on the Assessment of the Impact on the Environment by Certain Draft Laws (Law 127 (I) / 2018), the impact assessment in the environment, from certain public and private projects, must precede the permit issued by the Urban Planning Authority. This principle is confirmed by decisions of the European Court of Justice, as well as a relevant opinion of the Legal Service.

According to the fundamental article 3 of the "SPD Directive", in the SPD are properly identified, described and evaluated, on a case-by-case basis, the direct and indirect significant effects of a project:

a. population and human health,

b. biodiversity and in particular protected species and habitats under the Habitats Directive and the Birds Directive,

c. soil, water, air and climate,

d. in material goods, cultural heritage and natural landscape and

e. the interaction between the factors referred to in points (a) to (d).

Specific ecological assessment / appropriate environmental impact assessment

Directive 92/43 / EEC, on the conservation of natural habitats, as well as of wild fauna and flora ("Habitats Directive"), provides for the preparation of the EP, through the evaluation of Special Ecological Assessment Studies, the impact on the environment, in terms of especially in the European Ecological Network "Natura 2000". The purpose of the DE is to ensure the protection and integrity of the areas of the "Natura 2000" Network.

According to Article 6 (3) of the Habitats Directive, "Any project, not directly related or necessary for the management of the site, which may, however, significantly affect the site in question or in conjunction with other projects , is duly assessed for its impact on the site, taking into account its conservation objectives. On the basis of the conclusions of the site impact assessment and, except as provided in paragraph 4, the competent national authorities shall agree to the plan only after ensuring that it does not prejudice the integrity of the site in question and, where appropriate, after public opinion ".

Also, according to paragraph 3 of article 16 of the Law on Protection and Management of Nature and Wildlife (Law 153 (I) / 2003), which harmonizes the national legislation with the mentioned article 6 (3) of " Habitats Directive "," Any project subject to an urban planning permit, any public project and any project that determines the scope of their approval, when the project in question, public project or project is not directly related or necessary for the management of an area which falls in a specific conservation zone, but may affect it, in itself or in conjunction with another project, public project or project, is subject to an IA of its effects in the area, taking decisive account of the conservation objectives of that area and the specific conservation area concerned and the public opinion on the project or project ".

As well as according to paragraph 4 of the same article, “…… a project that is subject to a planning permission, a public project, or a plan that defines the framework for their approval is approved or adopted by the town planning authority or state service, local authority or legal entity public law, as the case may be, only if the opinion of the environmental authority confirms that the project in question, a public project or project does not prejudice the integrity of the site or distorts its character ".

We note that, according to article 7 (5) of the Law on Protection and Management of Wild Birds and Prey (Law 152 (I) / 2003), articles 15 and 16 of the Law on Protection and Management of Nature and Wildlife apply and for SPAs.
According to paragraphs 1 and 3 of article 16 of Law 153 (I) / 2003, any plan or project which is either subject or not subject to a planning permit and which is not directly related or necessary for the management of an area that falls in a special zone of conservation, but may affect it, by itself or in conjunction with another plan or project, is subject to an IM of impact.

In conclusion, each of the two reports under consideration (SPD and AD) has a different ultimate purpose and evaluates the effects with a different focus. Thus, one SPD can not replace or substitute one DE, and neither procedure overrides the other. We drew attention to Part VI "Common procedures with the special ecological assessment" of Law 127 (I) / 2018, which explicitly describes the procedure to be followed in the cases of projects for which the obligation to conduct SPD arises, from the provisions of the said Law and DE, in accordance with the provisions of article 16 of L.153 (I) / 2003 and article 7 of L.152 (I) / 2003.

In this regard, we mention that because the first development concerns MTA, the framework for the introduction of MTA is described below.

The Council of Ministers, with its Decision on 16.10.2013, decided to approve the framework for the introduction of MTAs, with the aim of upgrading, enriching the tourism product offered and at the same time improving the hotel industry's ability to secure additional financial resources.

According to the mentioned context, the term MTA refers to the coexistence and parallel operation of a hotel unit with other uses, such as residential, commercial, offices, etc., according to the Spatial Framework of the Development Plans, in the same stadium or in the same shell. The mode of this development is characterized by the following two categories:

a. The Tourist Developments with other uses outside the building of the hotel unit.

b. The Tourist Developments with other uses inside the building of the hotel unit.