The Supreme Court, sitting as a panel of judges of the Cassation Administrative Court, in its Ruling dated February 9, 2023, in Case No. 1540/3905/18 concerning the appeal against a decision to cancel the urban planning conditions and restrictions for the development of a land plot — on the grounds that the intended construction project does not in any way alter the designated land use and does not violate applicable law — reached the following conclusions:
The right to develop a land plot is exercised by its owner or user, provided that the land is used in accordance with the requirements of the urban planning documentation.
Design and construction of facilities are carried out by the owners or users of land plots in the following order:
- the customer or designer obtains the initial data;
- the design documentation is developed and, where required by Article 31 of this Law, undergoes expert review;
- the design documentation is approved;
- preparatory and construction works are carried out;
- the completed construction project is put into operation;
- ownership rights to the urban development object are registered.
According to Article 29 of the Law of Ukraine “On Regulation of Urban Development Activities”, the main components of the initial data include: urban planning conditions and restrictions; technical specifications; the design assignment.
The grounds for refusing to issue urban planning conditions and restrictions are as follows:
- inconsistency of the construction intentions with the requirements of local-level urban planning documentation.
- failure to submit the documents specified in part three of this article, which are necessary for the decision-making on issuing urban planning conditions and restrictions;
- detection of false information in the documents certifying ownership or use rights to the land plot, or in documents certifying ownership of real estate located on the land plot;
According to paragraph 2.1 of Section II of the Procedure for the Issuance of Urban Planning Conditions and Restrictions for Land Plot Development, Their Composition and Content, approved by Order No. 109 of the Ministry of Regional Development, Construction, and Housing and Communal Services of Ukraine dated July 7, 2011 (hereinafter – Procedure No. 109), urban planning conditions and restrictions constitute a key component of the initial data. These conditions and restrictions are issued free of charge by the relevant authorized urban planning and architectural authorities within seven working days from the date of registration of the relevant application along with the documents specified in paragraph 2.2 of this section, in accordance with the procedure established by the Law of Ukraine “On Regulation of Urban Development Activities.”
As follows from the analysis of the legal norms above, urban planning conditions and restrictions are issued based on urban planning documentation (in this case, at the local level) upon request by an interested person to the authorized authority with submission of the required documentation. One of the grounds for refusing to issue urban planning conditions and restrictions is the inconsistency of the proposed development intentions with the provisions of relevant urban planning documentation at the local level. Such inconsistency is established either at the stage of issuance of urban planning conditions and restrictions or later during state construction oversight or judicial review.
“Inconsistency of development intentions” means that the proposed construction project does not comply with the requirements of the local-level urban planning documentation – namely, the approved textual and graphic materials governing the planning, development, and other uses of the territory of a specific settlement.
A similar legal position is reflected, in particular, in the rulings of the Supreme Court dated:
December 16, 2021 in case No. 826/8034/17.
April 11, 2018 in case No. 803/1231/17,
August 14, 2018 in case No. 823/5265/15,
February 11, 2020 in case No. 803/1596/17, and
⭕️ Therefore, the issuance of the relevant urban planning conditions and restrictions in itself indicates that the proposed development intentions comply with the requirements of local-level urban planning documentation.
However, the Department of the State Architectural and Construction Inspectorate in the Odesa Region issued a decision to revoke the urban planning conditions and restrictions for the design of the construction project.
According to Article 29 of the Law of Ukraine “On Regulation of Urban Planning Activities,” urban planning conditions and restrictions remain valid until the completion of the construction project, regardless of changes in the developer.
Revocation of urban planning conditions and restrictions may occur:
- at the request of the developer;
- by chief building inspection officers during the exercise of state architectural and construction supervision, in the event of non-compliance of the urban planning conditions and restrictions with urban planning legislation, local-level urban planning documentation, building codes, standards, and regulations;
- by a court decision.
In the case of revocation through state architectural and construction supervision or by a court decision, officials of the relevant authorized urban planning and architectural body shall bear responsibility in accordance with the law.
From the content of the cited legal provision, it follows that one of the grounds for revoking urban planning conditions and restrictions is their non-compliance with urban planning legislation, local-level urban planning documentation, building codes, and standards, as identified during the exercise of state architectural and construction supervision by authorized officials.
The courts have established that the plaintiffs obtained urban planning conditions for the design of a construction project—specifically, the reconstruction and expansion of a rehabilitation and dolphin therapy center—within the boundaries of land plots that are under lease, without altering the existing height levels of the structure.
At the same time, as already noted, the land plots provided to the plaintiffs are designated for the construction and maintenance of recreational facilities.
No properly substantiated information indicating an intention to use the land plots for purposes other than their designated use was submitted to the court.
Moreover, since the land plots are used by the plaintiffs under lease agreements and are designated for the construction and maintenance of recreational facilities, operation, and maintenance of non-residential buildings, the land plots may be used for such construction.
⭕️ At the same time, the court notes that the provisions of the Law of Ukraine “On the Regulation of Urban Development Activities” and the Civil Code of Ukraine—which establish that land development must be carried out within the boundaries of the designated purpose of the land, as determined by law, and that the landowner has the right to use the land at their discretion in accordance with its designated purpose—take precedence over local-level urban planning documentation.
In the cassation appeal, the appellant also referred to another ground for the cancellation of the urban planning conditions and restrictions, namely the existence of a restriction on the land plot leased to the plaintiffs. This restriction consists in the fact that the land plot designated for construction is located within the sanitary protection zone of industrial facilities classified as Class III in terms of harmfulness. Additionally, the appellant indicated that the land plots are situated within the water protection zone of the sea and estuaries.
Article 19 of the Land Code of Ukraine defines the exhaustive list of land use categories by their designated purpose. According to this article, the lands of Ukraine are divided by their primary designated purpose into the following categories: (a) agricultural land; (b) land for residential and public buildings; (c) land for nature conservation and other environmental protection purposes; (d) land for health and wellness purposes; (e) recreational land; (f) land of historical and cultural significance; (g) forest land; (h) land of the water fund; and (i) land for industry, transport, electronic communications, energy, defense, and other purposes.
Based on this clearly defined legal classification of land use types, it can be concluded that a sanitary protection zone for industrial production may be attributed exclusively to the category of land for industry, transport, electronic communications, energy, defense, and other purposes.
Regarding the Legal Status of Land Designated for Industrial, Transport, Electronic Communications, Energy, Defense, and Other Uses
According to Article 65 of the Land Code of Ukraine, lands designated for industry, transport, communications, energy, defense, and other purposes are defined as land plots granted, in accordance with the established procedure, to enterprises, institutions, and organizations for the conduct of the relevant activities.
Article 66 of this Code states that industrial lands include those allocated for the placement and operation of main, auxiliary, and supporting buildings and structures of industrial, mining, transport, and other enterprises, including access roads, utility networks, administrative and service buildings, and other facilities.
Therefore, industrial lands are those that, in turn, may be used for carrying out the relevant activities or for the placement of certain industrial or industry-supporting facilities.
Regarding the status of land plots located within the water protection zone of the sea and estuaries
According to Article 88 of the Water Code of Ukraine, in order to protect surface water bodies from pollution and contamination and to preserve their water capacity, land plots for coastal protective strips are allocated within the water protection zones along rivers, seas, and around lakes, reservoirs, and other water bodies.
Pursuant to Article 89 of the Water Code of Ukraine, coastal protective strips are designated as nature protection areas with a regime of restricted economic activity.
In turn, according to Article 85 of the Water Code of Ukraine, land plots within coastal protective strips, withdrawal strips, and shoreline strips of waterways may be leased to enterprises, institutions, organizations, associations of citizens, religious organizations, citizens of Ukraine, foreigners and stateless persons, as well as foreign legal entities for haymaking, fishery needs, cultural and health purposes, recreational, sports and tourist activities, as well as for scientific research purposes.
Thus, land plots within coastal protective strips may be leased, in particular to legal entities, including recreational ones, for sports and tourism purposes.
⭕️ Analyzing the above in its entirety, it can be concluded that the classification of the same land plots within different zones is mutually exclusive even at the legislative level, and therefore such arguments of the appellant are not worthy of consideration.
The appellant’s arguments regarding an alleged de facto change in the designated purpose of the land plots by the claimants are also unfounded, since the case materials contain documents that unequivocally confirm that the land plots belong to the category of recreational land.
In addition, the panel of judges notes that the Law of Ukraine “On the Judiciary and the Status of Judges” establishes that justice in Ukraine is administered on the principles of the rule of law in accordance with European standards and is aimed at ensuring everyone’s right to a fair trial.
According to Articles 1 and 17 of the Law of Ukraine “On the Execution of Judgments and Application of the Practice of the European Court of Human Rights”, courts shall apply, as sources of law, the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, as well as the case law of the European Court of Human Rights and the European Commission of Human Rights.
In particular, in the case of “Rysovskyy v. Ukraine” (No. 29979/04), the European Court of Human Rights found several violations of Article 6 §1 of the Convention, Article 1 of Protocol No. 1 to the Convention, and Article 13 of the Convention in a case concerning land relations. The decision also outlines certain standards of conduct for public authorities, particularly highlighting the elements of the principle of “good governance.”
In its judgment, the European Court of Human Rights noted that the principle of “good governance” requires, in particular, that public authorities act in a proper and as consistent a manner as possible. Furthermore, they are under an obligation to establish internal procedures that enhance the transparency and clarity of their actions, minimize the risk of errors, and promote legal certainty in legal relations. Public authorities that fail to implement or comply with their own procedures should not be allowed to avoid fulfilling their obligations (Application No. 29979/04, paragraph 70).
⭕️ Therefore, having received duly approved urban planning conditions, the claimant had a legitimate expectation to exercise the legal grounds for carrying out construction works on the development site, taking into account the principles of legal certainty and good governance.
Indeed, the principle of legal certainty is one of the essential elements of the rule of law. This principle manifests in various ways. In particular, it is one of the defining principles of “good governance” and “proper administration” (establishment and observance of procedures), and it partially overlaps with the principle of legality (clarity and predictability of the law, requirements for the “quality” of the law). Deficiencies in the work of a state authority must not result in adverse consequences for an individual.
Furthermore, the panel of judges of the appellate court correctly noted that the Department’s reference to the absence of information on the issuance of the said urban planning conditions and restrictions in the register on the official website of the Odesa City Council at the time of the inspection is irrelevant, since such a situation constitutes a failure of the Odesa City Council’s Department of Architecture and Urban Planning to fulfill its duty to publish the relevant data. This failure cannot serve as a ground for the cancellation of the urban planning conditions and restrictions.
Judicial practice in disputes arising from legal relations in the field of urban planning, architecture, and land law can be discussed in the group Urban Planning in Ukraine.
Yuriy Brykaylo, attorney
Ⓒ 2023
