Region: Ukraine, Ivano-Frankivsk region, Dzembronya village (former Berestechko village, Bystrets local council).
Trial: on invalidation of the land rental agreement dated August 16, 2010, concluded between Bystrets local council and Myronyuk V.V. The application of the consequences of the invalidity of the transaction, namely: to oblige the Myronyuk V.V. to bring the land plot to its original condition, to dismantle the laid pipes, and return the plot to the Bystrets local council; as well as to terminate the contract of subrent of the land plot dated October, 15, 2010 concluded between Myronyuk and LLC Hydropower.
The purpose of the case is to protect the EPL interest, which includes preservation of the river Dzembronja.
Parties: Claimer – International charitable organization “Environmental-People-Law”, Respondent 1 – Bystrets local council, Respondent 2 – Myronyuk V.V., Respondent 3 – LLC Hydropower.
The essence of the problem: the upper stream of the Dzembronya River and all its right tributaries are included in the territory of the Carpathian National Park. The boundary of the park goes along the banks of the Dzembronya River, where snowdrop grows, which populations will be destroyed as a result of laying pipes along the river. In addition, the Dzembronya River is a tributary of the Black Cheremosh River – a hydrological reserve of local importance, created to protect the spawning place of valuable fish species of the Carpathian ichthyofauna – trout stream, harrier, and Balkan barbel. Any changes in the hydrological regime of the Dzembronya River will lead to a change in the hydrological regime of the Black Cheremosh. Moreover, the Dzembronya is small and shallow, therefore, the construction of a small hydroelectric power station (hereinafter – small HPS) there will lead to the actual drying out of the river.
On August 16, 2010, the Bystrets local council concluded a land rental agreement with Myronyuk V.V., according to which the Bystrets local council provided for a fixed term paid land use a land plot with a total area of 1,1421 hectares for the construction and maintenance of a small hydroelectric power station located in Dzembronya village, which is subordinated to Bystrets local council.
On October 15, 2010, the Bystrets local council and Myronyuk V.V. concluded a subrental contract by which Hydropower LLC transferred the right to the land plot with a total area of 0.2623 hectares for the construction and maintenance of a small HPS.
The aforementioned contracts stipulate the right of the tenant and the lessee to build small HPSs on the Bily Cheremosh River. The fulfillment of contractual obligations (the construction of small HPSs) will destroy the Dzembronya River and the species of plants and fish listed in the Red Data Book of Ukraine, living within the river borders. Consequently, this argument goes beyond the scope of private legal interest and acquires an all-Ukrainian scale.
In order to protect the environment for the interest of society, and protecting our legitimate interest in this, on November 27, 2014, the EPL appealed to the court with a suit on invalidation of the land rental agreement dated 16.08.10 concluded between Bystrets local council and Myronyuk V.V. and the application of the consequences of the invalidity of the transaction, namely: to oblige Myronyuk V.V. to bring the land plot to its original condition, to dismantle the laid pipes and return the plot to the Bystrytska local council, as well as to terminate the contract of subrent of the land plot dated October, 15, 2010, concluded between Myronyuk and LLC Hydropower.
The plaintiff substantiates the claims by the following arguments:
1. Absence of all essential terms of the contract in the rental contract.
2. Violation of the requirements of the current legislation on the rent of land.
3. Unlawful transfer of land for rent.
On March 6, 2015, the Economic Court of Ivano-Frankivsk Oblast made a decision to dismiss the EPL claim. In the decision, the court noted that the plaintiff had failed to prove how the land rental contract in general, as well as some of its paragraphs, violate the environmental legislation itself, and therefore the rights and interests of the plaintiff.
EPL appealed against the decision, however, the Lviv Economic Court of Appeal agreed with the findings of the court of the first instance and left the EPL’s appeal without satisfaction.
It should be noted that at the moment of filing a claim, the HPS had not worked yet, therefore, it was impossible to prove actual damage.
The court decisions can be found by the links:
decision of the first instance court – http://www.reyestr.court.gov.ua/Review/43074419
appeal decision – http://www.reyestr.court.gov.ua/Review/45367600