Essence of the case: conservation of biological diversity and the territory of NPP “Holosiyivskyi”
The essence of the problem:In April 2016, unknown individuals cut down trees on 0.40 hectares of the Holosiyivskyi National Nature Park in the Bychok tract. These unknown individuals were representatives of Avesta-Bud LLC, which in 2008 and 2010 leased a 2.56-hectare plot of land for construction within the Holosiyivskyi National Nature Park. We are talking about areas with rich biological diversity, including oak grove (forest), which are part of the recreation area of NNP “Holosiyivskyi”, which were declared the object of nature reserve fund in 1995.
Parties: The Cabinet of Ministers of Ukraine, Ministry of Environment and Natural Resources of Ukraine, Kyiv City Council, Holosiyivskyi National Nature Park, NGO Korchuvate-Nash Dim, Kyiv Municipal Association of Green Construction and Operation of Green Plantations of Kyivzelenbud, Department of Land Resources of the Executive Body of Kyiv City Council (KCSA) , Department of Urban Development and Environmental Protection of the executive body of the Kyiv City Council (KCSA), EPL.
Key facts:
The Bychok tract is one of the most valuable sites in the Holosiyivskyi National Park, which includes areas of mature oak forests and needs to be transferred to the protected zone of Holosiyivskyi National Nature Park.
The territory of the Bychok tract in Holosiyivskyi district of Kyiv, even before the Verkhovna Rada of Ukraine approved the Law of Ukraine “On the Nature Reserve Fund of Ukraine” was proposed by scientists for inclusion in the Holosiyivskyi National Nature Park (NNP) as a particularly valuable area of mature oak forests. . This proposal was first published in 1989 by experts from the Institute of Botany. M.H. Kholodnyi NAS of Ukraine1.
The petition for the need to create the national park “Holosiivskyi” was prepared and submitted on May 18, 1993 by “Green World” NGO (Appendix 1). Initially, it was planned that the NNP would extend not only to Kyiv, but also to the Kyiv region, have an area of 65,000 hectares and extend south to the village Vytachiv. Extractors. In the long run, it was to include the Trakhtemir Peninsula and the Kaniv Nature Reserve. At that time, it was planned to create other powerful nature reserves of national importance, which were to form a protected network along the Dnipro called “Necklace of the Dnipro“.
On October 22, 1993 at the Ministry of Environment of Ukraine, chaired by Deputy Minister Y. I. Movchan a meeting of the Holosiyevo Commission (Appendix 2) was held outlining the boundaries of the future NNP, including the Bychok tract. Approval of the establishment of the NNP took place only within the city of Kyiv. Users and owners of the sites designed for the NNP agreed that the sites should be included into NNP.
The Resolution of the Verkhovna Rada of Ukraine “On the Program of Perspective Development of Protected Areas in Ukraine” provided for the establishment of NPP “Holosiyivskyi” and funding for it.
In 1994, by the decision of the Kyiv City Council № 14 of December 2, 1994 “On the creation, reservation and preservation of territories and objects of the nature reserve fund in Kyiv”2All lands on the area of 11 thousand hectares (Appendix 3), including 59 hectares of the Bychok tract are reserved for creation of NNP.
In 1995, by the decision of the Kyiv City Council №45 of 20.02.1995 “On the organization of the regional landscape park“ Holosiyivskyi ”(Appendix 4) the Regional Landscape Park (RLP)“ Holosiivskyi ”was created, which is functionally analogous to the national nature park, but is an object of local significance and is subordinated to the local council. The area of RLP was 11,000 hectares. Its territory absorbed all the lands projected for the national nature park, which are within the administrative boundaries of Kyiv. According to the Project of organization of the territory of the regional landscape park “Holosiyivskyi” in Kyiv (1999), the tract “Bychok” is referred to the zone of regulated recreation (Appendix 7).
Since then, the process of creating a NNP has begun, including the dudget project for the creation of a NNP “Holosiyiv” (Appendix 8), which also considers the tract “Bychok” as a zone of regulated recreation.
Subsequently, on December 23, 2003, a new decision of the Kyiv City Council #334/1209 was adopted on creation of the first stage of the regional landscape park “Holosiyiv” by which RLP “Holosiyivskyi” was reorganized into “the 1st stage of RLP “Holosiyiv” leading to decrease of the area of protected area from 11 thousand hectares of park to 5 600 hectares (Appendix 5). It should be noted that the Bychok tract remained part of the territory of the NNP facilities as land of the Koncha-Zaspa forest park.
On March 9, 2006 № 170/3261, Kyiv City Council decided to approve the creation of a natural park with the working name “Holosiyiv” on the lands of Kyiv, namely Holosiyivsky National Nature Park (Annex 6), developed by the Ukrainian State Project Forest Management Ukrderzhlisproekt Association (UDC 502.4 № of state registration 01000004908) and approved by the Head of the State Department of Environment and Natural Resources in Kyiv on January 24, 2002, including the creation of the first phase within the existing regional landscape park “Holosiyiv” on the area of 5236 ha.
NPP “Holosiyivskyi” was established by the Decree of the President of Ukraine № 794/2007 of August 27, 2007.
Claims of Avesta-Bud LLC on the disputed land plot.
The initial land lease agreement was concluded in accordance with the decision of the Holosiyivskyi District Court of Kyiv of April 21, 2008, which recognized the right of Avesta-Bud LLC to lease the disputed land plot, which already indicates to certain land schemes. After all, the court does not have the right to recognize the right of ownership or lease, it can confirm the acquisition of this right in the presence of certain circumstances and the absence of a title document. This may happen due to the impossibility of concluding a contract in the presence of a decision of Kyiv City Council. However, if the owner Kyiv City Council has not adopted a decision on this land, the court cannot make this decision instead of Kyiv City Council.
It should be noted that Avesta-Bud refers to an unapproved land allotment project, according to which the boundaries of the Bychok tract have been changed, and their plot is no longer included in the park.
These maps date back to 2009, and therefore, as of the time of the contract, they did not exist.
Later, Avesta-Bud LLC entered into a new land lease agreement in accordance with the decisions of the Kyiv City Council dated July 9, 2009 № 801/1857, October 29, 2009 № 532/2601, March 25, 2010 № 446/3884 on amendments to the land lease agreement dated July 1, 2008 № 79-6-00623 concluded between the Kyiv City Council and Avesta-Bud LLC.
It should be noted that the decision of Kyiv City Council of July 9, 2009 N 801/1857 in general introduces another entity that claims rights to this land plot – “private enterprise” HIGHLAND”, and the decision of Kyiv City Council №532,2601 of October 29, 2009 indicates the conclusion of a contract of novation with Avesta-Bud LLC
As can be seen from the above, the Kyiv City Council did not provide a decision in accordance with Art. 123 of the Land Code of Ukraine on the transfer of land for use on the basis of a lease agreement either to “Avesti-Bud” or to “Highland”.
Kyiv City Council also failed to comply with Art. 16 of the Law of Ukraine “On Land Lease” on the conclusion of a lease of land from state or communal lands.
Also, the current legislation of Ukraine does not provide such a basis for concluding a land lease agreement as a novation of the original obligation and a decision to amend the land lease agreement.
A court decision recognizing the right to lease a land plot may take place if the land plot has been leased in accordance with the decision of Kyiv city council, i.e. the arose but was not duly executed.
In the situation with Avesta-Bud LLC, the lease right did not arise, so it cannot be recognized by the court, as the court does not have the right to dispose of land, so in the situation with Avesta Bud LLC, the court went beyond its powers.
Omissions of the Kyiv City Council.
The current legislation imposes on the Kyiv City Council responsibilities for proper management of land resources, its implementation in accordance with the law and in compliance with environmental requirements, which we justify as follows.
According to Art. 33 of the Law of Ukraine “On Local Self-Government of Ukraine”, the obligation of the executive body of the Kyiv City Council is to monitor compliance with land and environmental legislation, use and protection of land.
According to Art. 2 of the Law of Ukraine “On State Control over Land Use and Protection”, which determines the legal, economic and social basis for organizing state control over land use and protection and aimed at ensuring the rational use and reproduction of natural resources and environmental protection, local governments must comply with land legislation of Ukraine.
According to Article 9 of the Law of Ukraine “On Land Protection”, Kyiv City Council is obliged to organize and control the use and protection of communal lands and establish restrictions (encumbrances) in use, temporarily prohibit (suspend) or terminate the use of land by legal entities in case of violation of the requirements of the legislation in the field of land protection.
According to Article 20 of the Law of Ukraine “On Land Protection”, self-governing control over the use and protection of land is exercised by city councils.
According to Article 48 of the Law of Ukraine “On Land Protection”, protection of lands in the process of urban planning is to comply with environmental requirements established by the legislation of Ukraine, in the design, location and construction of facilities.
According to Article 50 of the Law of Ukraine “On Land Protection”, protection of lands of health, recreation, historical and cultural, environmental importance is carried out by including these lands in the environmental network, limiting their withdrawal (purchase) for other needs and limiting anthropogenic impact on such lands. The procedure for the use of lands of health, recreational, historical and cultural, environmental importance and the creation of an environmental network shall be established by law.
According to Article 56 of the Law of Ukraine “On Land Protection”, legal entities and individuals guilty of violating the legislation of Ukraine on land protection are liable in accordance with the law. The application of measures of disciplinary, civil, administrative or criminal liability does not release the perpetrators from compensation for damage caused to land resources. Damage caused as a result of violation of the legislation of Ukraine on land protection is subject to compensation in full.
Thus, during the conclusion of the lease agreement on the disputed land plot, as well as during its implementation, the city council had to control the correctness of the conclusion of the latter and protect lands that were particularly valuable areas of nature reserves since 1993.
The special status of the Bychok tract as an integral part of the nature reserve fund.
The status of territories and objects of the nature reserve fund is determined by the Law of Ukraine “On Nature Reserve Fund of Ukraine”, which defines that the nature reserve fund is protected as a national heritage, for which a special regime of protection, reproduction and use applies. Ukraine considers this fund as an integral part of the world system of natural territories and objects under special protection.
According to Art. 6 of the Law of Ukraine “On Nature Reserve Fund of Ukraine” territories and objects that have special ecological, scientific, aesthetic, economic, as well as historical and cultural value, are subject to comprehensive protection, the procedure for which is determined by the provisions of each such territory or facilities, which in accordance with this Law and the legislation of Ukraine on the protection of historical and cultural monuments is approved by the central executive body in the field of environmental protection and the central executive body in the field of culture.
According to Article 7 of the Law of Ukraine “On Nature Reserve Fund of Ukraine”, lands of nature reserve fund are areas of land and water space with natural complexes and objects that have special environmental, environmental, scientific, aesthetic, recreational and other value, which in accordance with the law is granted the status of territories and objects of the nature reserve fund.
Lands of the nature reserve fund of Ukraine, as well as lands of territories and objects that have special environmental, scientific, aesthetic, economic value and are in accordance with Article 6 of this Law objects of complex protection, belong to the lands of the nature reserve fund and other environmental or historical and cultural purposes.
The boundaries of the territories and objects of the nature reserve fund are established in kind in accordance with the legislation. Prior to the establishment of the boundaries of territories and objects of the nature reserve fund in kind, their boundaries shall be determined in accordance with the projects for the creation of territories and objects of the nature reserve fund.
Article 9 of the Law of Ukraine “On the Nature Reserve Fund of Ukraine” defines the types of use of territories and objects of the nature reserve fund in compliance with the requirements established by this Law and other acts of legislation of Ukraine. These are environmental goals; research goals; health and other recreational purposes; educational goals; for the needs of environmental monitoring.
Kyiv City Council allows improper use of land.
According to Article 64 of the Law of Ukraine “On the Nature Reserve Fund of Ukraine”, the responsibility for violation of the legislation on the nature reserve fund is borne by persons guilty of:
a) misuse of territories and objects of the nature reserve fund, violation of the requirements of the projects of creation and organization of the territories of the nature reserve fund;
b) implementation of prohibited economic activities within the territories and objects of the nature reserve fund, their protection zones;
c) organizations on the territories and objects of the nature reserve fund, in their protected zones of economic activity without prior ecological examination or in violation of its conclusions;
g) damage or destruction of natural complexes of territories and objects of the nature reserve fund and reserved for inclusion in its structure;
h) spontaneous change of boundaries, allocation of territories and objects of the nature reserve fund for other needs.
According to Article 150 of the Land Code of Ukraine, especially valuable lands include:
d) lands of nature reserve and lands of other nature protection purposes, lands of historical and cultural purposes.
According to Art. 143 of the Land Code of Ukraine ,compulsory termination of rights to land is carried out in court in the case of:
a) use of land not for its intended purpose;
Article 32 of the Law of Ukraine “On Land Lease” stipulates that at the request of one of the parties the land lease agreement may be terminated early by a court decision on the grounds specified by the Land Code of Ukraine and other laws of Ukraine.
Given all the above, the fact that the Kyiv City Council is a local government body representing the relevant territorial communities and performs on its behalf and in its interests the functions and powers of local government defined by the Constitution of Ukraine, these and other laws, that the Constitution of Ukraine guarantees safe living conditions, the Law of Ukraine “On Nature Reserve Fund of Ukraine” defines nature reserve fund as a national heritage, which establishes a special regime of protection, reproduction and use. The Law of Ukraine “On Environmental Protection” defines that environmental protection is carried out in the interests of present and future generations, namely, the objects of the nature reserve fund preserve for our descendants the environment, that the natural resources of Ukraine are the property of the Ukrainian people, the territory and objects of the nature reserve fund of Ukraine are subject to special state protection, that the Kyiv City Council monitors compliance with the legislation on environmental protection.
Thus, EPL believes that the disputed land plot never relinquished ownership of Kyiv City Council and was transferred to NNP “Holosiyivskyi”. There is evidence in the case, in particular, the conclusion of Olena Sinna from Kharkiv University about comparison of borders of the land plots according to the General plan, the project of creation of NNP, the project of creation of RLP that it is one and the same land plot.
We are talking about the right of ownership of the Ukrainian people to land, which is also not subject to alienation, guaranteed by the Constitution of Ukraine. This is the norm of direct action. A lease illegally accepted by an unauthorized body may not deprive the people of Ukraine of the right to own particularly valuable plots of land.
Litigation at the national level
EPL vs. Kyiv City Council
On October 5, , EPL filed a lawsuit to declare illegal the adoption by the Kyiv City Council the decision of October 29, 2009 № 532/2601 “On amendments to the land lease agreement of 01.07.2008 № 79-6-00632 , concluded between the Kyiv City Council and the limited liability company “AVESTA-BUD” for the construction of office complexes with hotels, catering establishments, shopping and entertainment facilities and parking lots, the creation and improvement of recreation parks, squares, playgrounds, with their subsequent operation and maintenance. ”
NNP “Holosiyivskyi” vs. LLC “Avesta-Bud”
In November 2016, EPL filed a lawsuit against NPP Holosiyivskyi and the NGO “Korchuvate-Nash Dim” for invalidation of the land lease agreement between Kyiv city council and Avesta-Bud LLC and return of the land plot to its previous condition.
On April 5, 2017, EPL prepared and filed a cassation appeal against the decision of the Kyiv Commercial Court of Appeal.
Court decisions can be found at the following links:
https://reyestr.court.gov.ua/Review/65491777
https://reyestr.court.gov.ua/Review/68038538
https://reyestr.court.gov.ua/Review/69949537
