On 9 October 2024, the Supreme Court within Cassation Administrative Court issued a decision in case № 807/1314/17. By this decision, the Court repealed the decision of 8th Appeal Administrative Court and left the decision of the court of the first instance in force. By the judgement of the later, decisions of Tyachiv and Rahiv regional administrations on approval of detailed plan of the territory for construction of Svydovets ski resort were annulled. (text of the decision in Ukrainian https://reyestr.court.gov.ua/Review/122379452)
The Supreme Court made three significantly important conclusions:
Conclusion concerning prematurely adopted contested detailed plan of the territory with the absence of approved Scheme of planning of separate part of territory of the Carpathian mountains in accordance with art. 12 of the Law «On regulation of city planning activities»
The Supreme Court stated: «… defendants by approval of the contested detailed plan of the territory failed to take into account that territories covered by the detailed plan of the territory are considered as separate parts of territory of Ukraine, which are subject to planning documentation at national level. … Detailed plan of the territory of Svydovets has to be developed on the basis of the Scheme of planning of separate part of territory of the Carpathian mountains, which has to be developed based on the decision of the Cabinet of Ministers of Ukraine, but not on the basis of the Scheme of planning of territory of Zakarpatya region, as defendant performed. … On the contrary, during preparation of the contested detailed plan of the territory, the Scheme of planning of separate part of territory of the Carpathian mountains was missing»
Conclusion concerning importance of adherence to the public participation provisions during public consultations on city planning documentation, to be performed in the form of dialogue between local residents, local community and deputies
Supreme Court in its decision stated: «The Cessation Court notes that plaintiffs reasonably pointed out the inconsistency of the information concerning detailed title of the detailed plan of the territory in notifications on public hearings dedicated to discussion of contested detailed plan of the territory. This undermined possibility of the public to understand the goal and task of the hearing in full… The appeal court concluded by mistake that shortcomings of notifications on public hearings are minor and they haven’t impacted the execution of the rights of citizens to public discussion of the draft detailed plan of the territory. …
In addition, the bench of Supreme Court states that norms of current legislation do not contain exemptions, allowing to release only part of city planning documentation based on its big volume.
… Thus, the Bench of the Supreme Court agrees with the conclusion of the court of first instance that defendants failed to ensure adequate procedure of public consultations on the draft of detailed plan of the territory.»
Conclusion concerning obligation to conduct SEA for contested detailed plan of the territory in 2017 (before the Law on SEA comes into force) on the basis of international agreement
The Supreme Court said:
«Thus, taking into account the provisions of the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, detailed plan of the territory of location of ski resort Svydovets is subject to SEA as a document, defining plan and program of development of certain territory in the meaning of the Protocol …
Taking into account abovementioned, the bench of judges of SC disagrees with the conclusion of the appeal court that, because the day of 12 October, 2018 is not the date from which the contested detailed plan of the territory is subject to SEA, but the date starting from which the conduct of SEA is being regulated not only by the obligatory provisions of the Protocol on SEA to the Convention on Environmental Impact Assessment in a Transboundary Context, but also by the norms of the Law № 2354 (Law On Strategic Environmental Assessment)… Nevertheless, the defendants have not conducted the SEA of the contested detailed plan of the territory.»
Thus, the Supreme Court have made correct conclusions that will allow to protect such valuable natural territories as Svydovets mountain range from plans of mega-resorts, such as Svydovets.
There was a separate opinion expressed by one of the judges from the bench https://reyestr.court.gov.ua/Review/122384371 in this case. The judge outlined 3 key questions that had to be resolved during consideration of this case and which had to be subject to legal conclusions by the Supreme Court as the highest court. The judge commented on the following points:
The Carpathian mountains are the unique natural treasure, important part of ecological, economic, cultural and recreational environment and habitat, national wealth of the whole Ukrainian nation. Thus, the question is whether two regional administrations (Rahiv and Tyachiv) are empowered to approve the detailed plan of the territory for location of the tourist complex «Svydovets»?
The role of the Cabinet of Ministers of Ukraine as the highest executive body ensuring territorial planning of Ukraine on the state (national) level, including mountain territories of the Carpathians (art.12 of the Law “On city planning activities” dated 17/02/2011 №3038-VI), including with connection to art. 19 of this Law ; the impact of this decision during consideration of the case concerning detailed plan of the territory of separate parts of territory of Ukraine on legal rights and obligations of the Government and the possibility of consideration of this dispute without participation of the Cabinet of Ministers of Ukraine.
The question is whether it was fair to issue final decision in this case while having numerous facts of incorrect application of material norms and violation of procedural norms? Under such condition whether it was not appropriate to repeal the decisions of previous courts and referral of the case for reconsideration to the court of first instance?
On the topic 1 the following conclusions were made:
Based on the provisions of art. 19 of the Law №3038-VI together with art. 12 of this Law, the judge thinks that the bench of SC left without due attention the establishment of factual circumstances in this case, which are important for this dispute, and this prevented the cessation court from formulation of clear legal position on this case. In particular, the following important question should be answered: is it enough to have the Scheme of planning of Zakarpatya region for the development and approval of the detailed plan of the territory covering a few rayons (subregions) within this region in case when this territory is located outside of the settlements, which are defined in legislation as highland settlements, but the legislative provisions on defining this territory as highland area of the Carpathians are missing.
On the topic 2 the following conclusions were made:
The laws clearly demonstrate that seas, mountains and territories affected by Chornobyl disaster are not local issues but national priorities. That is, legislative norms empower only the Cabinet of Ministers of Ukraine to initiate the development of the Schemes of planning of separate parts of territories of the Carpathians. Thus, only the Cabinet of Ministers of Ukraine in current case is empowered to ensure the planning of the territory of Ukraine on the national level, including planning of its separate parts, such as parts of the Carpathians…
The legal position of the majority of judges in the bench on this case certified that the subject of this dispute is not concerned with legally defined powers of the Cabinet of Ministers of Ukraine and the possibility to consider this case with the absence of this body as a party to this dispute. The judge disagrees with this position, as she is sure that the result of consideration of this case will directly impact the rights, obligations and interests of the Cabinet of Ministers of Ukraine as a body implementing territory planning of Ukraine on the national level, including planning of its separate parts … But provisions of procedural laws and principles of administrative jurisdiction were ignored by the court of the first, second instance and the Supreme Court by not involving the third party to this case – the Cabinet of Ministers of Ukraine.
On the topic 3 the following conclusions were made:
The judge pointed out the neglected fact of presence/absence of power of attorney by attorney Ivanova Y.O. to represent and act on behalf of Tyachiv and Rahiv regional administrations in court of the first instance and in appeal court during consideration of this case.
These circumstances were ignored by the bench of SC and not mentioned in the Decision of the court dated 09.10.24. The judges did not check how the lower courts followed the procedural norms on checking the rights of attorney of Ivanova Y.O. to represent the Tyachiv and Rahiv state administrations as defendants in the present court case.
The judge summarized “…The case № 807/1314/17 was considered with evident flaws. This prevented the SC from taking a grounded decision on the basis of fully established circumstances of the case, supported by permissible and acceptable body of evidence, with evaluation of all the arguments of the parties to the dispute. Hence, the Supreme Court had to revoke the decision of the court of the first instance dated 19/07/22 and the decision of the appeal court dated 15/12/22, and redirect the case № 807/1314/17 to the court of the first instance for new consideration.”
Therefore, all the SC judges in the bench agreed that the process of decision-making on approval of the detailed plan of the territory by Tyachiv and Rahiv state administrations was followed by violations, and decisions of previous courts had numerous flaws. The judges agreed that the plans of construction of such huge facility in the Carpathians had to be decided on a national level, and later local bodies had to be involved. These are the central authorities that had to formulate and detail their vision of the development of particularly important natural areas and urbanized territories of the Carpathians, which takes into account the natural value of the territory and the necessity of economic development. The Court also agreed that often even light violations of SEA procedure and public consultations, absence of access to all necessary materials of planning documentation consist violation of legislation and create obstacles for effective public participation, for a dialogue with investors and local communities. Thus, those investors that conceal their plans and ignore a dialogue with communities, receive conflicts and litigation, and lack of trust for future cooperation with communities and wide public.
The position of the SC proved that this court played a role of independent arbitrator in this dispute and formulated conclusions on the topics where lower courts searched for the arguments or reasonings, or allowed incorrect interpretation of legal norms.
The SC confirmed that planning of the development of mountain regions of the Carpathians has to be preceded by the development of city planning documentation at the national level and approval of appropriate Schemes of planning by regional (oblast) councils. Later the local city planning documentation had to be developed and agreed with the Scheme of planning in a certain region.
For more information on this case please visit: https://epl.org.ua/en/law-posts/zahyst-osoblyvo-tsinnogo-masyvu-svydovtsya/
And web-resources of our partners: https://freesvydovets.org/en/
