Core of the case: protection of the St. George square park.
Region: Ukraine, Lviv region, Lviv.
Essence of the case: protection of the right to safe and healthy environment, protection of the green spaces from the construction
Parties: EPL, citizens of Lviv, Lviv city council, municipal enterprise “Lvivavtodor”, Curia of the Lviv archdiocese of the UGCC.
Essence of the problem: road construction in the St. George square park.
Main facts:
In order to implement the concept of Ukrainian open competition project for the construction of the Metropolitan Andrey Sheptytskyi monument in Lviv, Lviv city council adopted such decisions:
- “On the construction of the Metropolitan Andrey Sheptytskyi monument and restoration of St. George square in Lviv” from 18.09.2014 number 3818.
- “On approval of the land location and granting permission for the making of the land management project for allotment the land on the St. George square for the Curia of the Lviv Archdiocese of the UGCC” from 25.12.2014, the number 4255 (with amendments from 29.01.2015, decision № 4306).
- “On approval of the land management project and allotment the land on the St. George square for the Curia of the Lviv Archdiocese of the UGCC ” from 26.02.2015, the number 4369.
Construction was planned in the St. George square area, including the area of the park. Decisions foresaw giving the land on rent fot the initiator of the works on reconstruction St. George’s Square (the Curia of the Lviv Archdiocese of the UGCC), construction of the Metropolitan Andrey Sheptytskyi monument, transfer of to the existing road to the park area. In order to implement he decisions significant amount of the green planting in the park were subject to destruction (at least 76 green planting: 45 trees, 28 bushes).
Lviv city council adopted decisions with such main violations:
- Violation of the procedure of the giving land on rent (no land auctions, there is no approved detailed site plan etc.).
- Misuse of land (road construction on the lands of recreational purpose).
- Violation of the procedure of the green planting removal.
- Violation of the procedure of the land management project approving.
- Violation of the procedure of the red lines approving.
- Violation of the the right to safe and healthy environment.
- Violation of the conservation status of the park and St. George’s Square, of the conservation status of historical region of Lviv.
- Violation of international obligations of Ukraine concerning the protection of the world cultural and natural heritage (UNESCO).
- Violation of the conservation of the trees, listed in the Red Book of Ukraine, that grow in the park.
Decisions also provide creation of the green space area which need to be not less than the area of green space existed before reconstruction. However, as of April 2017 green area is less than that which existed before the reconstruction.
St. George square park protection in the civil court (case number 461/5547/15-c)
May 13, 2015, EPL and the citizens of Lviv brought a lawsuit to the Halytskyy District Court against Lviv city council, Curia of the Lviv archdiocese of the UGCC with a demand to obligate the defendants to stop the actions that lead to the destruction of park and green spaces in the area of St. George’s Square (Annex 1). Court took a decision to open proceedings in the case.
June 8, 2015 Lviv city council adopted a decision number 348 in accordance with which the municipal enterprise “Lvivavtodor” became the initiator of the works on reconstruction St. George’s Square. However Curia of the Lviv archdiocese of the UGCC continued to be the renter of the square. In this regard, the plaintiffs added similar claims to the “Lvivavtodor”(Annex 2).
25.06.2015, EPL submitted a request to secure a claim and asked the court to obligate the defendants to refrain from actions that directly or indirectly lead to the destruction of green space park and green space in the area of St. George, in particular to stop the transfer of the road. (Annex 3). 03.07. 2015 EPL submitted similar request. However, in two cases the court rejected requests, justifying this by saying that claim ensuring will solve the case1.
12.01.2015, the court suspended proceeding in the case till the moment of resolving the dispute in the court of administrative jurisdiction (appeal of the decisions on the land rent and on the transfer of the road)2.
08.02.2017 court resumed proceeding in the case3. 24.03.2017 Halytskyy District Court rejected plaintiffs claims4. At that time, the road was already transferred to the territory of the park, and therefore it was decided not to file an appeal against the decision of the first instance court. At the same time the case was successful: amount of the trees which were subject for cutting was reduced and large part of the park was saved.
St. George square park protection in the administrative court (case number 461/7123/15-а)
17.06.2015, EPL and the citizens of Lviv brought a lawsuit to the Halytskyy District Court with a demand to cancel the decisions of Lviv local council to obligate the defendants to stop the actions that lead to the destruction of park and green spaces in the area of St. George’s Square (Annex 4).
26.06.2015 court took a decision to open proceedings in the case5.
The court hearing was postponed several times because of the absence of the defendants. The next hearing was held on the 25 of December, 2015. As the part of the reconstruction works were performed and Lviv local council decisions were implemented, plaintiffs have changed claims and asked court to recognize the actions of adopting decisions by Lviv City Council, which destroyed the park, illegal (Annex 5).
May 17, 2016 the court rejected plaintiffs lawsuit, arguing that the decisionі of Lviv City Council are acts of individual action and generate rights and obligations only to those entities to which they are addressed, and they in no way affects the rights and interests of plaintiffs6. In addition, the court has not taken into account the numerous violations of the law committed during the adoption of the impugned decisions.
Plaintiffs filed an appeal against the decision of the first instance court (Annex 6). But appeal court rejected plaintiffs’ claims7, arguing that decisions didn’t predicte reduction of green areas and the land on which the park is situated is not for the recreational purpose. The court of first instance
and appeale court agreed with the Lviv City Council position that road transport on the territory of the park, where there are trees, grass and other plants, will not lead to a reduction of green area.
October 26, 2016, the plaintiffs filed cassation complaint with the Supreme Administrative Court of Ukraine (Annex 7). November 25, 2016 cassation proceeding was opened8. As for September 2018 hearing did not occur.
Due the trials, the requests and complaints preparation, the joint efforts of the community of Lviv, the large park territory was saved and the width of the road, which was paved through the territory of the park, was reduced. Park was returned into a list of Halytskyy region parks. However, the park still does not have a passport, and the road, which was paved through the territory of the park, is not commissioned.
In July 2016 of Lviv City Council has entered into a settlement agreement with the activists who appealed declaration of works on reconstruction of St. George’s Square, which provides duty of Lviv City Council to make the passport of the park and to take care about the park9. In early 2017 Lviv City Council in response to a request about the inventory of the park and the issuance of the passport informed that there is no funds for these activities (Annex 8).
In the end of 2016, when the budget for the next year is forming, Lviv City Council could foresee money in the budget for the park inventarization and taking care about the park. Not implementing of such measures only proves once again the unwillingness and disinterest of Lviv City Council in the preservation of green areas of the city that is not only the beauty of the city, but also an important element of the environment, which affects on the quality of life and health of inhabitants.
Green plants purify the air pollution from exhaust gases, reduce temperature and absorbs noise. A large amount of soot, dust, high air temperature and low humidity, lack of oxygen are the consequences of cutting down trees in urban and rural areas, which leads to respiratory diseases, cardiovascular diseases, allergies. In addition, the destruction of green spaces leads to a rapid reduction of biodiversity because of the destruction of habitats10.
On September 11, 2019 the Cassation Administrative Court within the Supreme Court supported the position of the Court of First Instance and of the Court of Appeal and rejected the claim.
Despite the obvious violations by the defendant, courts of all instances rejected the claim. Nevertheless, this strategic case was successful: with the help of environmental activists EPL managed to save part of the park from cutting threes and building the road. Green zones protection and preservation was given special attention by the public and local authorities. By this case we increased people’s awareness about the value of green areas. Also local authorities took into account the need to preserve green areas and had increased the number of new plantings
1 http://www.reyestr.court.gov.ua/Review/46125209
2 http://www.reyestr.court.gov.ua/Review/53956723
3 http://www.reyestr.court.gov.ua/Review/64603336
4 http://www.reyestr.court.gov.ua/Review/65660007
5 http://www.reyestr.court.gov.ua/Review/45861815
6 http://www.reyestr.court.gov.ua/Review/57859104
7 http://www.reyestr.court.gov.ua/Review/61903676
8 http://www.reyestr.court.gov.ua/Review/63719272
9 http://www.reyestr.court.gov.ua/Review/59237484
10 http://epl.org.ua/wp-content/uploads/2016/04/UKR_1987_EPL_Parku_zamist_betony.pdf
