On July 3, 2023, the Supreme Court issued a ruling regarding legality of the approval of the detailed plan “Yaroslavna” in the Shchaslyvtseve village council of the Henichesk district of the Kherson region (case No. 540/86/20).
The essence of the case was that the detailed plan of a part of the territory of the Shchaslyvtseve village council outside the village Shchaslyvtseve was approved by order of the head of the Henichesk district state administration of the Kherson region No. 413 dated September 30, 2016. The plan envisaged individual cottage construction in the first line of development, north of the “Yaroslavna” recreation center owned by JSC “Kakhovka Electric Welding Equipment Production Facility with an area of 6.995 hectares.
In response to an information request dated November 11, 2019, PERSON_1 received a copy of the order of the head of the district state administration dated September 30, 2016 No. 413 “On approval of a detailed plan of a part of the territory of the Shchaslyvtseve village council outside the village of Shchaslyvtseve” and a copy of the explanatory note to the draft order of the head of the district state administration “On approval of a detailed plan of a part of the territory of the Shchaslyvtseve village council outside the village of Shchaslyvtseve“.
The requester was informed that in this case the conclusion of the legal expertise was not prepared.
The court of the first instance did not recognize the plaintiff’s right to legal protection based on the “absence of violation of the law”, while the court of appeal focused on the issues of compliance or non-compliance with the procedure of adopting the challenged ordrinance.
In the cassation appeal, the plaintiff emphasized that he did not challenge the ordinance on the grounds of non-compliance with the procedure of its adoption, and the grounds for appealing to the court are precisely the fact that the land plot covered by the detailed plan approved by the challenged ordinance is located within the coastal protection strip, on which construction is prohibited in accordance with the current legislation.
During the resolution of this case, the Supreme Court formulated a number of important legal positions. In particular, it is worth paying attention to the following conclusions of the Supreme Court:
“According to the Aarhus Convention, members of the public have the right to challenge violations of national environmental legislation, no matter whether these are violations of the rights to information and public participation in the decision-making guaranteed by the Aarhus Convention or not [(according to the Implementation Guide of the Aarhus Convention (UN, 2000)]). The Aarhus Convention ensures access to justice both on the basis of its own provisions and in order to ensure compliance with national environmental legislation.”
“Taking into account the fact that the right to protect the violated constitutional right to a safe environment belongs to everyone and can be exercised by citizens personally, the panel of judges agrees with the conclusion of the appellate court regarding the fact that PERSON_1 has the right to apply to the court with a claim for protection of his environmental rights and interests, and therefore rejects statement of a third party on absence of such a right.”
“In the coastal protective strip along seas, bays and estuaries and on the islands in the internal sea waters, it is allowed to perform construction of sanatoriums and other medical and health facilities with mandatory centralized water supply and sewerage.”
“Courts of the first and appellate instances had to establish whether the territory, in respect of which the disputed detailed plan was adopted, belongs to the coastal protection zone and, accordingly, whether construction can be carried out on this territory. Therefore, the task of the courts of the previous instances was to evaluate the arguments of the plaintiff, to check the circumstances that are decisive in the decision of this case.”
“However, the court of the first instance limited itself to conclusions that the plaintiff does not have the right to appeal to the court (no violation of the right). Although the appellate court recognized the right to litigate, in its decision it evaluated the procedure for adopting the challenged ordinance and, in addition, noted that the fact that the land plot is classified as recreational land is also confirmed by the Planning Scheme for the territory of the Black and Azov Seas, approved by the decision of the Kherson Regional Council dated 03.03.2017 No. 378 “On Approval of the Planning Scheme for the Territory of the Black and Azov Seas within the Kherson region”. From the above, it can be seen that the detailed plan only clarifies that the specified recreational land belongs to the category of land for individual summer house construction, which does not contradict the provisions of the Land Code of Ukraine.
Ultimately, the Supreme Court ruled to partially satisfy the cassation appeal of PERSON_1. The decision of the Kherson District Administrative Court dated January 30, 2020 and the decision of the Fifth Administrative Court of Appeal dated June 10, 2020 in case No. 540/86/20 shall be annulled, and case No. 540/86/20 shall be remanded to the court of the first instance.
This decision of the Supreme Court of Ukraine is an important precedent for jurisprudence construction activities in coastal zones and their preservation. The decision on case No. 540/86/20 once again confirms the public’s right to effective protection of the environment and the opportunity to influence decision-making regarding preservation of environmentally vulnerable territories. Despite the fact that the cassation appeal of PERSON_1 was satisfied only partially, the reopening of the case to the court of the first instance creates an opportunity for a detailed study of all factors related to construction activities, while preserving the environmental balance in this region. It is necessary to ensure a balance between development needs and protection of natural resources to ensure sustainable development of the Kherson region and the entire country.
This resolution and other current jurisprudence of national courts in environmental matters can be found in the Register of Environmental Court Decisions at the following link: http://caselawepl.org.ua.
