The actions of the subject of authority regarding the issuance of a permit to a third party for the performance of construction works should be appealed in the manner of civil court proceedings

On October 20, 2021, the Supreme Court, as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation, in case No. 522/2429/21, annulled the decision of the courts that refused to open proceedings on a claim that they considered appropriate for consideration in an administrative court.

The person appealed to the court with a claim against the State Architectural and Construction Control Office of the City Council, the Department of Architecture and Urban Planning of the City Council, the third party – LLC, for the recognition of actions as illegal, the cancellation of the permit, the obligation to perform certain actions, considering that the officials of the defendants, when making a decision to issue contested permits, they acted illegally.
The district court, by a decision left unchanged by the appellate court, refused to open the proceedings, based on the fact that the plaintiff based the claim on the illegal actions of the defendants, as subjects of authority, and not on the actions of the developer regarding the construction of the object, which was manifested in the violation, on the opinion of the plaintiff, her rights and interests, therefore administrative legal relations arose between the parties, since in these legal relations the defendants exercise their functions in the field of management.
After considering the plaintiff's cassation appeal, the Supreme Court recalled that in the decision of January 16, 2019 in case No. 815/1121/17, the Grand Chamber of the Supreme Court indicated that when determining the substantive jurisdiction of the case, the court should proceed from the essence of the right/interest, which is protected the subject of public law applies to the court, and the purpose of filing a lawsuit, since it is precisely such criteria for distinguishing the belonging of a dispute to one or another jurisdiction that make it possible to protect the violated right of the plaintiff most effectively, rather than distinguishing jurisdiction solely on the basis of the participation in the dispute of a subject of power .
In this case, the plaintiff substantiated her claims by the fact that the controversial construction violated her rights as a resident of the building that was built nearby. She believed that illegal construction could negatively affect the condition of the house in which she lives.
In the resolution of the Grand Chamber of the Supreme Court dated August 22, 2018 in case No. 815/1568/16 , it is stated that the person actually disputes the permit (action), which is a legal act of individual action. Such a legal act creates rights and obligations only for those subjects (or a certain circle of subjects defined by this act) to whom it is addressed. Thus, the lack of rights or obligations for anyone (except the owner of real estate), including the plaintiff, in connection with the contested decision (action) does not give rise to the latter's right to appeal this lawsuit in the order of administrative proceedings .
At the same time, the decision of the Supreme Court dated February 17, 2021 in case No. 420/288/20 states that if a person sees a violation of his rights in the consequences caused by a decision, action or inaction of a subject of authority, which he considers to be unlawful , and these consequences led to the emergence, change or termination of civil legal relations, are of a property nature or are related to the realization by a person of property rights or personal non-property interests, then recognizing such decisions of the subject of power as illegal (unlawful) is a way of protecting the civil rights of this persons
In this case, the claims for the cancellation of the third party's right to perform construction works and the execution of land and installation works are derivative and can be considered when the civil court decides on the legality of construction works by third parties and the existence of violations of the plaintiff's rights in this regard.
The Supreme Court drew attention to the fact that the protection of violated, unrecognized or disputed rights, freedoms or interests arising from civil, residential relations is subject to consideration in the procedure of civil proceedings (Part 1, Article 19 of the Code of Civil Procedure of Ukraine).
The above is consistent with the legal position of the Supreme Court, set forth in the resolution dated May 20, 2021 in case No. 420/3168/20 .
Therefore, the Supreme Court annulled the adopted court decisions, and referred the case to the court of first instance for a new consideration.
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