A lawsuit to appeal the decision of the village council on approval of town planning documentation (general plan of the village), which has the characteristics of a normative legal act, can be filed both by persons to whom this decision was applied and by persons who are the subject of legal relations in which it will be applied This was noted by the Cassation Administrative Court as part of the Supreme Court.
The plaintiff, who is the owner of a plot of land for commercial agricultural production, asked the court to declare it illegal and cancel the decision of the village council to approve the town planning documentation (general plan of the village).
The controversial decision of the defendant for the prospective needs of the settlement planned the placement of an additional cemetery on the territory where the land plot of the plaintiff and other persons is located. According to the plaintiff, this decision does not take into account the location of her plot of land in the protection zone of the territory on which the location of the new cemetery is planned, which will make it impossible to use this plot of land for its intended purpose.
The court of first instance, with the conclusion of which the appellate court agreed, refused to grant the claim. The courts proceeded from the fact that the plaintiff did not indicate exactly which of her rights, freedoms or interests were violated by the contested decision of the defendant, but only presented generalized arguments about the violation of her rights, freedoms or interests, without indicating any justification of the negative impact of the contested decision.
The administrative court of cassation as part of the Supreme Court annulled the decisions of the courts of previous instances and sent the case for a new consideration to the court of first instance.
The court drew attention to the fact that the disputed decision of the village council has the characteristics of a normative legal act.
Based on the analysis of the provisions of Articles 264–265 of the Civil Code of Ukraine, the Court indicated that the peculiarity of the proceedings in cases concerning the appeal of normative legal acts is that for such categories of disputes there is a practically unlimited circle of persons who can initiate the opening of the corresponding proceedings in the administrative court; an unlimited right of access to court to initiate such a dispute; additional guarantees of informing everyone about the start of court consideration of such a dispute; additional procedural guarantees for the parties provided in accordance with the provisions of the Civil Court of Ukraine in cases considered according to the rules of general legal proceedings; special powers of the court aimed at guaranteeing effective protection.
The right to initiate a case in court (locus standi) to declare a decision of a subject of authority as illegal and invalid, which has the characteristics of a normative legal act, is actually based on the specified status of the contested act. Refusal of access to the court of a person in such a category of disputes may lead to a situation in which the decision of the subjects of power, possessing the characteristics of a normative legal act, will remain outside the scope of judicial control.
The plaintiff must prove that he has a legitimate interest and is the victim of a violation of this interest by a subject of authority.
From the content of the statement of claim, it can be seen that, according to the plaintiff, the disputed decision of the village council did not take into account the location of the territory in the protection zone, on which the location of the new cemetery is planned, of her plot of land, which will make it impossible to use this plot of land for its intended purpose.
The court recognized such justification as compatible with the requirements of Art. 55 of the Constitution of Ukraine, Articles 2, 19 and 264 of the Civil Code of Ukraine regarding the plaintiff’s duty to prove the fact of violation of the disputed decision, action or inaction of the subject of the authority of his rights and legal interests.
Thus, the Supreme Court came to the conclusion that the courts of previous instances for violation of the requirements of Articles 2, 19 and 264 of the Civil Code of Ukraine did not check the arguments of the plaintiff presented in the lawsuit, in particular, regarding the failure to take into account during the development and approval of the General Plan of the village of Krasylivka, in which for the future needs of this of the settlement, the placement of an additional cemetery on the territory where the plaintiff’s land plot is located was planned, they were not provided with a proper legal assessment and did not establish on this basis the legality of the contested decision of the village council.
Resolution of the Supreme Court of September 26, 2023 in case No. 320/2015/22 (proceeding No. K/990/19209/23) – https://reyestr.court.gov.ua/Review/113738792 .
This and other legal positions of the Supreme Court can be found in the Database of legal positions of the Supreme Court – lpd.court.gov.ua .