The Administrative Cassation Court of the Supreme Court orders State Inspectorate for Architecture and Urban Development to take legal action against developer in Kyiv region

July 21, 2023, 12:28

The Administrative Cassation Court within the Supreme Court ordered the State Inspectorate for Architecture and Urban Development of Ukraine ("SIAUD") to apply to the court to demolish an unauthorised building in Obukhiv, Kyiv region.

This is stated in the decision of the Administrative Cassation Court of the Supreme Court on a case in which the plaintiff filed a lawsuit against the State Architectural and Construction Inspectorate of Ukraine (SACI - at the time the lawsuit was filed, SACI was still in operation. On 15 September 2021, SIAUD started operating instead) to demolish a house built on a plot of land next to the plaintiff's house. According to the plaintiff, in 2014, the Inspectorate of State Architectural and Construction Control in the Kyiv region found that a pit was being dug at the development site for the construction of a multi-storey building without the relevant documents. The owner of the land was then fined UAH 8,500 for an administrative offence and ordered to stop construction until the violations were rectified. It later emerged that the work had not been stopped.

In August 2015, the Department of State Architectural and Construction Control of the Kyiv region registered a declaration of commencement of construction works and then a declaration of readiness for operation, which were cancelled after the plaintiff filed a lawsuit.

The plaintiff claimed that the owner of a neighbouring plot of land had converted a residential building into a six-storey block of flats without permission, in breach of fire safety distances to other residential buildings, including the one in which the plaintiff lived. Meanwhile, the Inspectorate of State Architectural and Construction Control in the Kyiv region deliberately failed to apply to the court and, according to the plaintiff, allowed the developer to continue building illegally.

Representatives of the SIAUD argued in court that it was impossible to check whether the developer was complying with the requirements of the order because he was evading them, as recorded in their appeals to the Obukhiv district office of the Main Directorate of the Ministry of Internal Affairs in the Kyiv region. They asked the police to facilitate the inspection of the developer's compliance with the requirements of the orders. But law enforcement officials did not respond to their requests. Therefore, according to the SIAUD, all the preconditions for filing a lawsuit were not met.

The courts of first and appellate instances dismissed the action on the grounds that no act of verification of compliance with the order had been issued, i.e. the fact of failure to comply with the order within the statutory period had not been established.

The Administrative Cassation Court of the Supreme Court disagreed with these rulings, stating that the objective circumstances of the case showed that the SIAUD had been aware of the unauthorised construction since the pit was being dug, but had not taken any measures to stop it and demolish it. According to the Court, the Inspectorate had in fact withdrawn from its duties, hiding behind a formal reason - the lack of assistance from law enforcement agencies in finding the construction ordering party.

The Court also noted that the fact of unlawful construction may also be discovered during the inspections appointed and carried out in accordance with the procedure established by law, but Article 38 of the Law of Ukraine "On Regulation of Urban Development" does not specify how the state architectural and construction supervising body should discover the fact of unlawful construction and does not require such inspections as a prerequisite for exercising the powers defined in this Article and demolishing unlawful objects.

According to the Supreme Court, the main task of the SIAUD is to stop unauthorised construction in time and to prevent the negative consequences of illegal construction. Therefore, the Supreme Court declared the SIAUD's inaction unlawful and ordered it to file a lawsuit against the developer.

Resolution of the Supreme Court of 14 June 2023 in case No. 826/22842/15 - https://reyestr.court.gov.ua/Review/111663091.

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/login.