The Supreme Court overturns Lviv City Council's decision to approve urban planning conditions and restrictions for the construction of a hotel on Mickiewicz Square in Lviv

A World Heritage Site inscribed on the UNESCO World Heritage List, without any additional reservations or requirements for its inclusion in the State Register of Immovable (Tangible) Landmarks of Ukraine, is a cultural heritage site and a cultural heritage monument of national importance in the sense of the Law of Ukraine "On Protection of Cultural Heritage", and therefore the lands on which such a site is located are legally classified as lands of historical and cultural significance, regardless of the designated purpose of these lands established by decisions of the municipal authorities, urban planning documents.

When considering applications and accompanying documents for the imposition of urban planning conditions and restrictions on such land, the body authorised by law to issue them is required to verify that the intended development is in accordance with the intended purpose, taking into account the legal regime for the use of such land, including the type of use established by law.

This was the conclusion reached by the Administrative Cassation Court of the Supreme Court in the case concerning the annulment of the decision of the Executive Committee of the Lviv City Council on the approval of urban planning conditions and restrictions on the development of a plot of land for the construction of a hotel on Mickiewicz Square in Lviv.

In support of the claim, it was stated that Mickiewicz Square is located in the historical area of Lviv and on the territory of the UNESCO World Heritage Site, and that the address is a cultural monument of national importance. The location of the hotel does not correspond to the category of land for historical and cultural purposes.

Considering this case in cassation, the Supreme Court concluded that the Law of Ukraine "On Protection of Cultural Heritage" directly refers a World Heritage Site to a cultural heritage site with the status of a cultural heritage site of national importance, without any reservations and without the need for additional registration of such a site in the State Register of Immovable Landmarks of Ukraine.

The Supreme Court found that the land in question, which had been allocated for development and for which urban planning conditions and restrictions had been approved, contained the national cultural heritage site "Lviv - Historic Centre Ensemble", which is also a World Heritage Site and is included in the UNESCO World Heritage List. Therefore, by law, the disputed land belongs to the category of land for historical and cultural purposes, and this designation can only be changed with the consent of the Cabinet of Ministers of Ukraine.

When considering applications and accompanying documents for the imposition of urban planning conditions and restrictions on land plots belonging to lands of historical and cultural designation, the body authorised by law to issue them (make decisions on their approval) is obliged to verify that the intention of development is consistent with such designation, taking into account the regime of use of these lands established by law (legislation), including the type of use determined by law.

When imposing urban planning conditions and restrictions on land plots on which a World Heritage Site inscribed on the UNESCO World Heritage List is located, the said authority is obliged to take into account the requirements of special legislation regulating the specificities of the protection of World Heritage Sites, in particular to check whether the intention of their development is in accordance with the management plan of the World Heritage Site, which should contain, among other things, a description of conditions, restrictions and prohibitions in relation to the World Heritage Site, its territory and buffer zone.

The case established that the Executive Committee of the Lviv City Council, when adopting the disputed decision, did not take into account the actual legal status of the World Heritage Site "Lviv - Historic Centre Ensemble", which is inscribed on the UNESCO World Heritage List and is a cultural heritage monument of national importance, did not take into account the legal category of the land plot located under such a cultural heritage site, the type of its use permitted by the legislation in force at the time of the disputed legal relations.

Therefore, the panel of judges concluded that the urban planning conditions and restrictions, as well as the decision to approve them, were unlawful and violated not only the rights of the plaintiffs, but also the public interest in cultural heritage, in accordance with its importance to society.

The Resolution of the Supreme Court of 6 December 2023 in case no. 380/4498/20 - https://reyestr.court.gov.ua/Review/115484534.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.