The Supreme Court confirms the illegality of the establishment of water protection zones and coastal protection strips on part of the territory of the Venetian and Trukhaniv islands, as the entire territory of these islands has such status

The regime of limited economic activity, which is characteristic of the coastal protection zones, applies to the entire territory of the island, therefore the establishment of the boundaries of the coastal protection zone on a small part of the islands contradicts Art. 88 of the Water Code of Ukraine.

This is stated in the resolution of the Commercial Cassation Court of the Supreme Court, issued in the case of the Deputy Prosecutor General on behalf of the State, represented by the Kyiv City Council, to invalidate the contract for the procurement of services for the development of land management projects for the organisation and establishment of water protection zones on the territory of the Venetian and Trukhaniv islands.

The prosecutor substantiated the claim by arguing that the provisions of the contract, which provide for the preparation of land management projects to establish water protection zones with a less stringent use regime than that applicable to the islands, violate the provisions of land and water legislation.

The first instance and appellate courts upheld the prosecutor's claims insofar as they related to the territory of the islands.

As a result of the cassation hearing, the CommCC of the SC agreed with the conclusions of the previous instances that it was unlawful to establish water protection zones on the islands, as they have a narrower list of prohibitions of use than the coastal protection zone, and that there were no grounds for establishing the boundaries of the coastal protection zone on the territory of the islands, as the regime of limited economic activity, which is typical of coastal protection zones, applies to the entire territory of the islands.

The CommCC of the SC drew attention to the fact that according to Art. 87 of the Water Code of Ukraine, there are only three prohibitions on permissible activities on the territory of water protection zones (it is impossible to use persistent and potent pesticides, arrange cemeteries, cattle cemeteries, landfills, filtration fields and discharge untreated wastewater using the terrain), while for coastal protection strips, Article 89 of the Water Code of Ukraine establishes seven such prohibitions (it is prohibited to build any structures, including recreation centres, summer cottages, garages and car parks, plough land, apply fertilisers and pesticides, arrange summer camps for livestock, garbage dumps, manure storage facilities, etc., wash and maintain equipment, and burn dry vegetation).

At the same time, pursuant to part 17 of Article 88 of the Water Code of Ukraine, the islands are subject to the regime of limited economic activity provided for by the coastal protection zones.

Thus, the courts of previous instances reasonably concluded that, as a result of the agreement disputed by the prosecutor, on the territory of the Venetian and Trukhaniv islands, which is subject to the use regime provided for the coastal protection zones, water protection zones have been established, which are an area with a less strict regime of activity restrictions compared to the coastal protection zone.

At the same time, the objects for which the terms of the agreement provide for the development of land management projects to establish the boundaries of water protection zones and coastal protection strips include several beaches located on islands and occupying only a certain (relatively small) part of the territory of these islands.

Therefore, the CommCC of the SC noted that since, according to part 17 of Article 88 of the Water Code of Ukraine, the regime of limited economic activity provided for coastal protection strips is established on the entire territory of such an entity as an island, the establishment of the external boundaries of the coastal protection strip on the islands does not comply with the provisions of this Code.

Resolution of the CommCC of the Supreme Court of 25 June 2024 in case No. 910/71/23 - https://reyestr.court.gov.ua/Review/120232058.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.