The Supreme Court, as part of the panel of judges of the Cassation Administrative Court, considered the issue of the obligation of the state architectural and construction control body to apply to the court with a claim for the demolition of an unauthorizedly constructed facility
The Supreme Court, composed of a panel of judges of the Administrative Court of Cassation, in its Resolution of December 9, 2019 in case No. 826/22842/15 regarding the obligation of the state architectural and construction control body to file a lawsuit with the court for the demolition of an illegally constructed facility, came to the following conclusions:
The state architectural and construction control body, in the event of the occurrence of the conditions stipulated by Article 38 of the Law of Ukraine “On Regulation of Urban Planning Activities”, is obliged to apply to the court with a claim for the demolition of an unauthorizedly constructed facility and compensation for the costs associated with such demolition.
Applying to the court with a claim in this case is a way of exercising authority, and not a way of protecting the subjective rights of the state architectural and construction control body.
Thus, the courts of previous instances incorrectly qualified the authority of the state architectural and construction control body to file a claim for the demolition of an unauthorizedly constructed facility as an authority that may be exercised (or not exercised) at the sole discretion of this body (discretionary).
Applying to court with a claim for the demolition of unauthorized construction is a way to protect public interests in the field of urban development, and not the rights and legitimate interests of the State Architectural and Construction Inspectorate. The protection of public interests in the field of urban development cannot be made dependent on the will of the State Architectural and Construction Inspectorate.
In the event of failure by the state architectural and construction control body to fulfill its powers stipulated by law, a person who believes that such inaction violates his rights or legitimate interests has the right to file a corresponding claim with the court.
Author: Yuriy Brykaylo, DREAMDIM
