The legal conclusions of the Supreme Court under Article 118 of the Land Code of Ukraine regarding the exercise of the right of citizens to free land plots privatization are promulgated.
Thus, when considering case No. 509/4156/15-a, the approach is changed regarding the possibility of appealing a refusal to a court. In the decision of March 14, 2017, the Supreme Court expressed the opinion that the failure of the authorized body to provide permission or a reasoned refusal to provide it within the prescribed period does not prevent the development of a land management project regarding the allocation of a land plot, since a person has the right to independently order the development of such a project.
As a result, later, in the decision of December 17, 2018, the Supreme Court (in the chamber for the protection of social rights) noted that the refusal of the authority to provide permission actually creates obstacles for further positive resolution of the issue in favor of the customer of the land management project despite the refusal to grant such a permission, and therefore may be subject to judicial review. If an interested party appeals with a lawsuit, the administrative court must provide a legal assessment of the actions of the subject of authority in making this or that decision and check its compliance with the criteria of legality, which are presented to decisions of the subjects of authority and enshrined in Article 2 of the Code of Administrative Procedure.
Regarding the legal consequences of the expiration of the monthly period for consideration of the application, the court determined that the person has the right (and not the obligation) to order the development of a land management project without authorization. However, this does not deprive him of the right to receive from the body a decision on granting permission (to refuse to do so) even after the expiration of a month’s term, as well as the right to judicial protection.
Regarding the legal nature of the letters on the elimination of deficiencies, the court noted the following: “Since the decision on granting or refusing to grant permission is drawn up by a decision of the council or by an order of the head of the State Geocadastre Administration, the letters testify to the inactivity of the relevant authorities. The way to protect against such inaction is to conclude a project development contract permits or appeals to the court about the obligation of the body to consider the petition and make a decision. ” Also, the Supreme Council advises to establish a deadline and judicial control over the execution of a court decision.
In addition, the SC explained that the inconsistency of the petition with the formal requirements is an independent basis for refusal. Considering the limited time period for consideration of the petition, as well as the provision of part 6 of the c. 118 LC, failure to comply with the requirements for the content of the petition, failure to provide properly decorated graphic materials or approval of the land user, if such a plot is not free, may be an independent basis for refusing permission. At the same time, refusing to grant permission, the authority must indicate all grounds for refusal.
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