The Supreme Court commented on the lack of authority of the executive body of local self-government to carry out architectural and construction control on construction sites belonging to the V category of complexity.
The Supreme Court, as a member of the panel of judges of the Administrative Court of Cassation, reviewed in the cassation procedure an administrative case based on a claim by a private joint-stock company (hereinafter also referred to as the company, the plaintiff) to the State Architectural and Building Control Inspection in Lviv (hereinafter referred to as the DABK Inspection, the defendant), the third person: State Architectural and Construction Inspection of Ukraine (hereinafter also DABI of Ukraine, third party), on recognition as illegal and cancellation of resolutions and prescription.
The essence of this case is that the DABK Inspection conducted an inspection of compliance with the requirements of the legislation in the field of urban planning, building regulations, and state standards at the construction site, which is the customer of the plaintiff, and found a number of violations recorded in the inspection report. Subsequently, the defendant issued an order to eliminate the violation of the requirements of urban planning legislation and a resolution to impose a fine on the plaintiff, which became the subject of appeal in this case.
In the substantiation of the claims, the company noted that the defendant, in accordance with clause 7 of the first part of Article 7 of the Law of Ukraine “On Regulation of Town Planning Activities”, did not have the right to exercise control in the field of town planning activities regarding the construction object of the V category of complexity, to which the construction object belongs , for which the control was carried out.
Courts of the first and appellate instances upheld the administrative claim. The courts proceeded from the fact that the defendant, as an executive body of the Lviv City Council, during the implementation of state architectural and construction control in the form of an unscheduled inspection of compliance with the requirements of legislation in the field of urban planning, building regulations, state standards and rules by the company regarding the construction of an object belonging to V category of complexity, acted outside the scope of his powers, provided for in Article 7 of the Law of Ukraine “On Regulation of Urban Development Activities”.
The Supreme Court agreed with the conclusions of the first and appellate courts, dismissed the cassation appeal of the DABK Inspection, and left the court decisions of the first and appellate courts unchanged.
The panel of judges of the Administrative Court of Cassation proceeded from the fact that in accordance with the first part of Article 7 of the Law of Ukraine “On Regulation of Town Planning Activities” (as amended at the time of the emergence of disputed legal relations), restrictions were established on the implementation by the executive bodies of village and settlement city councils of state architectural construction control over compliance with legislation in the field of urban planning activities, depending on the category of complexity of the construction object. In particular, such control over all objects of the V category of complexity within the population centers could be carried out exclusively by the central body of the executive power, which implements the state policy on the issues of state architectural and construction control and supervision.
Courts of the first and appellate instances found that, according to the conclusion drawn up by an expert of the Lviv Scientific Research Institute of Forensic Examinations based on the results of a forensic construction and technical examination, there is a possibility of more than 400 people staying at the facility at the same time, namely 408 people, and this indicates that it belongs to the highest – V category of complexity.
In addition, the courts of previous instances took into account the calculation of the class of consequences (responsibility) and categories of complexity of the construction object, made by the SE “Western Expert-Technical Center of Derzhhirpromnadzor” and approved by the customer of the construction and the director of the company that carries out the author’s supervision. This calculation reflects similar conclusions to those contained in the expert opinion
Taking into account the above, the Supreme Court agreed with the courts of previous instances that the defendant exceeded his authority during the inspection of the construction site, which according to the class of consequences belongs to the V category of complexity, but noted that the recognition of the results of the inspection as illegal in connection with the excess of authority The inspection of the DAC does not deprive the authorized body of the right to conduct state architectural and construction control at the specified object within the limits of the powers defined by the first part of Article 7 of the Law of Ukraine “On Regulation of Town Planning Activities” as amended.
On this basis, the Supreme Court formulated a legal conclusion that underestimation of the complexity category of the construction object poses a danger to the life and health of people, since the legislative requirements for design, conducting an examination of project documentation for the construction of objects belonging to the highest – V category of complexity, differ from those put forward for design objects belonging to lower categories. Failure to comply with such requirements can have negative consequences for the strength of the construction object, stability of the structure, fire safety and other characteristics of the construction object.
Resolution of the Supreme Court of November 24, 2021 in the case No. 464/8031/16-a.