The Constitutional Court has balanced the process of approving construction near power lines

Pepeliaev Group advises that the Russian Constitutional Court has adopted a Resolution[1] aimed at eliminating the imbalance of private and public interests in the field of construction in protected areas of electric grid facilities.

In the case under consideration, the electric grid company refused to agree to the owner of the land plot siting a house in the security zone of the electric grid facility. The Russian Constitutional Court issued a reminder that an arbitrary refusal to approve construction is not allowed, excluded the requirement for developers to obtain such approval, and decided to review the claimant's case.

The owner's dispute with the local administration

The owner of the land plot, which has the type of permitted use "for gardening" and the main part of which is located within the boundaries of the security zone of the electricity line, notified the local administration of the planned construction of a garden house, but the local administration sent him a notification in response that construction was impossible in the absence of the consent of the owner of the electricity line. In response to an communication to a branch of Moscow United Electric Grid Company PJSC, the owner was refused approval of the planned construction.

The owner unsuccessfully appealed the reverse notification of the local administration in the courts of general jurisdiction, after which the owner appealed to the Russian Constitutional Court.

The dispute arose around conflicting provisions of regulations, namely:

• clause 10(a) of the Rules, approved by Resolution No. 160 of the Russian Government "On the procedure for establishing security zones of electric grid facilities and special conditions for the use of land plots located within the boundaries of such zones" dated 24 February 2009 (the “Rules”), according to which the owner was obliged to apply to the grid company for approval of construction in protected areas of electric grid facilities; 

• article 106(3) of the Russian Land Code (the “Land Code”), according to which it is not allowed to require coordination of the placement of buildings, structures or other activities within the boundaries of a zone with special conditions for the use of the territory[2].

Position of the Russian Constitutional Court

The resolution of the Constitutional Court increases the legal protection of the right holder of a land plot located in the security zone of electric grid facilities: now the body authorised to issue permits and/or notifications about construction, and not the developer, will have to determine whether security zones of electric grid facilities are present (regardless of whether information about them has been entered in the Unified State Register of Real Estate) and, if available, apply for approval to the grid company.

The Constitutional Court also pointed out that electric grid companies and courts do not have the right to formally refuse to approve construction, but should indicate the specific risk prevented by such a refusal for electric grid facilities, and for the life, health, or property of legal entities or individuals.

What to think about and what to do

Currently, the legislature is seeking change the regulation of areas to be used under special conditions (abbreviated in Russian as ZOUIT) in such a way that information about all ZOUIT is in the Unified State Register of Real Estate, but this has not yet been done. The absence of a single systematized source of information about ZOUIT entails increased risks for the right holders of land plots, since the restrictions associated with ZOUIT apply regardless of whether information about them has been entered in the Unified State Register of Real Estate.

The Russian Constitutional Court, having imposed the obligation to interact with the grid company on the body authorised to issue permits and/or notifications about construction, actually transferred to it the obligation to establish the fact of whether a land plot in the protected areas of the electric grid facilities.

Despite this, we recommend conducting a detailed analysis of the potential limitations of the land plot being considered for construction in order to avoid challenges to construction permits issued in the future.

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[1] Resolution No. 31-P of the Russian Constitutional Court dated 13 October 2022.

[2] Security zones of electric grid facilities are a type of zones with special conditions for the use of ta territory (abbreviated in Russian as ZOUIT).