Semi-decentralization in the sphere of architecture and construction control
On April 9, 2015 the Verhovna Rada of Ukraine has adopted long-expected Law “On amendments to certain legislative acts of Ukraine regarding semi-decentralization of powers in the sphere of architecture and construction control and improvement of city planning legislation”1 (hereinafter – the Law). The Law takes effect from September 1, 2015 excluding certain provisions. This Law is purposed to implement several ideas in the sphere of city planning reformation. The main purposes were to transfer construction control powers from the state to local level as well as to deprive the State Architecture and Construction Inspection of Ukraine (hereinafter – SACI) of its unlimited powers.
It’s not a secret that activity of SACI repeatedly became the subject of justified critique in the latest years. However, there are only a few reasons to be pleased in connection with adoption of this long-expected Law since its final version proposes ambiguous scheme of delegation of powers.
Reformation of functions in the sphere of architecture and construction control and supervision
The most important novelty is the decentralization of some of the SACI powers regarding execution of documents necessary to perform preparatory and construction works as well as commission authority, depending on the category of complexity of an object, namely:
|I, II, III categories (within the territory of villages and settlements)||executive bodies of village and settlement councils on state architecture and construction control issues;|
|I, II, III, IV categories (within the territory of cities)||executive bodies of city councils on state architecture and construction control issues;|
|I, II, III, IV categories (within the territory of Kiev and Sevastopol cities)||
structural departments of Kiev and Sevastopol city administrations on state architecture and construction control issues;
|I, II, III, IV, V categories (outside urban areas and on the territory of several administrative-territorial units); all objects of V category (within the territory of urban areas); IV category (within the territory of countryside and villages)||
central executive body that performs state policy on architecture and construction control and supervision (SACI) represented by chief inspectors in the Autonomous Republic of Crimea, regions, the cities of Kiev and Sevastopol.
Thus, we have partial delegation of powers to local self-government bodies and city state administrations. SACI (represented by newly appointed chief inspectors) preserved its supervisory powers over the most important construction objects within the territory of urban areas, all categories outside urban areas and on the territory of several administrative-territorial units.
New interpretation of state architecture and construction control and supervision
At the time of this Newsletter preparation (the majority of Law provisions are invalid and take effect on September 1, 2015) SACI exercises state architecture control and supervision2. Changes provide division of control functions between administrations/councils and SACI, and SACI additionally keeps considerably altered supervision function3.
When the Law takes effect SACI (represented by newly appointed chief inspectors) will have the power to exercise state architecture and construction supervision in the Autonomous Republic of Crimea, regions, the cities of Kiev and Sevastopol. SACI will be entitled to monitor the legality of controlling authorities’ actions4. Thus, the part of SACI’s powers will be granted to local authorities, but SACI will be authorized to perform control over legitimacy of their actions.
Within the supervisory powers the chief inspectors check legitimacy of decisions in the sphere of city planning and have the right to:
- visit construction sites and premises, examine documents and materials required to perform supervision;
- demand from state architecture and construction control authorities to perform checks;
- issue compulsory orders on elimination of violations in the sphere of city planning;
- bring officials to responsibility for committed offences;
- issue recommendations on dismissal of officials;
- send to the empowered body orders on depriving an officer of the right to perform certain actions;
- cancel or terminate the validity of decisions that violate requirements of city planning legislation, made by controlling authorities.
Thereupon, structural departments of administrations and executive bodies of councils are kept under control of SACI within the granted powers5.
Consequently, lawmakers granted to chief inspectors of SACI wide powers that will enable them to influence on local authorities upon execution of granted functions.
Looking ahead we shall note that the Law defined limited list of grounds for returning of declarations on the start of preparatory/construction works6 by substituting wording “submitted or filled with violation of stated requirements” that enabled SACI representatives to reject registration of declarations under controversial grounds.
However, while defining control functions of new SACI chief inspectors the lawmaker did not avoid application of ambiguous notion “decisions that violate provisions of city planning legislation”. At the same time, controlling officials bare responsibility in the form of a penalty amounts from 30 to 50 basic income amount (100–150 for repeated violation within the year) in case of registration of declaration “filled with violation of legislation provisions”.
Thus, limited list of grounds for rejection as opposed to undefined circumstances for bringing officials to responsibility theoretically can create the basis for pressure on local authorities by SACI chief inspectors.
Terms of delegation of powers to local authorities
Formation of executive bodies on architecture and construction control is carried out by councils and administrations “according to possibilities and needs of corresponding territories”. This rule can be interpreted as voluntary creation of such bodies.
In case when village, settlement or city councils do not create executive bodies on architecture and construction control, their functions shall be performed by SACI7.
Corresponding local authority addresses to SACI in order to form joint commission on transfer of documentation and resolving issues connected with formation and functioning of the state architecture and construction control authority. This authority starts to execute its powers on the next day after approval of joint commission act8. Therewith, the Law does not prescribe the procedure of joint commission operation and order of act approval.
Legislative changes in the city planning sphere
Besides decentralization of SACI powers the Law introduces the set of amendments as regards improvement of city planning legislation.
The parts of buildings will be considered as construction objects
Para. 5 part 1 Article 4 of the Law of Ukraine “On regulation of city planning activity” was complemented by the phrase “and parts”. It means that starting from September 1, 2015 the part of the building or structure will be also considered as the construction object. Theoretically, this novelty will allow executing permitting documents for construction works concerning only a certain part of building which, for example, is subject to reconstruction or restoration.
In this regard there is a question arising: can a certain part be deemed as a construction object? State Construction Norms No.2.2-3:2014 define the notion “part” 9 but does not specify characteristics of such object. The “detached part of house, building, or structure” as defined as an independent construction system detached by movement, expansion, or antiseismic (if necessary) joint, fire wall, or has autonomous engineer support facilities and completed operation cycle (for example, block-section, site etc.). Such definition can be considered as more applicable since the construction norms provide the possibility to reconstruct and rebuild only autonomous parts10.
In any case we hope that when the Law enters into force the exact requirements of the part of house, building, or structure will be established.
Certainty will help to avoid doubts during application of this novelty.
Free web-access to the register of authorized documents is being implemented
Part 3 Article 34 of the Law of Ukraine “On architecture activity” (with amendments) provides the free access to the register of:
- documents that authorize to perform preparatory and construction works;
- documents that certify commissioning;
- information concerning returning, rejection, cancellation, or withdrawal of the abovementioned documents.
Information will be posted on SACI official website.
Grounds for returning of declarations on the start of preparatory or construction works were concretized
Ambiguous formulation of the ground for returning the declaration on the start of preparatory or construction works is substituted by exact list of circumstances when the competent authority has right to return the declaration11.
Thus, starting from September 1, 2015 controlling body is entitled to return declaration on the start of preparatory works in case the following information is not displayed therein:
- as regards a customer, name or address of construction object;
- concerning a title of document on the land plot;
- regarding persons responsible for technical maintenance and project developers.
Declaration on the start of construction works can be returned in case it does not report the following information:
- as regards a customer, name or address of construction object;
- concerning a title document on the land plot;
- regarding city planning conditions and restrictions (if necessary);
- as regards the project designer, chief architect and/or chief engineer of the project, persons responsible for design and technical supervision.
The precise requirements for permitting documentation will reduce the possibility of rejection under controversial grounds that is widespread tendency now.
New grounds for cancellation of registered declarations and permissions were established
Article 39-1 of the Law of Ukraine “On regulation of city planning activity” that regulates order of errors correction in registered declarations and their cancellation in case unauthorized construction works detected. In addition the lawmaker established new ground allowing cancellation of declarations on the start of preparatory/construction works12.
In particular, declaration can be cancelled in case when during an inspection there are violations of planning documentation, urban conditions and restrictions detected, or when an object does not match the project documentation, construction norms, requirements of construction norms, standards and regulations, or in case of non-compliance with orders of construction control bodies. Similar ground is formulated regarding cancellation of permit13.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
1 The Law of Ukraine “On amendments to certain legislative acts of Ukraine regarding decentralization of powers in the sphere of architecture and construction control and improvement of city planning legislation” No. 320-VIII as of April 9, 2015.
2 Part 2 Article 10 of the Law of Ukraine “On architecture activity” (till September 1, 2015).
3 Part 3 Article 6 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
4 Part 2 Article 41 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
5 Part 5 Article 7 of the Law of Ukraine “On architecture activity” (as of September 1, 2015).
6 Articles 35-36 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
7 Part 2 Article 7 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
8 Para. 9.1 Section V “Closing provisions” of the Law of Ukraine “On regulation of architecture activity”.
9 Para. 3.25 State Construction Norms No.2.2-3:2014 “Composition and content of project documentation for construction”: a part means the part of house, building, or structure that is defined by project documentation for reconstruction, rebuild or technical re-equipment.
10 Para. 3.7 and 3.21 State Construction Norms 2.2-3:2014 “Composition and content of project documentation for construction”
11 Articles 35, 36 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
12 Part 9 Article 35 and part 7 Article 36 of the Law of Ukraine “On regulation of city planning activity” (as of September 1, 2015).
13 Subpara. v) para. 1 part 6 Article 37 of the Law of Ukraine “On regulation of city planning activity”.