Construction reform - a revolution in words

24.11.2010 16:26
Recently Minregionstroy, professional associations and committees engaged in the development of a framework law that is based on the transition will be laid to a declarative principle of obtaining building rights for certain categories of construction projects. 11 October 2010, Prime Minister of Ukraine NJ Azarov approved thesis and the concept of reforming the construction industry.

November 15, 2010 Prime Minister in a concept called "Regulation of urban development" said that in total the procedure for obtaining land ownership or use to build, as well as the procedure for obtaining all permits required for construction, will not be more than 110 days. The procedure for making the facility into operation will take no longer than 10 days.

However, as noted by the partner Vasil Kisil & Partners, Head of Real Estate and Construction Oleg Aleshin, in accordance with the bill specified time conditionally met only with respect to facilities not included in the list of exceptions, are not covered by a simplified licensing procedure. Although, if we consider that the principle of one-stop shop for technical specifications (TU) has not been implemented, the time for obtaining technical conditions may take up to 50 days, given that an application for a TOU will need to apply separately to each service. It also confirms the currently available practices, according to which there are numerous delays in obtaining specifications of each individual service.

Given the fact that the number of objects for which is not a simplified licensing procedures, according to the bill is quite broad (and to such objects, for example, includes all items IV-V categories of difficulty), a simplified permitting system is not subject to virtually no industrial object, even those who are not particularly dangerous and have a fairly simple system of production, as well as residential buildings with a planned height of 10 floors above (in accordance with the provisions of "DBN Ukraine. Design. The composition, procedure development, coordination and approval of project documentation for the construction of DBN A.2.2-3-2004 "approved by the State Committee for Construction and Architecture, from 20.01.2004, N 8). For objects that are not subject to a simplified licensing system, the deadline will be substantially increased.

The lawyer said Vasil Kisil & Partners Natalia Dotsenko-Belous, thanks to the reform of the construction going on legitimizing the possibility of taking into service of non-existent construction projects. Dotsenko-Belous clarified: "Our study of the European practice of building capital facilities do not provide this level of suspension of the state of the processes that may carry a potential threat to both property and life and health of people."

Among the main problematic aspects of the bill lawyers identify the following:

• The bill does not hold forth the conditions and approval of master plans.
• The principle of "acquiescence" is not disclosed and are not resolved.
• The technical specifications withdrawn status permits. However, the loss of the status of the certificate of permission deprives the customer's ability to protect their human resources, certain provisions of the Law of Ukraine "On licensing system in the sphere of economic activity (in particular the principle of" tacit consent ", etc.).

• retained without proper consideration and resolution of legal conflict regarding compensation to the customer the cost of construction of engineering infrastructure.

• Examination of the project required not only for the major hazard. The stated concept contains several provisions regarding the examination of project documentation, including, inter alia, that the examination is mandatory only for major hazard, that the examination be a constructive and geological parts. Also addressed the issue of evacuation. However, in the analyzed the bill, none of these provisions are not spelled out. Settlement of the issue and the need to order the examination is within the competence of the Cabinet of Ministers of Ukraine, through appropriate regulations.

• Vague and generalized position for a permit pursuant to construction work create opportunities and preconditions for numerous manipulations.

• The customer is left without land rights. According to the definition of "customer" in the bill, a person should not have rights to the land in order to manifest the intention to carry out construction and obtain permits for construction. These changes may lead to the fact that the right to obtain permits will be sold by persons under the treaties have some features of the customer of construction from land. Accordingly, these individuals will be able to attract funds from third parties during construction, to dispose of the objects under construction. However, in the event of early termination of contracts between building owners and land users in fact have a situation where the customer from licensing documents will not have access to an object, can not meet its obligations to attract investors, as well as continue to receive permits. Implementation of these norms will lead to mislead investors interested construction projects that will focus on the person received permits. These documents, in turn, will actually have on the legal effect given the lack of a customer's rights to land.

• Availability of standards that allow avoiding the tender for the purchase of public funds, will be achieved through the budget spent by the investor compensation funds.

• Deprivation of territorial communities, which act on behalf of local government, constitutional rights to property owned by territorial communities, villages, cities, districts (towns), as well as the objects of their common property under management of district and regional Boards

• No legal definition of categorization of objects construction. Simplification of licensing procedures, in particular the abolition of compulsory comprehensive public review of project documents, mainly depends on the category of the construction. In the absence of legislative classification categories of construction projects creates the preconditions for the manipulation of these Bye-legal concepts that can lead to loss of effect declared by simplifying licensing procedures.

• unjustified and unprecedented expansion of powers of the State Architectural and Construction Inspection, its regional offices, which will lead to interference in economic activity building owners

• Demolition of arbitrarily constructed facilities by order of the State Architectural and Construction Inspection and its territorial bodies.

• Introduction of the Institute self-regulatory organizations such as the barrier to entering the construction market of new participants. According to amendments proposed to the Ukrainian Law "On Architectural Activity", is planned to implement mandatory professional certification of manufacturers of works (services) related to the creation of objects of architecture, Feasibility self-regulatory organizations. At the same time, provides for the licensing of these activities. Accordingly, this means that the bill creates a system of double checking vendors for work (services) related to the creation of objects of architecture.

• The principle of total built-up regardless of the purpose of land.

• Implementation of the indefinite right to a performance of construction work that will lead to impunity for the customer, suspending construction for an indefinite period of time.

• Abolition of examination of project documentation and implementation of declarative principle eligible for execution of construction work unhindered creates prerequisites for the start of construction even in the absence of design documentation stage of the Project.

• The legitimization possibility of taking into service of non-existent construction projects. Having the opportunity to acceptance into service of non-existent construction projects with a further of their state registration as a real estate due to the introduction of a declaration of the principle of operation of adoption in most objects, when the inspection of state architectural-building control loses the right to spot check the status of constructed facilities.
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