Clone of a Scandalous ‘Reform’. What Did Kubrakov Slip Under Our Christmas Tree?
Until December 29, the Cabinet of Ministers is awaiting proposals for the scandalous draft resolution on urban planning rules. This document was almost adopted just a day before Ukraine was supposed to receive candidate status for EU accession. If that had happened, opponents of our European integration would have gained an additional argument to block it. Any accusations of opaque reconstruction rules could negatively impact the volume of assistance.
The results of the resolution analysis indicate that the current chaos in urban planning that the government officials have decided to transform into… complete chaos. This initiative is even worse than the parliamentary bill 5655 by MP Olena Shuliak (“Servant of the People”), which the president has not signed for over a year.
What are the risks?
Lobbyists of the “reform” understood that the president will not sign it. Volodymyr Zelensky emphasized that this is his position. Therefore, the Ministry of Reintegration decided to legalize the necessary rules through an experimental procedure in the government. Then the president’s signature will not be needed. But there is a serious problem: the government is a branch of power that must do everything to implement policies developed by the parliament. Even in an experimental mode, the Cabinet cannot become a legislative branch and create urban planning rules.
The text of the resolution contradicts a number of existing laws – by adopting it, the government will block their implementation. Then, in courts, decisions will be in favor of developers (Article 19 of the Constitution, Law “On the Basic Principles of State Supervision (Control) in the Field of Economic Activity,” and Part 2 of Article 15 of the Law “On Administrative Procedure”).
Who benefits from the new rules?
Understandably, when the government adopts certain rules, someone wins or loses. Kubrakov signed under the fact that the government is creating a policy that does not affect anything. Then why such a policy at all, and does the deputy prime minister who signs the text realize it?
In fact, there is an impact, as well as beneficiaries of this policy:
- Large and small developers;
- Black architects;
- Local urban planning authorities;
- Those who will exercise “private control.”
Of course, the key jackpot awaits developers who build large residential complexes and business centers – objects of mass gathering of people (this is the highest responsibility class in the classifier – CC3). Such developers can ignore inspectors at the local level. They will be controlled only by the State Inspectorate of Architecture and Urban Planning. It will control, but not check, because the government resolution already prohibits them from doing so. Smaller developers will be less fortunate, but this “experiment” still gives them a serious field for maneuvering.
In addition to the jackpot for developers, there will also be a gold rush for the chosen ones – private “state architectural and construction control.” Everything is simple here: only laws determine the principles of civil liability; actions that are crimes, administrative or disciplinary offenses, and responsibility for them (paragraph 22 of Part 1 of Article 92 of the Constitution).
And there is no private “state architectural control” in the laws of Ukraine. Therefore, such “private” individuals can cover illegal construction and commission anything without any responsibility.
Furthermore, the head of the “Servant of the People” party, Olena Shuliak, has repeatedly emphasized that local authorities abuse and play along with developers, and her initiative supposedly aims to combat this shameful phenomenon.
So, the government resolution gives local officials the coveted right to issue urban planning conditions and restrictions to their favored developers with impunity, citing this “experiment” by the Cabinet of Ministers, while denying others with reference to the law. This very deliberately designed “experiment” is already effectively on the government’s agenda.
Apart from officials, “black” architects will also rejoice at the experiment. If currently a developer might seek a corrupt official to legitimize everything, now it will be enough to find an unscrupulous architect.
The National Union of Architects of Ukraine and the “Together Against Corruption” initiative proposed to the lobbyists of the urban planning “reform” to establish clear criteria for violations and to entrust a self-governing organization with imposing appropriate sanctions on architects, thus applying the principle of self-cleansing of the community. But all these proposals were rejected.
As with the controversial bill 5655, the government resolution envisages a manual review of project documentation, so what an architect draws, an expert will either allow or block. This means that what Deputy Prime Ministers Oleksandr Kubrakov and Mykhailo Fedorov have been communicating for over a year as an achievement of digitalization – “a computer does not take bribes” – does not correspond to reality.
Such black architects or experts will simply be impossible to check for violations. Why? Because the experimental resolution contradicts the norms of the current Law of Ukraine “On Urban Planning Regulation”. It provides for inspections only when state architectural and construction control is carried out. But the order of this control is approved by… the Cabinet of Ministers, which thanks to the “experiment” plans to approve that nothing can be checked in this case. However, the government agrees to the inspection in accordance with the state architectural and building supervision. But this contradicts the law. And therefore… checks are impossible.
As a result – illegal construction will be maximized, as architects and experts will be able to satisfy any developer’s desire with impunity.
Who loses from the new rules?
Certainly, there will be not only those who benefit from such an experiment. The definite losers are:
- citizens;
- the state, due to a poor investment climate;
- some private and honest developers;
- honest architects;
- The Ministry of Infrastructure.
All that remains for the citizens is to rely on themselves. There will be no control bodies, they will have to live near excavations and guard fences. And this means physical clashes and confrontations.
Representative of the developer attacks Ihor Dobrovolsky from the Freedom Legion, who defends the green zone.
Citizens of Ukraine and international partners are interested in rebuilding the country under transparent and understandable rules. However, what the government proposes undermines the investment climate. Who would want to invest in a country where the state ignores the requirements of the Constitution?
The draft resolution provides for automatic registration of rights or its manual implementation by notaries or state registrars. That is, all permits for construction obtained after the launch of the “experimental project” will be illegal, as well as all work within the reconstruction.
What investment climate are we talking about if at any moment anyone can file a well-founded lawsuit to court to cancel a permit obtained with violations of the law?
And such a policy will affect not only investors. Among developers, as well as among judges, deputies, prosecutors, there are honest people. So, they will also have problems. Only according to the law, they could get a permit for free, and putting it into operation officially cost about five subsistence minimums, which is a purely symbolic amount for large and small construction (SS3 and SS2 classes).
If the government resolution is adopted, developers will have to pay significantly more for project expertise because experts will have to check issues for money that were previously investigated free of charge by inspectors of the State Inspection of Architecture and Urban Planning. And experts can easily twist the developers’ arm because, due to the inconsistency of the legislation and this “experimental” resolution, no one will punish them.
And how much will it cost to sign by the architectural and construction control authority is unknown. The State Inspection will no longer have the right to accept such construction for operation, local self-government bodies can block the process indefinitely, and private architectural and construction control will use the opportunity to help get rid of these problems for money.
And not to envy the subordinates of the initiator of the “experiment” – Deputy Prime Minister Kubrakov. Officials of the Ministry of Regional Development during the state architectural and construction supervision may expect humiliation on objects. In the best case, they will politely be asked to read the Constitution and the legislation.
How much does the “experiment” cost and who pays for it?
The authors of the project argue that the initiative will be implemented at the expense of budgetary funds and other sources not prohibited by law. But there is a separate document for this resolution – financial and economic justification. And it says that allegedly no funds from the state budget are needed.
But expenses from the local budget are provided. But this cannot be because, according to the law, if the government conducts such an “experiment,” local self-government must receive funds from the state budget (Part III of Article 142 of the Constitution of Ukraine and Article 39 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”). That is, whoever prepared the draft resolution leveled the Constitution not once, but several times.
So, the Ministry of Infrastructure provides inaccurate information about the lack of additional expenses from the state budget during the war for the implementation of its unconstitutional plan in the interests of developers.
Therefore, there will be expenses from the budget after all. Then the question arises: how much are we talking about? Although the important appendix is conveniently “forgotten” on the government website, which is waiting for proposals, we managed to get it from sources. According to the calculations of the Ministry of Regional Development, each year of the “experiment” will cost over UAH 664 million.
Але навіть ця цифра явно занижена, що дуже легко довести. Та спершу варто подивитися, на що ж уряд передбачає нові витрати. Це зарплата нових чиновників місцевого самоврядування. Вони мають працювати в нових органах Держархбудконтролю з розрахунку три чиновники в кожній з 1470 громад. Середня зарплатня — 12,5 тис. грн на місяць.
Here it is worth recalling that on the unique website created for the draft law 5655, they previously debunked the myth that more officials would be needed. After this, how can citizens trust information on websites with government domains?
As for larger communities, only three officials will be insufficient for control – more will have to be hired. However, in rural areas, these three officials won’t be able to do anything, but hiring fewer is not possible for an authority that must constantly and uninterruptedly perform its duties.
Another significant question is the professional level of new officials. These individuals must be able to inspect even large objects (the highest class of responsibility – CC3). Therefore, a corresponding level of education is necessary. These should be architects, design engineers, or inspection engineers. And don’t forget about lawyers who will later defend the results of colleagues’ inspections in courts against developers. And all of this entails expenses.
It is important to hear the government’s response to the question: even if there are funds from the state budget to compensate for this, how do they plan to attract thousands of specialists to villages for 10,000 UAH net? Moreover, offices need to be equipped, and commissions need to be paid. In addition to salaries, new employees will need to equip workspaces, purchase equipment – laptops and tablets for inspections, and possibly even cars, because public transport won’t reach remote objects in the community on unpaved roads.
The “experiment” also imposes another duty on local self-government bodies: to “constantly and uninterruptedly” monitor construction. The government does not have authority over this. But it can request it, and local self-government bodies may agree, if funds are allocated from the state budget for this purpose and permission is given to hire and equip several thousand officials for work.
Additional expenses can easily be justified at a level no less than or even greater than for conducting architectural and construction control, because monitoring involves more work than control – it requires constant checks of the entire community’s territory to identify unauthorized construction and respond promptly to all appeals from individuals and legal entities.
The “experiment” also specifies: if there are questions about documents, decisions on the registration of rights for preparatory and construction work and acceptance of completed construction objects into operation, changes to previously registered rights are made by officials of the executive bodies of local councils and Kyiv, Sevastopol city, district in cities Kyiv and Sevastopol state administrations, entrusted with the powers of the state registrar of property rights to real estate.
The draft law 5655 establishes an administrative fee for state registration in the field of urban development activity (Article 68). Parliament even managed to pass relevant changes to the budget on May 31 of last year, indicating how and with whom this money should be managed (Law 2290-IX “On amendments to the Budget Code of Ukraine and other legislative acts of Ukraine,” the former draft law 5656, directly related to the urban planning “reform”).
However, the Cabinet’s resolution is not a law, so it is impossible to establish a fee for a new service invented by the Cabinet, and the Procedure for the Implementation of the Experimental Project for the Acquisition of the Right to Perform Preparatory and Construction Works, acceptance into operation of completed construction objects is abundant with instructions for each possible service, stating that “the fee is not charged.”
However, someone has to pay for the provision of all administrative services that are free for the recipient. So if the Cabinet orders local government officials to perform this work and not take a fee from developers, then they should settle again with the state budget. Compared to maintaining the new architectural and construction control system, the amounts will be small, but about 100 million UAH will still have to be spent.
It will be very lucky if only a couple of billion UAH of additional budget expenditures are enough for the “experiment” in the first year. And this will be the state budget, not local.
Who is preparing proposals and how?
The deadline for submitting proposals on the government resolution is until December 29. Therefore, it is quite likely that this document will be attempted to be adopted at the upcoming government meeting.
The National Union of Architects is preparing letters to the Prime Minister and the Ministry of Reconstruction.
Фото: ЕРА/UPG
Reminder: The Ministry of Culture has also stated that it sees significant risks in this resolution for cultural heritage. Two years ago, there was an attempt to launch an automated construction permit system, but the National Anti-Corruption Bureau considered it to have a corruption component.
