Transparent rebuilding: will urban planning cadastre work as an anti-corruption safeguard?
For the authorities, the launch of the Urban Planning Cadastre is the main victory of recent months in reforming the construction sector. The government says it will protect reconstruction from schemes, a requirement of the partners spelled out in the financial support program.
A week before his resignation, Deputy Prime Minister Oleksandr Kubrakov sent a draft of the experiment to the State Regulatory Service for approval, which has now been implemented. But it contradicts the law, which adds new corruption risks. And here, “victorious digitalization” is nothing more than a myth. In addition, contrary to the requirements of the EU, the central government wants to blackmail local authorities to implement this experiment.
The Holka civic initiative decided to look into the peculiarities of the new regulation and what it would give to citizens who are supposed to help fight corruption schemes.
Simply put, an urban planning cadastre is a system for storing and using geospatial data to meet the information needs of urban planning. The need to create a public urban planning cadastre that digitally contains all information on the planning and development of territories is beyond doubt. Without it, neither the automation of licensing procedures nor effective public control is possible, so it is impossible to fight corruption and chaotic development without it.
The creation of an electronic system of urban planning cadastre was envisaged in the Law “On Regulation of Urban Development” in 2011. However, it has not been created in all the years since, even though both state and local authorities have publicly spoken about its necessity.
Unlike the State Land Cadastre, the Urban Planning Cadastre was not planned to be created as a unified state system at the expense of the state budget. Its structure envisaged interconnected separate software systems – one at the state level, 25 in the Autonomous Republic of Crimea and oblasts, in all districts (490 portals), and in Kyiv, Sevastopol, regional centers, and cities of regional significance (189 portals).
These 705 separate cadastres required significant funds for their creation and further maintenance while ensuring the information protection required for official systems. At the same time, only the state-level portal, which had the simplest functionality and the least content among others, was supposed to be created and maintained at the expense of the state budget. The costs of all other 704 cadastres were covered by local budgets. The cost of developing one ranges from several million hryvnias for simple regional-level cadastres to several million dollars spent by Kyiv on its city cadastre.
The most costly was the creation of cadastres at the basic level (rayons and cities), as it was there that all local urban planning documentation and all information related to construction and existing buildings and structures had to be contained.
The distribution of territories covered by local-level cadastres was tied to the peculiarities of the administrative-territorial structure of those times. Kyiv, Sevastopol, regional centers, and other cities of regional significance were not part of the regions, so they had to create their own city-level cadastres. Urban planning information about all other settlements was to be entered into the district-level cadastres.
This division led to predictable problems due to the different financial capacities of local budgets. Why would the region budget spend a lot of money to create a geographic information system to visualize urban planning documentation if small settlements in the region did not have the funds to create this urban planning documentation and there was no active development?
Large cities with extensive construction needed cadastres and had the funds to do so. However, big construction also means big corruption, which could have been prevented by full transparency of all processes. Therefore, the local authorities in such cities were not interested in rushing into anything.
There is every reason to believe that during the presidency of Viktor Yanukovych, the Law deliberately laid down the structure of the Urban Planning Cadastre so that it would not be created. After all, corruption with the issuance of construction permits was the responsibility of state bodies, and the publicity of the processes prevented them from doing so.
This assumption is supported by the fact that the Ministry of Regional Development additionally hindered the very possibility of starting to create cadastres. The last required state standard (DSTU-N B B.1.1-18:2013) was slowly developed since 2011 and came into force only at the height of the Revolution of Dignity.
As already noted, the structure of the urban cadastre was tied to the administrative-territorial system that existed in Ukraine in 2011. Therefore, the next major obstacle to its creation was the decentralization reform. The contradictions accumulated gradually with the creation of united territorial communities until they became critical in 2020.
Reducing the number of regions from 490 to 136 significantly increased the financial capacity of region budgets, which created an opportunity to develop cadastres in the future. And we should be glad that the old regions were in no hurry to comply with the requirements of the law and did not create their own cadastres, more than 350 of which would have been simply thrown away along with the tens or even hundreds of millions of USD spent on their creation.
However, as a result of this reform, the status of cities of oblast significance lost its meaning, and they became part of regions. Moreover, the vast majority of them became part of united territorial communities. Excluding the territory of the occupied Autonomous Republic of Crimea, only Kyiv, 8 regional centers (Dnipro, Zaporizhzhia, Mykolaiv, Odesa, Uzhhorod, Kharkiv, Cherkasy, and Chernihiv), and 18 cities of regional significance have not been amalgamated into ATCs with other settlements.
To ensure the balanced development of the entire amalgamated community, the legislation even introduced a new type of urban planning documentation – a comprehensive plan for the spatial development of the territorial community. However, the structure of the urban planning cadastre was not brought in line with the specifics of the new administrative-territorial structure. As a result, the 150 city-level portals have lost their meaning as a tool for the development of the amalgamated community, as the territories of the respective ATCs were divided into two different cadastres. At the city level, the legislation allows posting information only about the territory of the regional center or other cities of regional significance. Information about the rest of the community should be placed separately in the district-level cadastre, which does not contain information about the relevant town.
Earlier this year, another law within the administrative reform framework finally abolished the category of cities of oblast significance. This automatically abolished the requirement to create about 160 separate cadastres for such cities, rendered those already created at the expense of city budgets null and void, and led to the need for significant revision of the cadastres of the districts where such cities are located.
But even after the number of individual urban planning cadastres was reduced by almost fourfold from 705 to 188, the law’s system remained problematic to implement and too expensive to maintain.
Such a set of separate cadastres can fully fulfill its task only if all portals are integrated into a single system. This is not easy to achieve, especially in a period of active urban planning reform. Any changes in the format of urban planning documentation or technological requirements for maintaining cadastres approved by the Cabinet of Ministers or the Ministry of Regional Development require the modernization of all existing portals at the expense of local budgets. Although Article 142 of the Constitution explicitly stipulates that the state should compensate for additional costs incurred by local governments as a result of decisions of state authorities, this is not implemented in practice.
It should be added that the Ministry itself explains the need to create an Urban Planning Cadastre at the state level by pointing out the lack of funding for communities to bring cadastres at the regional and local levels in line with the new requirements for the development of urban planning documentation.
Analysis of the regulatory impact of the experiment with the introduction of a state-level urban planning cadastre
The impossibility of creating a full-fledged urban planning cadastre based on hundreds of separate portals has long been understood by the relevant ministry. Perhaps that is why the Ministry of Regional Development has not created a state-level urban planning cadastre in 12 years, which should have contained the General Scheme for Planning the Territory of Ukraine and combined the cadastres of the regional, district, and city levels into one integrated system.
In 2020, the gradual practical implementation of the idea of creating a single centralized cadastre began with the creation of the Unified State Electronic System in the Field of Construction (USESC) as a separate component of the urban planning cadastre. This system was supposed to contain all construction documentation (permits, approvals, baseline data, projects, etc.) that had previously been entered into separate cadastres at the district and city levels.
By order of the Cabinet of Ministers, by the end of the fall of 2021, the Ministry of Regional Development was to additionally ensure the development of services for validation and public discussion of draft urban planning documentation on the EDESSB portal and storage and visualization of approved documentation.
In 2022, the Unified State Register of Administrative and Territorial Units and Territories of Territorial Communities, the Unified State Register of Addresses, and the Register of Buildings and Structures were envisaged to be created and launched as part of the EDESSB, which eliminated the need to store relevant information in regional and local cadastres. It is worth noting that the Ministry of Regional Development delayed the launch of these registers by a year and a half.
In 2022, the Verkhovna Rada finally enshrined the need to create a unified electronic urban planning cadastre in the Anti-Corruption Strategy (Problem 3.5.1). Among other things, it provides for the automation of issuing urban planning conditions and construction restrictions in case the necessary urban planning documentation is available. New urban planning documentation should come into force only after it is entered into the urban planning cadastre, which guarantees its public access and makes it impossible to conceal it from the public.
The plan to implement these intentions was detailed in the State Anti-Corruption Program approved by the Cabinet of Ministers.
The EDESSB was to be filled with electronic versions of all approved urban planning documents, and public access to them was to be provided (Measure 2.5.1.1.1). A service for validation and public discussion of draft urban planning documents was to be launched (Measure 2.5.1.1.2).
By the end of August this year, the Ministry of Regional Development should have prepared a draft law amending the laws to create a unified electronic urban planning cadastre as envisaged by the Anti-Corruption Strategy (Measure 2.5.1.2.1). The relevant Urban Planning Cadastre should be put into operation no later than March 2025 (Measure 2.5.1.2.2).
Thus, the political intentions to carry out the reform have been recorded by the Verkhovna Rada and the Cabinet of Ministers in the fundamental anti-corruption documents, which were adopted at the request of our Western partners. The only question is the actual timeline for implementation. And it is better not to delay changes in legislation. Spending local budget funds during the war to maintain the old system of local urban planning cadastres, which will lose its value in any case, is unacceptable.
The Ministry of Infrastructure, under the leadership of Oleksandr Kubrakov, instead of drafting the bill envisaged by the State Anti-Corruption Program, developed another “pilot project”. The final draft, which was adopted by the Cabinet of Ministers in August, was ready and submitted for approval to the State Regulatory Service a week before Kubrakov’s resignation.
The National Agency for the Prevention of Corruption did not agree with this frivolous interpretation of the planned measure, but this did not stop the Ministry from implementing it even under the new leadership.
Information in the monitoring system of the implementation of the State Action Plan on the status of the measure to develop a draft law on the creation of a unified urban planning cadastre
The new experiment is complex. The government has launched not only the creation of the Urban Planning Cadastre at the state level but also established new rules for the development, updating, amendment, examination, approval, public discussion, and approval of urban planning documentation for two years. All of this should be done exclusively in public in electronic form through the new Urban Planning Cadastre, of which the Register of Urban Planning Documents will be a part.
Such changes could be considered a real revolution if not for one huge problem. The government experiment in terms of regulations directly contradicts the provisions of the law.
By order of the government, not only individual state bodies but also all local governments, developers of urban planning documentation and expert companies, and citizens who will take part in public discussions automatically become participants in this illegal experiment.
The non-compliance of the government’s experiment with the requirements of the law is not just a formal violation – it makes it impossible to implement the planned reform in practice and creates new corruption risks.
This can be most clearly demonstrated by conducting a fact-checking of the “key advantages of cadastre at the national level”, as outlined by Olena Shulyak, chair of the relevant committee of the Verkhovna Rada, in her article.
The most important in terms of development and the most numerous urban planning documentation at the local level will be available in the new cadastre only if local governments voluntarily upload it there.
The Law on Regulation of Urban Development obliges local governments to post such documentation on their websites and enter it into the urban planning cadastre of the appropriate level. The Cabinet of Ministers does not have the authority to order local governments to take actions not provided for by law, so in the experiment they only recommend that the already approved documentation be included in the new cadastre at the state level. If local authorities have previously directly violated the requirements of the law and concealed some of the documentation, it is naive to hope that they will comply with the recommendations of the Cabinet of Ministers.
Nevertheless, the government expects to force local governments to “voluntarily” implement these recommendations. To do this, the Procedure stipulates that in 6 months, urban planning conditions and restrictions and construction passports are provided subject to the relevant urban planning documentation being entered into the Register of Urban Planning Documentation of the Urban Planning Cadastre at the state level.
Blackmailing local self-government by the state authorities contradicts the obligations of European integration. In addition, the provision of urban plans and construction passports is an administrative service and the grounds for refusal to provide, which can be established exclusively by law. It is clear that there are no such grounds in the laws, because the inclusion of urban planning documentation in the new cadastre was invented in a government experiment.
And this regulatory fraud alone can easily outweigh any positive effects of the new cadastre by its negative consequences, as it creates opportunities for new corruption schemes and unleashes unscrupulous developers. The new schemes can range from simple ones, such as extortion of bribes from the developer for entering urban planning documentation into the cadastre to change the necessary initial data, to more complex and absolutely safe for officials.
Previously, the Cabinet of Ministers allowed design without urban planning conditions and restrictions for the period of martial law and for one year from the date of its termination or cancellation unless the authorized body provided them or refused to provide them within 10 working days. Thanks to the government’s experiment, officials were able to avoid providing answers without the risk of punishment – it is enough not to enter urban planning documentation into the cadastre, and the developer will be able to start building without urban planning.
A more complicated but safer option for both officials and future construction with violations is to refuse to issue the permit, citing the absence of urban planning documentation in the cadastre and not mentioning violations of the requirements of this urban planning documentation. After such a refusal, the court will quickly order the issuance of urban planning documents at any illegal whim of the developer.
For the state cadastre, the completeness of data is as important as its reliability. If the absence of data in the state cadastre does not mean that such data does not exist, this cadastre can easily turn from an official source of information into a source of disinformation. As mentioned above, there is no mechanism to ensure the completeness of data, so in terms of openness and publicity, the new state cadastre will be no different from an ordinary cadastre of the city or district level.
At the same time, restrictions for the period of martial law provide for the closure of public access to “sets of thematic geospatial data and relevant text and graphic materials,” which is all urban planning documentation, except for its cartographic basis.
During martial law, the public was denied access to all information in urban planning documentation, regardless of whether the publicity of such information poses a threat to national security. It is unlikely that anyone will deny that the negative consequences of closing access to the functional zoning of the territory, the regimes of protection of cultural heritage sites and the nature reserve fund, etc. far exceed the negative consequences of the aggressor country gaining access to this information.
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The requirements for the digital format of urban planning documentation, which is necessary to ensure data interactivity, came into force only in the summer of 2021. Nothing can be visualized beautifully because it has not yet been developed and approved.
Currently, there are tens of thousands of packages of urban planning documents that are valid for an unlimited period of time and developed according to the old requirements. The government’s experiment does not provide for updating them by converting them into vector digital form. The so-called “digitalization” for uploading to the new cadastre involves simply scanning paper documents and creating PDF files.
It is theoretically impossible to solve this problem through a Cabinet of Ministers resolution. According to Article 16 of the Law “On Regulation of Urban Development,” urban planning documentation is updated by local council decisions and approved by those decisions.
Updating all available urban planning documentation will take years, even if there is adequate funding. Local governments can be forced to do this only at the level of the law and by providing for subventions from the state budget.
Data validation.The entered data is checked for compliance with standards, format, and structure, as well as for correctness of coordinates. It is important that the entered data is also checked for compliance with other levels of urban planning documentation.
Improving the quality of new urban planning documentation is a definite positive. However, the pilot project involves checking the format and structure and compliance with the boundaries of the territories but does not provide for verification of compliance with the requirements of building codes for planning territories. How can the correctness of urban planning documentation as an electronic document compensate for manipulations with the planned amount of social infrastructure, green areas, etc.?
Automatic verification of compliance with higher-level documentation is also a definite positive. However, it is provided only if the higher-level documentation is developed in a modern digital format. Given that the experiment does not provide for updating old documentation, the benefits of such validation will only appear sometime in the distant future.
The pilot project does not provide for the automatic provision of urban planning conditions and restrictions and construction passports, although this was required by the Anti-Corruption Strategy and the LAP. These documents will continue to be issued by officials using the Unified State Electronic System in the field of construction.
Extracts from the Register of Urban Planning Documents, which is only one of the sources of information for issuing urban plans and construction passports, will be generated automatically. However, even these extracts will be generated automatically only if there is urban planning documentation that meets the new digital format requirements. So it’s worth reminding you again that there is no provision for updating old documentation.
Even the best geographic information system in the world will be just an expensive, beautiful toy if it lacks the information necessary for its operation. The Urban Planning Cadastre software package has been actively created at the state level since 2021, when funds for its development were provided for as a separate line in the state budget for the first time.
Updating the entire existing body of urban planning documentation to convert it into the digital format required for use in the new urban planning cadastre will take no less time and, most likely, significantly more funding than creating the relevant program.
If the goal is to digitize urban planning as soon as possible to overcome corruption and chaotic development, both processes should be done in parallel. In the context of the war and the need for subsequent transparent and effective reconstruction, the rapid launch of a full-fledged urban planning cadastre is becoming even more important.
However, the “experiment” developed under the leadership of former Deputy Prime Minister Kubrakov and launched by the Cabinet of Ministers looks more like a deliberate delay in launching such a cadastre. There is no other way to interpret the deliberate violation of the requirements of the Anti-Corruption Strategy and the GAP, which led to another postponement of the start of updating urban planning documentation, at least for the duration of this two-year experiment.
Specially for “Dzerkalo Tyzhnia”
