The Better Regulation Delivery Office (BRDO) welcomes the simplification of procedures for starting road construction and improving the e-system in the construction sector but warns that amendments to the law regarding the chief architect’s powers create corruption risks.
On February 4, 2021, the Verkhovna Rada adopted the draft law “On Optimization of Road Construction and Improvement of Urban Development Legislation” (registration #2680) that was drafted with the participation of BRDO experts.
The law provides for the simplification of the procedure for obtaining the right to perform road reconstruction activities and major repairs. The law also improves the procedure for providing construction-related administrative services through the Unified State Electronic System in construction, reducing time to introduce certain services.
From now on, investors will be able to launch road construction activities without complicated bureaucratic procedures. In particular, this involves the acceleration of repair works on roads and, consequently, the stimulation of settlement infrastructure development.
Along with the positive changes, the amended version of the law contains provisions creating corruption risks related to the powers of chief architects. To be more specific, these include the power to approve project designs for a large number of objects. At the same time, there are poorly defined procedures and no established criteria for such approvals.
For example, according to the adopted contradictory amendment, the main reason for refusing the approval is a negative conclusion of the Architectural and Urban Planning Council. However, the same provision establishes that the Council’s conclusions shall be formulated as recommendations.
At the same time, the grounds for negative council’s conclusions are not established. Thus, it will be possible to refuse to approve any project without reason, and given the fact that the architectural and urban planning council is a collegiate advisory body that operates on a voluntary basis, there also will be no responsibility of those who made such a decision. And this is not the only element of collective irresponsibility introduced into the law because, in addition to the architectural and urban planning council, the decision of such a collegiate body as the advisory council on cultural heritage protection should be also taken into account. For each project on an individual basis! Even for objects with minor consequences!
The deadline of 15 working days to provide administrative services for approval is expected to be missed, as it seems impossible to prepare conclusions of two collegiate bodies with an irregular schedule of meetings during this time. And when it comes to the cases when the projects are submitted to the higher level council for consideration due to the absence of a local architectural and urban planning council, it will be even a longer period. That is, the complicated approval procedure will be significantly extended for the vast majority of construction projects, and this will certainly harm the investment attractiveness of the national construction market and worsen Ukraine’s position in the Doing Business rating.
In such a way, chief architects may use their own judgements with unlimited discretion and without liability for wrongful decisions. Besides, the construction project approval with chief architects is the only paper construction-related procedure that was removed from the functionality of the Unified State Electronic System in construction due to the new amendments.
According to experts, the priority task of chief architects should be the formulation of general rules: urban planning documentation, design code of a city or its separate parts, architectural competitions, etc. The formulated general rules prevent conflicts and inefficient spending of resources by participants in urban planning activities. Instead, approval procedures for each project carry the risk of unjust unpredictable decisions while being ineffective when it comes to the chief architect’s working time and not allowing them to focus on priority tasks.
For information:
Back in 2011, the state reformed construction relations and unified approval procedures in this sector. The Laws of Ukraine “On Regulation of Urban Planning Activities” and “On Architectural Activities” established a provision on exemption of projects developed following the initial data (urban planning conditions and restrictions) from any approval. The logic of such changes is simple and effective: requirements for construction projects should be made before design activities, not ex post facto. Every land owner, user, or buyer should understand the red lines for their plans before they spend money on their implementation. This is in line with the rule of law ideas, according to which the regulation of activities should be predictable for the persons to whom it applies.
Areas of historical significance are protected by cultural heritage protection tools. According to the BRDO analysis, several regulatory tools are applied to new construction projects in areas of historical significance. These include: approval of land allocation, approval of project documentation, permit for earthmoving operations, and works on monuments. In case of construction activities in the protection zone of local monuments located in the area of historical significance, approvals and permits shall be issued simultaneously by the Ministry of Culture of Ukraine and local cultural heritage protection authorities.