Construction in Ukraine. Legal Nuances

Опубликовано: 07.12.2020

Economic turbulence has the opposite effect on the plans of companies: some leave the market, while others approve development programs and move firmly towards the intended goal. How to start the construction of production and storage facilities? Anastasiia Obertinska-Yenich, the lead lawyer of the “Prime” Law Firm, K.A.C. Group, offers a look into what kind of bureaucratic permits are required for this matter.

Documenting the Construction Process in Ukraine from Alpha to Omega

The procedure for obtaining permits for the construction of architectural objects is regulated by the Law of Ukraine “On Regulation of Town-Planning Activities”, as well as by a number of subordinate legislative acts, links to which will also be provided below in the text. In accordance with Part 4 of Article 26 of the Law of Ukraine “On Regulation of Town-Planning Activities”, the right to develop a land plot shall be exercised by its owner or user, provided that the land plot is used in accordance with the requirements of town-planning documentation. The Law of Ukraine “On Regulation of Town-Planning Activities” establishes that the design and construction of facilities shall be carried out by owners or users of land plots in the following order:

Obtaining Town-Planning Conditions and Restrictions by the Customer or the Designer

An individual or legal entity intending to build a land plot owned or used by such a person must receive town-planning conditions and restrictions for the design of the construction object (Part 2 of Article 29 of the Law of Ukraine “On Regulation of Town-Planning Activities”). Town-planning conditions and restrictions are provided free of charge at the request of the customer (with the indication of the cadastral number of the land plot) with the addition of documents provided for by law. The provision of town-planning conditions and restrictions or a decision to refuse to provide them is carried out by the relevant authorized body of town planning and architecture within 10 working days from the date of the registration of the application, approved by the order of such a body (Part 6 of Article 29 of the Law of Ukraine “On Regulation of Town-Planning Activities”).

Obtaining Technical Specifications

Technical specifications are a set of conditions and requirements for engineering support of a construction facility, which must meet its design parameters for water supply (taking into account needs of fire extinguishing), heat, electricity and gas supply, water disposal, outdoor lighting, storm water drainage and telecommunications.

An individual or legal entity intending to develop a land plot owned or used by them has the right to obtain technical specifications on the basis of an application (Article 30 of the Law of Ukraine “On Regulation of Town-Planning Activities”). Technical specifications shall be provided within 10 working days from the date of the registration of the corresponding application.

Development of Project Documentation and Its Examination in Cases Provided for by Law

Design documentation for the construction of facilities is developed taking into account the requirements of town-planning documentation and initial data in compliance with the requirements of legislation, building codes and regulations, and is approved by the customer.

The procedure for the development of project documentation is established by the order of the Ministry of Regional Development “On Approval of the Procedure for the Development of Project Documentation for the Construction of Facilities” dated May 16, 2011 No. 45 (hereinafter also referred to as the “Procedure No. 45″).

According to the Procedure No. 45, to ensure the design of the construction facility, the customer shall provide a general designer (designer) with the initial design data. The main components of the initial data are:

– town-planning conditions and restrictions;

– technical specifications;

– design documentation. The documentation for the design of construction facilities is drawn up taking into account the requirements of the state building code DBN А.2.2-3: 2014 “Composition and Сontent of Design Documentation for Construction” and is approved by the customer in agreement with the general designer (designer).

The general designer (designer) and the customer determine the class of consequences (responsibility) of the facility (facilities that make up the complex (structure)), on the basis of which the number of design stages is established.

The question of whether it is necessary to conduct an examination of the design documentation is decided depending on a certain class of consequences (responsibility) of a facility. According to Article 32 of the Law of Ukraine “On Regulation of Town-Planning Activities”, the classification of a facility to a certain class of consequences (responsibility) is carried out by the design organization as agreed with the customer of the construction.

Article 31 of the Law of Ukraine “On Regulation of Town-Planning Activities” establishes that projects for the construction of facilities that, according to the class of consequences (liability), are classified as facilities with minor consequences (CC1), are not subject to mandatory expert examination, except for cases specified by law.

Compulsory expertise is subject to construction projects of facilities which:

1) according to the class of consequences (responsibility), are classified as facilities with medium (CC2) and significant (CC3) consequences – in relation to compliance with standards for sanitary and epidemiological welfare of the population, ecology, labor protection, energy conservation, fire, man-made, nuclear and radiation safety, stableness, reliability, durability of buildings and structures, operational safety and engineering support, including compliance with standards for creating an unobstructed living environment for persons with disabilities and other low-mobility groups of the population;

2) are constructed in areas with difficult engineering-geological and man-made conditions – in terms of stableness, reliability and durability of buildings and structures;

3) are constructed with the involvement of budgetary funds, funds of state and municipal enterprises, institutions and organizations, as well as loans provided under state guarantees, if their estimated cost exceeds UAH 300.000 – according to the estimated part of the project documentation;

4) are subject to environmental impact assessment in accordance with the Law of Ukraine “On Environmental Impact Assessment” – in terms of taking into account the results of environmental impact assessment.

According to the Procedure for Approval of Construction Projects and Their Examination, approved by the Resolution of the Cabinet of Ministers of Ukraine dated May 11, 2011 No. 560, expert organizations, regardless of the form of ownership, shall meet the criteria determined by the Ministry of Regional Development, and the information on them shall be entered in the Register of Construction Activities by the Ministry of Regional Development.

The customers of the examination are the customer of the construction or the designer, if it is provided for by the agreement for the performance of planning and surveying works. The examination is carried out under agreements concluded between the customer of the examination and the expert organization in accordance with the legislation.

To conduct the examination, its customer submits to the expert organization a construction project developed in the manner prescribed by the Ministry of Regional Development, in paper (no more than three copies) and electronic forms or in the form of electronic documents, the format of which is determined by the agreement.

The examination period should not exceed:

– for facilities that, according to the class of consequences (responsibility), are classified as facilities with medium (CC2) and significant (CC3) consequences (responsibility) – 30 calendar days;

– for facilities that, according to the class of consequences (responsibility), are classified as facilities with insignificant (CC1) consequences, constructed in territories with difficult engineering-geological and man-made conditions – 15 calendar days.

The expert organization sends the customer an expert report based on the results of the examination.

Approval of Project Documentation

Project documentation is approved in accordance with the Procedure for Approval of Construction Projects and Their Examination, approved by the Resolution of the Cabinet of Ministers of Ukraine dated May 11, 2011 No. 560.

Article 7 of the Law of Ukraine “On Architectural Activity” establishes that the project of an architectural facility shall be developed under the guidance or with the obligatory participation of the chief architect of the project and/or the chief engineer of the project, who have a corresponding qualification certificate.

The project of an architectural facility shall be certified by the signature and sealed by the personal seal of the chief architect of the project and/or the chief engineer of the project, who have a qualification certificate.

Project documentation for the construction of facilities developed in accordance with town-planning conditions and restrictions on the development of a land plot is not subject to approval by the relevant executive authorities, local authorities, cultural heritage protection authorities, state sanitary and epidemiological services and environmental authorities.

Projects of architectural facilities are approved by the customer.

Preparatory and Construction Works

Preparatory works may be carried out on the basis of a permit for construction works.

 

At the same time, even before obtaining a permit to perform construction works, the customer may perform preparatory works determined by building codes and regulations, with a notification of the state architectural and construction control body. The form of a notification of the start of preparatory works,  procedure for its submission, form of a notification of changes in the data in the submitted notification are established by the Resolution of the Cabinet of Ministers of Ukraine dated April 13, 2011 No. 466 “Some Issues of the Implementation of Preparatory and Construction Works”.

Article 34 of the Law of Ukraine “On Regulation of Town-Planning Activities” determines that the customer has the right to perform construction works after:

submission by the customer of a notification of the start of construction works to the relevant state architectural and construction control body – for construction facilities that, according to the class of consequences (responsibility), are classified as facilities with minor consequences (CC1). The form of a notification of the start of construction works and the procedure for its submission are established by the Resolution of the Cabinet of Ministers of Ukraine dated April 13, 2011 No. 466 “Some Issues of the Implementation of Preparatory and Construction Works”; or

issuance to the customer by the state architectural and construction control body of a permit to perform construction works – for facilities that, according to the class of consequences (responsibility), are classified as facilities with medium (CC2) and significant (CC3) consequences or are subject to environmental impact assessment in accordance with the Law of Ukraine “On Environmental Impact Assessment”.

A permit to perform construction works is issued by the state architectural and construction control bodies free of charge within ten working days from the date of registration of the application.

Conducting Control Geodesic Surveys of Completed Construction Facilities (except for Facilities that, according to the Class of Consequences (Responsibility), are Classified as Facilities with Minor Consequences (CC1))

Before the commissioning of a completed construction facility, the customer provides a control geodetic survey of such a facility. The control geodetic survey is carried out by persons who, in accordance with the procedure established by law, are included in the State Register of Certified Land Survey Engineers or the State Register of Certified Geodetic Engineers.

The person who carried out the control geodesic survey of the facility enters its results into the Register of Construction Activities with the assignment of a registration number in this system.

Carrying Out the Technical Inventory

Article 39 of the Law of Ukraine “On Regulation of Town-Planning Activities” determines that the technical inventory of a real estate object is a set of works aimed at determining the actual area, volume, technical condition and/or determining changes in these characteristics for a certain period of time with the production of relevant documents (technical inventory materials, technical passport) using the Register of Construction Activities.

The technical inventory of a real estate object is carried out by an individual entrepreneur or a legal entity, which includes one or more responsible executors of certain types of works (services) related to the creation of architectural facilities that have passed professional certification and received a qualification certificate for the right to perform works on the technical inventory of real estate objects in accordance with the Law of Ukraine “On Architectural Activity”.

The term for the performance of works, the amount and procedure for payment for works on the technical inventory are determined in the agreement concluded by the parties.

The procedure for carrying out the technical inventory is approved by the Order of the State Committee for Construction, Architecture and Housing Policy of Ukraine dated May 24, 2001, No. 127 “On Approval of the Instruction on the Procedure for Conducting the Technical Inventory of Real Estate Objects”.

Commissioning of Completed Construction Facilities

The commissioning of completed construction facilities that, according to the class of consequences (responsibility), are classified as with minor consequences (CC1), is carried out through the registration by the relevant state architectural and construction control body, free of charge, on a basis of an act of readiness of the facility for operation provided by the customer within ten working days from the date of the registration of the application.

The commissioning of completed construction facilities that, according to the class of consequences (responsibility), are classified as facilities with medium (CC2) and significant (CC3) consequences, is carried out on the basis of an act of readiness of the facility for operation through the issuance of a certificate by the state architectural and construction control bodies in the manner prescribed by the Cabinet of Ministers of Ukraine.

Decision-making on registration (return) of the act of readiness of the facility for operation, which is provided in paper form, issuance (refusal to issue) of the certificate is carried out by the state architectural and construction control bodies within ten working days from the date of submission of the relevant documents.

The procedure for registering an act or issuing a certificate is regulated by the Resolution of the Cabinet of Ministers of Ukraine “Issues of Commissioning of Completed Construction Facilities” No. 461 dated April 13, 2011.

Thus, the procedure for obtaining permits for the construction and commissioning of a facility depends primarily on what class of facilities the building or structure will be classified to in according to the project – as a facility with minor consequences (CC1) or a facility with medium consequences (CC2) or significant (CC3) consequences. The timing of the completion of the project and the commissioning of the building depends on the design organization, since the legislation does not regulate the time during which the development project is to be made. Furthermore, the law does not establish the timing of such processes as conducting the technical inventory, conducting the control geodetic survey of completed construction facilities (carried out under an agreement with persons entitled to provide such services; the term is established in such an agreement). In general, the legislation provides for the timing of individual stages of the process of obtaining permits for construction, namely:

1) receipt of town-planning conditions and restrictions – 10 working days from the date of the registration of the application;

2) receipt of technical specifications – 10 working days from the date of the registration of the application;

3) examination of project documentation – up to 30 calendar days;

4) obtaining a permit to perform construction works – 10 working days from the date of the registration of the application;

5) registration of an act of readiness of a facility for operation or receipt of a certificate – 10 working days from the date of the registration of the application.

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