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Amendments to the Architectural and Construction Control Order can unprecedentedly broaden the authority of the GASK

04 April 2013 | Thursday
URE Club

Should the resolution of the Cabinet of Ministers about making amendments to the Architectural and Construction Control Execution come into force, the inspectors of the GASK would be able to check on not only the objects under construction, but also the ones that have been already put into operation. The experts came to this conclusion during the URE Club Legal Committee session that took place on March 27 at President Hotel. It should be admitted that not only the most complex class IV-V objects, but also simple class I objects will fall under control.

 

According to experts, the main problem of amendments to the Architectural and Construction Control Execution is a massive growth of objects, which can be checked on by the GASK, and also an increase of reasons for conducting such a control.

 

«The aim of the GASK is a so called public technical inspection, which protects social interests, first of all. When this idea does not work, and the check-ups become goals in themselves, but not a mechanism for construction safety increase, this is the time when the opportunities for violations emerge. Thus, such an opportunity is behind the draft of the regulatory act due to broadened authorities of the GASK. Such a situation contradicts the idea of «public technical inspection», at which the GASK should aim» — states Vladislav Kisil, the chairman of the URE Club Legal Committee and the partner of the «KPD Consulting» Law Firm.

 

According to lawyers, not all the abstract violations of law have to initiate suspension of construction by the GASK (as it is mentioned in the suggested amendments to the paragraph 11 of the Architectural and Construction Control Order). Experts state that mentioning about «violation of law» without sufficient definition will enable representatives of the GASK to initiate suspension of construction at their own judgment, which would finally imply suspension of project realization and losses. It would be more definite to limit the grounds for suspension of work by warning about violations that would, for instance, «damage life and health», at that decreasing the discretionary interpretation of norms of order by representatives of the GASK, suggest the participants of the URE Club Legal Committee.

 

New provisions that are to be introduced to the Architectural and Construction Control Order will assist with broadening of authorities for the representatives of the GASK. Thus, inspectors would have the right to check not only all the necessary documents, but also the quality of construction materials and accuracy of the class, assigned to the object (without mentioning the stage of construction, at which it will be carried out).

 

The GASK will have an absolutely new function, which will imply the control of project organizations. This clause is criticized by experts, which is provoked by an issue of sufficient inspector qualification for control of architects and project engineers.

 

Apart from this regulatory act, the experts of the URE Club Legal Committee have also inspected other resolutions of the Cabinet of Ministers about making amendments to the exploitation order (amendment to the resolution of the Cabinet of Ministers 461 as of 13.04.11) and abolition of registration process of declarations and issuance of permissions for preparational and construction works (abolition of the resolution of the Cabinet of Ministers 466 as of 13.04.11).

 

The participants of the session have commented on the abovementioned resolutions in the following way. Abolition of the resolution of the Cabinet of Ministers 466 as of 13.04.11, which established registration process of declarations and issuance of permissions for preparational and construction works has been stipulated by recent amendments to the Law of Ukraine «On town planning». The authority of appointing permission issuance for construction works has been transferred to the Ministry of regional development and construction of Ukraine from the Cabinet of Ministers. By discussing these changes, experts spoke about the obvious regression of the reform on construction.

 

Decrease of the authority level that is competent to determine the order for construction permission, from the Ministry of regional development and construction of Ukraine from the Cabinet of Ministers. «This is an obvious step back in creating adequate and steady «rules of game». Unfortunately, the branch will have to face the administrative authority establishing issuance of permissions for «by and for itself». It will be impossible to achieve steadiness and transparency of the authorization system, and, moreover, creation of the favor regime for developers in such conditions» — states the chairman of the URE Club Legal Committee.

 

 

Short information

 

URE Club Legal Committee

 

The regulation of legal activities among real estate market participants is one of the key elements of the market infrastructure. Admitting the importance of creating a transparent legal environment, which would assist with developing the Ukrainian real estate market, Ukrainian Real Estate Club has organized the permanent URE Club Legal Committee.

 

The main tasks of the URE Club Legal Committee are:

 

• Systematic activity, aimed at improvement of legislation that regulates the real estate market in Ukraine.

• Assistance for the members of the branch organization with solving legal and regulatory issues, connected with activities of URE Club members.

 

The URE Club Legal Committee consists of the leading law experts, representing law firms and being URE Club participants and partners. Apart from the lawyers URE Club Legal Committee includes all interested representatives of the companies that are the Club’s members. The URE Club members elect two co-chairs out of their number for the URE Club Legal Committee at a general meeting every year.


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