Archive for March 3rd, 2018

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Termination, suspension and re-transfer – Building Regulations Ukraine

March 3, 2018

Among the myriad of draft legislative initiatives registered at the Verkhovna Rada for the relevant committees to ponder is Draft Law 7266-1.

Draft Law 7266-1, in sum, seeks to terminate and/or suspend the powers of regional buildings inspectors, instead bringing construction inspection under the central control of the State Architectural and Construction Inspectorate.

Clearly a reader will ponder how such a centralising concept fits with the decentralisation policy of the current authorities – particularly as decentralisation has been something of a success (despite the lack of recognition for what has been a fairly successful policy).

Nevertheless, the Verkhovna Rada Committee on Construction, Urban Development and Housing has recommended the adoption of Bill No. 7266-1, a Bill specifically created to provide for the introduction of mechanisms to terminate the powers of local bodies of state architectural and construction control.

The explanatory note accompanying Draft Bill 7266-1 states “As the practical implementation of the law on the decentralization of powers in the field of architectural and construction control, and the improvement of town planning legislation showed, some established bodies of state construction control are not really able to properly perform their functions, which not only induces violations in the sphere of urban development, but also creates a danger to life and health of citizens.” 

Quite so.

Indeed the entire regulation of construction in Ukraine is neither qualitatively nor quantitatively subject to the necessary regulatory enforcement.  Rarely are there cases of construction companies being effectively prosecuted – and less so are they prosecuted and subsequently fined to the extent that infringements are prohibitive from a financial point of view.

It is undoubtedly cheaper for the larger construction companies to do as they please and bribe an inspector to look the other way (either permanently or until it is too late), and if that fails, to then bribe a judge to achieve an outcome whereby what’s built is built, and will not be subject to a demolition order.

Ergo, why not build 7 or 9 stories when planning permission was for 4 or 5 – even in protected historical zones (particularly when the Culture Ministry is almost entirely absent)?

On the rare occasion prosecution occurs, the fines are minimal compared to the real estate values gained by going beyond planning permission.

How many construction companies are forced to demolish what they have illegally built?  Neither national or local news are replete with such incidents despite the systemic abuse and ignorance of planning permissions and/or regulators and courts.

A reader will also not be surprised regarding related issues surrounding the standards (or sub-standards) of materials used either.

While that sub-standard materials issue may appear to be a domestic matter for the Ukrainians, it is only necessary to recall the fire in Arcadia Odessa at a hotel owned by Vladimir (Lampochka) Galanternik but a few years ago, to highlight but one incident of several in Odessa alone.

Hotels cater for more than the domestic market do they not?

It is thus not a purely domestic issue, nor is it an issue confined to a specific region of Ukraine.

The other side to this grubby coin is of course the inspectors that target construction companies and fit-out firms to solicit bribes either through deliberate misinterpretation of regulations, or simply through the threat of court action and the delays that may bring.  Bureaucracy involving human interaction naturally provides opportunities for corruption.

There is also a matter of the training and competency of any inspector – for there will certainly be instances of poor judgement and discretion with no corrupt coercive mens rea whatsoever.

However, the question to be asked, irrespective of this draft legislation prima facie flying fully in the face of (the rather successful) decentralisation policy, is whether centralising the inspection structures and processes will actually improve outcomes – or not?

Indeed the Draft Bill provides for the return of regional and local inspections after their initial removal and/or suspension.  A matter of temporary centralisation?

Is this then a legislative lever to provide time, via termination or suspension of local inspection rights, for quality control and quality assurance within the State Architectural and Construction Inspectorate structure to manifest?

If so, is there no other way to raise the internal standards of the SACI at a regional or local level – and will such standards be raised to the level of integrity, longevity and consistency required via this legislative route?

How, exactly, will the standards be raised and consistency applied across the regions, by centralising inspection processes, and will they be maintained once/if powers are returned to the regions?

It is perhaps not so much a question of legislative “ends” and “means”, but a question of internal structure and process implementation, complete with quality assurance and quality control.  Is there really a need to legislate to introduce that?

Well, perhaps.

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