#5655: Part 2. Do not believe, do not be afraid, speak!

We continue the topic, published in volume 35 of PRAGMATIKA.MEDIA, and we publish a new selection of opinions of participants in the construction process from different sides of the barricades.

 

Andrei Vavrysh: "It's time to come to a consensus and start solving really important things"

Will the urban planning reform solve the strategic problems of the industry or will it get stuck in long disputes and discussions? We discussed the "average room temperature" with Andrey Vavrysh, the owner of SAGA Development, and clarified his position as a developer regarding the architect's copyright.

PRAGMATIKA.MEDIA: In your opinion, will the reform initiated by our legislators allow to restart the construction industry and restore order?

Andrey Vavrysh: Everything that concerns such a large-scale sphere as the urban planning industry should be considered not from the point of view of one of the participants in the process, but from a distance. A wider angle of view allows us to see huge systemic errors and the extremely unfavorable general disposition with which we begin the reform. The World Bank closely monitors the pace of urbanization, as it is the main process transforming the entire world system and the organization of people's lives in all countries. In the international ranking, reflecting the dynamics of the growth and disappearance of urbanized territories, Ukraine was in fifth place. The first is China, and the second is the USA, and it is understandable why, because these are the two largest economies in the world. The third place is India, the fourth is Russia, and we are fifth. Moreover, for example, stable Germany is only the seventh.

PM: What does this mean? Should we be proud that our rate of urbanization is one and a half times higher than that of the Germans?

A.V.: The German economy produces the total GDP of Ukraine in just 360 hours, and at the same time, the Germans lag behind us in the pace of urbanization. Do you understand that urbanization is a huge amount of money? This is not only networks, not only engineering, not only the load on transport, on the infrastructure as a whole. But if you look at the reasons why Ukraine has achieved a gigantic increase in urbanization, you will see that this happened due to the urbanized territories in Left Bank Ukraine falling out of circulation, with the collapse of the industrial complex, and due to hyperactive development in Right Bank Ukraine. At the same time, we have negative population growth and active transformation of economic potential. And here is Kyiv, with the total population of the country falling by 19% over 30 years of independence, it is increasing by 7–10%, and taking into account the Kyiv agglomeration, the scale of expansion and growth of urbanized territories around the capital is even higher. Is it an imbalance? Obvious imbalance.

"While none of the parties raises the most important issue - what are we actually designing"

Now pay attention to how much is being asked for a square meter of warehouse space in the central part of Podol and in a satellite city, for example, in Boryspil. In Boryspil, the rent of a square meter of a warehouse costs 180–200 hryvnias per month, and in the center of Kyiv, in Podol, it is significantly cheaper — 120–160 hryvnias. Isn't this an indicator of a crazy imbalance, which I associate with our chaotic demands and approaches: "it is impossible to touch it, it is impossible to take it abroad, we preserve the potential of the factories "Bolshevik", named after Artem, Kosior, but we build New Vasyuki on the left bank."

What has our urban planning system turned into? I sincerely believe that she is seriously ill. Some are engaged in the protection of architectural monuments, and that is getting worse and worse, others are engaged in urban planning, and the content of the master plan is further and further away from the interests of citizens. But this only leads to the fact that a moratorium is imposed on the re-profiling of objects, on very complex procedures related to the participation of the city council. And all this along with huge corruption risks when making seemingly simple management decisions. And also with an incorrect interpretation of rights and the power of attorney, and what is "legal" or "illegal". During the 30 years of independence, there were tens of thousands of criminal cases and a few verdicts on land use issues. Can you imagine the scale of this disproportion? They are so big that we were thrown from the 50th or 30th place in terms of urbanization rates to fifth. This scale of stupidity in which we have sunk is such that Ukraine suddenly found itself at the top of the ranking of urbanization.

PM: Does this mean that Ukraine is urbanizing rapidly, but chaotically, thoughtlessly and without looking at the future?

A.V.: Yes. And this is very dangerous for us. This was a look at the situation at the macro level, but what do we face in the approximation? The eternal debate — is it necessary to strengthen one role, one player in the overall development process? They say: "Return the powers to the chief architect of the city!" And I do not consider it necessary! When I first came to work at Glavarchitektura, district architects were busy taking felt-tip pens and interpreting the provisions of the master plan in their own way. So that this self-activity was not there, I created a town-planning cadastre and published the entire master plan.

Now we have thousands of experts on urban planning issues, they understand everything, the information is published, it is open, but it is interpreted in different ways! The system of relations within society has become significantly different. But are these changes qualitative? No, because the procedures, algorithms, and deadlines are violated, and the powers are exceeded, because there are too many manual regulations and subjective factors. At this level, the same chaos.

Therefore, I fully support the attempt to structure the industry, which is being done by Elena Shulyak and other co-authors of Bill No. 5655. At the same time, I understand the position of architects in their desire to defend copyright. But unfortunately, so far none of the parties has raised the most important issue for discussion — what are we actually projecting, what main idea are we putting into the development of the master plan? "General" sounds loud, everyone thinks: this is the main plan. In fact, this is an ordinary master plan, a concept of territorial development. What is important is not the general plan, but the following documents that harmonize the interests of the community and the theses reflected in the master plan.

Harmonization is a search for consensus between residents, businesses and local authorities. It is important for us to go on the path of seeking this agreement, and not to continue the "wall to wall" battle, as is happening now. Consensus with the involvement of all participants is the highest value.

Another value is the provision of all plans with resources. Stop suffering from gigantism and projecting as if tomorrow the era of household planning will return or a wizard will suddenly fly in and pay for everything that was designed and drawn in the city documentation. If you compile the general plans of all settlements, you will find that they are aimed at doubling the country's population. Does anyone really believe that it is possible to double the population in the next 10-15 years? I know that this is not so. But this perspective is included in the urban planning system, which is a huge mistake. Everyone is involved in this scam: some pretend that they protect monuments, others - that they design something qualitatively, others - that they protect general plans, and the fourth - that they engage in public activities. But in fact, all parties are bluffing. Throughout this history, it is necessary to change the point of entry - to human-centered design and development of the city, focused on real resources.

In order for this to happen, it is necessary to interact with business not with the help of manual regulation or threats, but through a normal dialogue - to interest and persuade them to jointly develop the city in the right, sustainable direction. And then it will turn out that a comfortable city is not a set of slogans or a colorful booklet, but first of all a system of standards, rules and algorithms of urban planning policy. Therefore, I want to wish success to one and the other side in this protracted discussion, to quickly reach a consensus and start solving really important things.

PM: Still, a lot depends on the position of the developers in this discussion. Items related to copyright were excluded from the draft law, but the problem itself remains. Here is your company, concluding contracts with external designers, to whom does it leave the property rights? Does the architect have the opportunity to supervise the author during the entire construction process?

A.V.: Author's supervision is not an opportunity, but a service from the architect, his job. And we insist that the project architect be a participant and reviewer of all project decisions until the end of the process. Yes, there is a reasonable, necessary and sufficient scope for such control. If the design system itself implies that the "P" stage is performed in accordance with the architectural concept, and the working documentation - in accordance with the "P" stage, then it makes no sense for the author to find every working drawing. Only control the choice of materials or individual nodes that are critically important for the overall solution to be harmonious and properly implemented.

But if in this story, each of the design stages is different from the other, if the process is built on some kind of manipulation, then the architect turns into a gatekeeper who needs to catch every document. We left similar design approaches a long time ago, and we are increasingly trying to implement design standards based on work with BIM and digital document management. This allows you to quickly check the documentation.

As for copyright, we do not encroach on either property or non-property rights. It is an honor for us that the best architects make projects for us. And it is important that they themselves are proud of the results of their work.

There are nuances, of course. The general culture makes us wish for the best and, I believe, there are architects who have the right to insist on their decisions, and there are those whose professional level simply does not give such a right. And then the best thing a developer can do is simply buy off the destructiveness. And the result is not even important to the architect, he thinks, they say, let everything collapse there, if only to settle with me.

I support the discussion about copyright, during which the inside of the relations of the construction process is voiced. It is justified, because thanks to the discussion, a new ethics of relations should be born, when no one pretends to be someone else's role, and at the same time faithfully fulfills his own.

 

Vladimir Zubyk: "Author's supervision of architects — a chance for a unique landscape"

Is draft law No. 5655 really "sharpened" for the interests of developers? What do they think about it? Vladimir Zubyk, president of the Intergal-Bud Association of Construction Enterprises, shared his opinion on what exactly needs to be corrected in the final draft of draft law No. 5655 with PRAGMATIKA.MEDIA.

PRAGMATIKA.MEDIA: Bill No. 5655 has already been dubbed "developer". Does it really provide some significant preferences to developers?

Vladimir Zubyk: The draft law does not provide preferences to developers, but maximally excludes the corruption component in the coordination and obtaining of permit documents thanks to digitization. Yes, it will simplify the process of obtaining documentation, but at the same time it will exclude from the chain of officials who previously demanded "compensation" for their services.

In the final version of the bill, it is necessary to take into account the recommendations of all market stakeholders. In particular, the requirements of the architectural community to grant them property rights. Without the author's supervision of architects, the city will lose the chance to form unique architectural landscapes. The only thing that is important to add to the draft law in this context is to regulate the commissioning procedure of the facility in specific cases. In practice, we face situations when the project is ready, but we cannot put it into operation. The main reason is that the project organization no longer exists, there is simply no one to sign the final documents. It is important to understand how to act in the legislative field in such conditions, because all the rules are formally observed.

"Due to the exclusion of corrupt rates, the burden on real estate buyers will decrease"

PM: When concluding contracts with external designers, to whom and why do you leave property rights?

V.Z.: Most often, project organizations transfer property rights to us with their subsequent use only on one specific construction site. But this issue is regulated individually in each case: it all depends on the conditions under which a specific contractor works. After all, in practice there have been cases when project organizations themselves initiated the process of transferring full copyrights - it is more convenient for them. For us, this point is not fundamental when choosing a contractor.

PM: In your opinion, will the reform make it possible to eliminate the corruption component from the development process?

V.Z.: The corruption component for developers will significantly decrease thanks to the introduction of digitization. The process of approval and obtaining of permit documents will take place in the Unified Electronic System: transparently, publicly and automatically. The final decision will not depend on any of the participants in the construction process, including officials. In addition, due to digitalization, due to the elimination of corrupt prices, the burden on the end user - real estate buyers - will decrease.

 

Natalia Kozlovska: "One of the goals is to make the risks of internal professional collusion impossible"

According to draft law No. 5655, the Ministry of Community and Territorial Development becomes one of the key players in the urban planning industry after the reform. How wide powers do legislators grant state officials, what exactly are their supervisory functions? What is the role of local self-government bodies? Nataliya Kozlovska, Deputy Minister of Community and Territorial Development, answered PRAGMATIKA.MEDIA's question.

PRAGMATIKA.MEDIA: So, draft law No. 5655 is undergoing a stage of adjustments and, as we can see, the document that was adopted in the first reading has undergone significant changes. Taking them into account, what will be the role of the ministry? Are the critics of the project right, who believe that "the Minregion is closing everything on itself"?

Natalia Kozlovska: Yes, now draft law No. 5655 is being prepared for the second reading. In total, 2779 amendments were submitted to the project by people's deputies of Ukraine. In addition, there are proposals from the central executive authorities and the professional environment. Of course, consideration of amendments and proposals will make adjustments to the text of the final version of the draft law, but the basic concept remains unchanged, including the role of the Ministry of Regions, which is proposed to be determined by the state urban planning supervision body.

Taking into account the level of deregulation proposed by draft law No. 5655, it is very incorrect to say that "the Miniregion is closing everything on itself." On the contrary, the following is assumed:

• Digitization of processes and registration procedures in construction.
• Strengthening the role of local self-government bodies. In particular, they receive significantly expanded powers to control construction objects that are built by themselves, and are also empowered to carry out urban planning control of objects with significant consequences (CC3).
• Conducting economic activities for the implementation of urban planning control by legal entities (business entities) regardless of the form of ownership.
• Automatic acceptance into operation of construction objects: on the basis of the act of readiness of the object for operation, signed by all responsible executors and the person authorized to carry out state urban planning control; if there is information in the Register of construction activities about the absence of violations according to the results of urban planning control.

In addition, we refuse construction permits and proceed to the registration of the corresponding right. Such registration will be carried out either automatically by the Unified State Electronic System in the field of construction, or by notaries or state registrars.

PM: Did we understand correctly that the question of revocation of certificates remains with the National Union of Architects of Ukraine? Is it possible to specify the supervisory function of the Ministry of Regions?

N.K.: First, there are several self-regulated organizations in the field of architectural activity in Ukraine that carry out professional certification of executors of works (services) related to the creation of architectural objects, and not only the National Union of Architects. That is why it is incorrect to say that she will withdraw certificates.

Regarding the deprivation of qualification certificates, it is worth noting that, in our opinion, giving one subject the authority to issue and revoke the right to a profession creates additional risks in the form of an internal professional conspiracy. As a result of such a conspiracy, it will be simply impossible to deprive the certificate, or on the contrary, it can be a mechanism of pressure on the performers of works (services) related to the creation of architectural objects.

That is why the procedure when the professional certification body prepares a relevant conclusion or submission regarding a specific contractor, whose activity is considered in the order of state urban planning supervision, looks more effective. It is the reason for the deprivation of the qualification certificate.

PM: According to the explanations of the authors of the draft law, the role of "entering the site where construction is being carried out in violation" is assigned to local self-government bodies. And if the CSOs ignore the violations? Who and in what form will control their inactivity? And how to punish?

N.K.: The draft law envisages not the right, but the duty of local self-government bodies to enter the construction site and take very strict measures in relation to objects of spontaneous construction in the first place.

"The draft law envisages not the right, but the duty of local self-government bodies to enter the construction site and take very strict measures"

For non-fulfilment of this duty, officials will bear serious responsibility - disciplinary, administrative and criminal. The Ministry of Regions, as a body of state urban planning supervision, will monitor the implementation of such powers by local self-government bodies, and urban planning monitoring will not allow pretending that no one sees anything.

PM: The customer, despite the fact that he is the main beneficiary of possible violations and deviations from the architectural project, according to the draft law, does not bear direct responsibility. How can the state and the Ministry of Regions, as a state authority, influence the customer?

N.K.: The draft law No. 5655 provides for the distribution of responsibility among all subjects. The customer is responsible, for example, for carrying out construction works without registering the corresponding right; for failure to provide copyright or technical supervision; for failure to hand over the finished and connected to the engineering networks residential building, which was built with the involvement of funds of individuals and/or legal entities, to the owner or the association of co-owners of the apartment building, or to the manager within the period specified by law; operation of an object not taken into operation.

At the same time, the customer cannot be held responsible for violations committed by the developer of the project documentation or the expert.

PM: The phrase "you will never put the object into operation" does not scare anyone. Developers continue to build floors, even despite court injunctions, and small "investors" calmly make repairs in apartments of such buildings and even rent them out. In your opinion, is the reform able to radically change the situation?

N.K.: The specified problem is indeed very acute, but it is solved by establishing clear procedures and personal responsibility of all participants. Floors cannot simply grow like that, someone designs and builds them.

Bills No. 5655 and No. 5877 systematically approach the solution of the problem. Full publicity and transparency of all actions of urban planning entities is assumed. I will list the main theses:

1. all documents are created using the Unified State Electronic System and made public; a qualified digital signature of the person who created such a document is placed on them;
2. new mechanisms for the development of project documentation and its examination are being created, which will make it impossible to design with violations of the original data;
3. constant monitoring by local self-government bodies is envisaged, which is designed to detect violations at the early stages and force local self-government bodies to control the situation with construction;
4. a transparent system of state urban planning supervision will be created, which will hold urban planning subjects accountable for designing in violation of the requirements of the initial data;
5. local self-government bodies are empowered to make decisions on the dismantling of self-built objects and to monitor their implementation; in addition, the responsibility for offenses in the field of urban planning activities, including criminal ones, increases significantly.

 

Lev Partskhaladze: "The status, influence and earnings of architects will only increase"

We discuss the strengths and weaknesses of the high-profile draft law
No. 5655 with Lev Partskhaladze, president of the Confederation of Builders of Ukraine, appealing to his experience as a developer and government official (he held the post of Deputy Minister of Regional Development, Construction and Housing from November 2016 to September 2019).

PRAGMATIKA.MEDIA: The co-author of bill No. 5655, Elena Shulyak, recently stated that the most triggering issue for the architectural environment was the mandatory transfer of property rights from the designer to the customer, dictated by the state's need to build standard objects and save on design. But the practice of standard design in civilized countries has already been ostracized. Is Ukraine rich enough to build cheap typical buildings and unify architecture?

Lev Partskhaladze: When I worked in the Ministry of Regions, I deeply and in detail dealt with the issue of social infrastructure development. We need standard construction, first of all, not because it is cheap, but because we still have a low culture of architecture, a low culture of construction quality. In the cities of millionaires, everything is not so bad, but in the regions, the projects that local architects demonstrated to us were sometimes frankly ridiculous. Therefore, it is desirable to continue to build certain facilities - dispensaries, medical centers, schools, kindergartens, police stations, etc. according to high-quality standard projects, as we have been doing. For example, for the construction of dispensaries, we have developed four standard projects taking into account all modern requirements, norms and standards.

In this way, we have already ensured a certain level of quality, and confirmed that barrier-free principles, energy-efficient facades and competent, flexible planning must be implemented. The same with other objects of social infrastructure: schools, kindergartens, police stations. We have developed standard projects for modern Security Centers, where the police, firemen and ambulance crews are on duty under one roof. This approach made it possible to save on design and time, since the design process with expertise can take up to a year. It will also speed up the construction process itself, simplify logistics, and purchase materials almost twice as cheaply.

In our settlements there is a catastrophic lack of social infrastructure - kindergartens and schools. And standard projects are very helpful in this case, as they allow you to optimize expenses. This does not mean that all social projects must necessarily be typical. Let the community decide. But such an opportunity should be possible. Therefore, when Elena Shulyak spoke about standardization, yes, standardization, from my point of view, is an additional opportunity. Well, the mandatory transfer of copyright was discussed only for those cases when it comes to budgetary orders. In the case of private orders, everything is decided at the level of contracts.

PM: When you act as a private developer, do you prefer to leave copyright property rights with the architect or insist on their transfer to you?

LP: As a private developer, we always reserve property rights at the very first stage of concluding a contract. If the architect does not agree, then we simply do not hire him. For example, we are currently working on a project, we worked with one project organization, but at some stage their enthusiasm faded and the process stalled. Architects are creative people, sometimes they are not characterized by systematicity, often they cannot finish work on time. Therefore, there are situations when we change designers, since we cannot depend on them. It doesn't matter if the architect changed his line of work or left the country. It happens that the designer did his work poorly, but does not want to improve it.

Of course, the architects are right — copyright must be protected, because customers are different. I also participated in the discussion of the draft law and spoke out in favor of removing this controversial issue from the agenda, thereby removing tension.

PM: All over the world, the architect's copyright is almost sacred, and moreover, it is the author's supervision that guarantees that the object will eventually correspond to what was shown at the concept presentation. Do we have a different way?

LP: The problem is that, evolutionarily, we have not yet matured to Europe, and we still need twenty years to catch up. There, the development process is organized differently, starting with access to resources. There is "cheap money" — you can get a loan at 1,5–2%. And no pyramid "Elita-Center" is in principle impossible, since the customer first builds everything and only then sells it, it is trivially unprofitable for him to sell real estate at the foundation level, if it is possible to earn more by selling an already completed object. No one will buy apartments with their own money, when banks and the state are reaching out, just so you can buy housing.

Accordingly, if you, a developer or buyer, take a loan from a bank, the bank checks the documents so thoroughly that no fraud is possible. In Europe, a building permit as such is not required, it is enough for the architect to put his signature. His role and reputation are so high.

"If the customer demands something illegal, then the architect must resolutely refuse to do it"

And with Bill No. 5655, we are increasing the role of architects by introducing total digitization of the process. If the architect puts his signature, it means that he is responsible, it means that he has a vested interest in quality. Today there seems to be responsibility, but in fact no one punishes the designers, no one leaves the license. Previously, in general, a license was not issued for a person, but for a company. It happened - they took a license, and then replaced all the architects, and in fact created a new company. It was possible to draw any project and not be responsible for it. And only when we introduced personal responsibility with the law "On regulation of urban development activities", it immediately played a role in improving quality. Law No. 5655 will strengthen this responsibility even more.

PM: But is it fair that the responsibility is completely transferred to architects and experts? The customer is the main beneficiary, and theoretically it is he who is interested in maximum optimization, sometimes in violation of norms. Shouldn't the customer's responsibility be spelled out?

LP: We all dream of investments in our economy from abroad. Let's imagine that a foreign investor, who is physically located in the USA, decided to be the customer of some construction in Ukraine. But non-residents do not know the intricacies of our legislation. How can they be responsible in this situation? The responsibility is transferred to the architects exactly in their part - their task is to design taking into account all norms and standards. Yes, this is primarily beneficial to the architects themselves - their services will predictably become more expensive, because the higher the responsibility, the more expensive the work. If the customer demands something illegal, then the architect must resolutely refuse to do it. And he does not put his signature. This is a step towards a civilized future in which both the role of architects and the cost of their services will grow. Yes, such an order obliges designers to scrupulously adhere to all norms. The situation is the same with experts. For example, it is now very difficult to find a notary who will sign something illegal, because he is personally responsible.

The state needs to deal with the corruption component. In order to eradicate corruption, it is necessary not only to strictly demand that the documents meet the standards, but also to translate everything into numbers in order to exclude the human factor. You upload information, but if the purpose of the plot does not correspond to the plans, then such a project will not automatically proceed. If the architect does not view the project, then no one will be able to upload fake documents. They will not pass if the expert has not put his signature. In this way, we immediately remove the corruption component, we excluded from the process those who made some collective decisions on the commission and passed on dubious projects for bribes. Control will pass to private organizations, as it was with the notary. Do we now generally lack distrust of notaries? What kind of notary would accept a bribe now so that he could go to jail and lose his reputation and income? Few people will go for it.

PM: The draft law assumes the creation of such structures as "private DABYs" — these are legal entities licensed by the Ministry of Development of Communities and Territories of Ukraine. And the opponents of the bill believe that there is a possible conspiracy of developers who will simply finance the creation of such private inspections. A private inspector will turn a blind eye to actual violations at the commissioning stage. Isn't such a scenario possible?

LP: This conspiracy theory is baseless. First, the DABA conclusion will be necessary only during commissioning. The application for construction will be automated - you upload the information, and if it passes the parameters, you get permission. And the main element here is the architect's signature. Yes, architects should pray for such an opportunity! Now they themselves have the opportunity to control everything and prevent possible fraud. If they will control this process, believe me, the role of the architect will grow many times.

Secondly, we have considered and discussed this issue dozens of times. This idea is actually not the developers' idea, but Saakashvili's team. Saakashvili managed to add approval to the National Reform Council этот вопрос. Today there are about 55 types of expert organizations. And not a single developer creates his own expert organization or notary. Because it's very expensive, inefficient, it's the same as if journalists were printing their own paper. Everyone should do their own thing. This is a completely different business.

Name me at least one company that has its own private expertise? At least one developer who has his own notary? There are notaries with whom companies work on a permanent basis. But there is no sense in starting your own. In order to maintain an expert organization, it is necessary to spend about a million hryvnias on it per month - on the salary of certified specialists. These people should be loaded with work. But not a single developer pays for the project per month. And for the sake of one project per month, where the most expensive examination will cost a million - you must spend exactly the same amount on maintenance. There is no reason.

PM: Do you personally see any weaknesses in the bill?

LP: I understand this bill very well, because I participated in the background. Before 2011, we had to go through 35 different procedures to start construction. Then we adopted Law No. 3038, which reduced their number to six, and the terms of passage to 60 days. And Ukraine immediately rose from 186 to 20th place in the Doing Business ease of doing business rating. Starting in 2022, another procedure related to equity participation will be removed from the legislative field, and I am sure that we will immediately enter the 5th or 10th rating. But we still could not eradicate corruption. No matter what the project was - perfect or imperfect, at every stage the customer asked for a bribe.

Under Yanukovych, the only way to pass through the registration service was payment at a single rate — $6 per square meter. I remember how people's deputies from the Party of Regions came to me and asked if, by any chance, I had a discount? Passing BTI cost $1–2 per square meter. Today BTI became private — and immediately there were zero problems! You go to any notary - no problem! The state cannot defeat corruption when it comes to monopolies, especially in such a delicious piece of business as construction. There will always be a reason to complain, to hint, to slow down.

Therefore, a political decision was made to denationalize this sphere — to transfer key issues into private hands and under personal responsibility. The development of any new draft law always contains some imperfections. Therefore, it should be understood here that the draft law is a framework document, it lays down principles. It is important to monitor the process when the decrees and orders of the ministry will be issued, it will take several more months. And these documents will already contain extremely important details and wordings that must be properly written.

Therefore, I do not see any obvious weaknesses in this draft law. Concept architects are possible and necessary, so the trigger question about copyright was removed. It seems to me that everything happened due to a failure in communications, a more dense and constructive dialogue was necessary. But there is a nuance about which I cannot fail to mention: do not forget that there is a team of old "reshals" who are deeply offended by all our reforms. And now they can throw money and firewood into the fire, so that this reform does not take place. We control the situation of who pays, who pays, and which organizations provoke the discussion. But reform is vitally necessary for us, otherwise we will not defeat the old system. And architects
peace of mind - their status, influence and earnings will only increase after the adoption of draft law No. 5655.

 

Julian Chaplinsky: "5655 is a return to worst-case scenarios"

My own opinion regarding the scandalous draft law No. 5655 within the framework of the press conference on the topic "Urban planning reform. Did the authorities hear the architects?" shared by Julian Chaplinsky. He commented on the document from the point of view of his experience — from the executive architect to the owner of the company, and later — the chief architect of Lviv (2015–2019) and deputy minister of regional policy and housing and communal services (2019–2020).

Julian Chaplinsky: I believe that I have the right to judge this side of urban planning from different points of view. When you are a performer, you have one view, when you are a person on the other side of the camp, you have different impressions. And I would like to support architects in the fact that when a draft law on such an important industry is being written, it is necessary, first of all, to interview all circles of society that are users, and at least show transparently who represents the interests of these circles.

Now it cannot be said that everything is bad in this law. The goal of the reform is also to digitize and publish all materials as fully as possible — and this is bearing fruit. Remember the times when urban planning documentation was the subject of some kind of special access, when only deputies could go and see the local urban planning project, learn about the architecture some data that are not actually secret and should be made public to everyone. I remember the time when activists wrote thousands of information requests to security agencies, only to wait a week or two for data from the usual zoning and master plan. That is, it is all in the past. This is very good and we recognize it.

We want to emphasize that there is no political sub-base behind us. We are now speaking exclusively from the position of professionals. But the field of urban planning and simply a procedure are not the same thing. We are for procedures, for cleanliness, for transparency, for people — activists, journalists, and ordinary concerned residents — to be able to calmly open the Internet from their tablet, phone, or computer and familiarize themselves with comprehensive information about what is being built, what is planned to be built, who is responsible for this or that building.

"If we ask the population of cities about what worries and worries them the most now, everyone without exception will say: we are worried about chaotic construction"

But the fundamental thing is that, really, this bill is not about cities, not about communities, not about the quality of architecture. And what was already in the previous edition of the Law of Ukraine "On Regulation of Urban Planning" is the actual throwing out of the subject of architecture. There was talk of cities issuing conditions and restrictions rather than issuing permits under the guise of fighting corruption. Now this process is getting worse, the number of urban planning conditions and restrictions is still decreasing, cities and communities will continue to receive surprises in the form of incomprehensible facades, when developers paint one rendering on a billboard, and the city receives something else. This is the main point. If we ask the population of the cities about what worries and worries them the most, everyone without exception will say: we are worried about chaotic construction. Chaotic in the sense that it is random, different in its superficiality, it is not clear where it appears.

People may not know all the features of the design - in terms of zoning, detailed plans of territories or approval procedures for this. They just don't want chaos. They cry out to the mayor, representatives of local self-government: "do something!" And the mayors cannot do anything, because a year ago they issued two conditions and restrictions - the height mark and the percentage of development. The mayor does not know what color the facade will be painted, what material the building will be made of, or what shape will be planted on the site - whether it will be a circle in plan, or a parallelepiped, or an ellipsoid - all this is decided by the developer and his designers.

And in fact, the cities are opposing this, and we are told that we need to continue to push business forward, we need more construction cranes, because it pushes the economy forward. Actually, as a person who worked in local self-government and heard people every day, I can say no! Our cities are not only construction, not only cranes on the horizon, it is primarily the peace and satisfaction of the population. And if there are cities that do not want large construction, they have the right not to have this construction. They would have the right to decide this at the level of development of urban planning documentation, before creating a task for one or another documentation, and not later, as it is now.

Transparency is yes, but in my opinion, apart from the fact that these documents will be published, this draft law does not add leverage for communities. I am very concerned that instead of making it easier for people to access and start educating them, because they need to be involved, we are being told that they are not experienced enough to make decisions.

I constantly hear the leitmotif that there is corruption there. But corruption is probably cured by law enforcement agencies. Now the authorities have every opportunity to put their chiefs in law enforcement and anti-corruption bodies, to make several appointments — and maybe there will be no corruption on the ground? Why are we changing the entire industry in order to destroy some alleged corruption there? All these things do not seem to me to deepen decentralization, but on the contrary, to centralize processes.

If we talk about the Ministry of Regions, the Urban Planning Chamber, which is formed on some random basis, then it will be a corruption monster that will take away or issue certificates to planners. It's a total disaster. I think that this completely contradicts the policy that was declared earlier - about the deregulation of all spheres, the maximum transfer of powers to the localities. Suddenly, now we are building a kind of pyramid of Cheops, from which every construction in every city of Ukraine will be judged. It seems to me that this is a return to worst-case scenarios.

 

Oleksiy Shemotyuk: "This is not a reform, but a change of beneficiaries of the current corrupt permit system"

Not only press conferences and round tables, but also protest actions - an initiative group was formed in the architectural community, whose activists promise to "provide a toxic environment for the toxic draft law No. 5655." Architect Oleksiy Shemotyuk explained to PRAGMATIKA.MEDIA what exactly caused such a strong negative reaction.

PRAGMATIKA.MEDIA: After protests, the authors of the draft law removed the most controversial point about the architect's copyright. But despite this, the architects are ready to take part in new protests. Which of the provisions of the draft law cause such rejection?

Oleksiy Shemotyuk: With regard to draft law No. 5655, I present my position in the following logic: we have the text of the draft law in the redaction after its adoption in the first reading, so I will analyze this document in particular. We do not know in what form it will appear in the parliament hall and what amendments will be made in the hall before the vote, so I see no point in discussing it. For the sake of objectivity, I will add that more than 5655 amendments were made to draft law No. 2000, which must be considered by the Verkhovna Rada subcommittee. For the analysis of the draft law, I will use the explanatory note to it, the conclusion of the NAKC and the conclusion of the Chief Scientific and Expert Department of the Apparatus of the Verkhovna Rada as profile documents regarding legal expertise.

Therefore, the declared goal of the draft law is: "to ensure the implementation of the reform of state regulation in the field of urban planning activities by reducing corruption risks in the provision of administrative services, <...> building a transparent and effective system of urban planning control and state urban planning supervision, <...> strengthening control over spontaneous construction by executive bodies village, settlement, city councils, improvement of norms on responsibility in the field of urban planning" (paragraph 2 of the explanatory note to it).

What changes are proposed:

1. Narrowing of the powers of territorial communities to monitoring functions with missing mechanisms for the implementation of detected violations.
   This is the torpedoing and destruction of the decentralization reform.
2. Concentration of powers for control, arbitration, certification and punishment of developers and other subjects involved in the creation of an architectural object in a newly created body under the Ministry of Regions, the so-called City Planning Chamber. It also goes against the decentralization reform. Mrs. Shulyak, as the main lobbyist of this draft law, argues for such a step by the fact that it will supposedly reduce corruption risks. But since when did the Ministry of Regions become a model of transparency and honesty? The authors do not provide explanations for this issue.
3. Legal exclusion of the architect from the legislative field, as a subject of the creation of an object of architecture by removing most of the articles in the Laws of Ukraine "On architectural activity" and "On the basics of urban planning". The glossary, definitions of the functions of the architect, the customer, design tasks, etc. have also been removed. Instead, such a subject as a design engineer, who acquires the right to independently design an architectural object, conduct author's supervision and sign the act of putting the object into operation, is filled with new powers. This means that any architectural object can be designed by a person without an architectural education, professional competences in the field of architecture and a qualification certificate for volumetric design. Moreover, the developer can change such project authors like gloves, not limited by anything other than his commercial interest.
4. Mandatory, legally established procedure for transferring property copyrights to an architectural object at the time of signing the contract at the very beginning of the design. This is done so that the developer at any stage of the design has the authority to replace the architect, if he does not succumb to pressure and new requirements, as well as to change the customer.
5. A legal basis for the organization of private subjects of urban planning control is being created. That is, any developer who has the financial capacity can create his own pocket body of urban planning control, which will turn a blind eye to everything that the owner of such a subject of urban planning control wants.
6. An exhaustive list (5 items) for unscheduled inspection of the construction site is introduced. At the same time, the community loses its subjectivity in this process. That is, he is deprived of the right to initiate such an inspection even under the conditions of obvious violations.

PM: Do the shortcomings of the draft law seem obvious not only to you personally and to your associates?

O. Sh.: In support of my position, I quote from the conclusions of state expert legal bodies. From the conclusion of the Apparatus of the Verkhovna Rada: "Regarding the changes to the Law of Ukraine "On the Basics of Urban Planning", we believe that under these conditions the law loses its systemic character, and its provisions become fragmented and do not ensure the proper level of legal regulation of relevant social relations."

From the conclusion of the National Agency for the Prevention of Corruption: "According to the results of the review of the draft law, the National Agency identified corruption-inducing factors that lead to the need for its revision in order to guarantee a transparent system of urban planning control and state urban planning supervision, as well as the implementation of the reform of state regulation in the field of urban planning activities by reducing corruption risks...".

And also: "...the creation of the Urban Planning Chamber according to the proposed model contradicts the key approaches in the organization and activity of the central executive bodies of Ukraine, which creates numerous conditions for the implementation of corruption risks in the implementation of state urban planning supervision."

And, in fact, the conclusion of the NASC: "The draft law contains corruption-inducing factors and needs to be revised taking into account the given recommendations."

PM: In your opinion, what are the consequences of the adoption and implementation of the draft law without appropriate amendments?

O. Sh.: Systematically analyzing the proposed reform in urban planning, which is implemented through draft law No. 5655, one can see a violent unilateral change of the existing social contract regarding the creation of the urban environment in favor of private capital at the expense of the rights and powers of society. The result of such actions will be a significant deterioration of the quality of the urban environment and an increase in social tension in society. Local community conflicts with isolated cases of pirate construction in cities will seem like delicate flowers compared to the conflicts that will be caused by the adoption of this toxic bill. And the main target of these conflicts and the main "beneficiary" of this toxicity will be the current government.

I think that we are not talking about any real reform in the field of real estate creation. This is a banal redirection of the colossal shadow financial flows in this industry and simply changing the beneficiaries of the current corrupt permit system.

"Local community conflicts with isolated cases of pirate construction will seem like delicate flowers compared to the conflicts that the adoption of this bill will cause"

If our demands are not taken into account and the draft law is voted on in the second reading, we will appeal to the President of Ukraine to veto draft law 5655, reporting the toxic consequences of such a "reform". If they do not listen to us there, we will be forced to rally interested deputies in order to register in a separate bill amendments that will balance the interests of the community and capital.

The finalization of the amendments will also involve the conclusions and specialized experts from the NAKC and the Main Scientific Expert Department of the Apparatus of the Verkhovna Rada of Ukraine. Since the main ideologue of the draft law has recently been the head of the presidential party, we are forced to involve influential subjects outside the Ukrainian state institutions.

We will also:

• convey all the risks of the draft law to society from all possible media platforms;
• appeal to the Constitutional Court, as this draft law violates a number of articles of the Criminal Code;
• to hold direct actions throughout Ukraine involving not only architects, but also a wide range of people;
• appeal to international institutions and report all corruption and other risks of this draft law;
• form a broad coalition of all market participants to combat discriminatory and corrupt provisions.

 

Ivan Yunakov: "We need to "slap this rock" and not give up"

What do architects in the status of people's deputies think about the draft law
No. 5655? Do they share the fears of their colleagues from the Architectural Chamber of Ukraine, or do they defend the proposals of lawmakers, colleagues from the party? People's deputy Ivan Yunakov was asked a question.

PRAGMATIKA.MEDIA: Could you list the strengths and weaknesses of draft law No. 5655?

Ivan Yunakov: This draft law is extremely important for the successful implementation of the urban planning reform. Among the strengths, I would include the further digitalization of processes for maximum transparency and convenience, the issue of permit procedures. Some things are written in the law in extremely detailed and reminiscent of instructions — this will avoid cases of different interpretations of the law, groundless refusals or registration of those permits that should not be registered. The emergence of private inspectors from urban planning control is a certain breakthrough. These are things that exist throughout the civilized world. And we are gradually moving in the right direction, reducing the state's monopoly on urban planning control. There should be balance and responsibility in the industry, everything should be transparent and without corruption.

Regarding the items that still need to be finalized, this is the issue of the rights of architects, as well as the issue of urban planning supervision and the activities of the Urban Planning Chamber. But these are the questions we work on between readings and find the right models, involving all stakeholders.

PM: Is hypervigilance over the industry justified by the Ministry of Development of Communities and Territories of Ukraine (Minregion)?

I. Yu.: The bill really provides for an increase in the powers of the Ministry of Regions. Some of them do not belong to the ministry at all, because according to the strategy of public administration reform, it should deal exclusively with policy formation, not its implementation, that is, it should develop by-laws, order and approve building regulations, standards, in a word, create the rules of the game on the construction market , rather than being just another player. If we talk, for example, about the function of supervision, then the ministry, first of all, does not have the personnel resources to carry out so many supervisory measures. And secondly, the ministry does not have territorial divisions that would work throughout Ukraine. It is difficult to imagine how the Ministry of Regions will supervise construction in Mykolaiv or Chernivtsi regions.

PM: According to the explanations of the authors of the draft law, the role of "entering the site where construction is being carried out in violation" is assigned to local self-government bodies. And if the CSOs ignore the violations? Who and how will control their inactivity? And how to punish?

I. Yu.: This is a matter of supervision. And the effectiveness of such measures will depend on who and how it will be carried out. If the local authority ignores illegal construction on its territory, then they should come to it with an inspection in the order of supervision. If we talk about punishment, then my position remains unchanged. We need personal responsibility of each participant in the process. There should be less of all these collegial bodies, "licensing commissions", "advisory councils" - only the names of specific officials and their electronic signatures. An electronic system is needed for this - it is immediately visible who did or did not do what and when exactly. Everyone sees everything. Then it is clear who is responsible and who should be punished. This is transparency.

PM: The phrase "you will never put the object into operation" does not scare anyone. Developers continue to build floors despite court injunctions, and small "investors" calmly make repairs in apartments of such buildings and even rent out apartments. Who and from which reserves should allocate resources for the dismantling of objects erected in violation? If a decision is made to dismantle the building, how will compensation be paid to the owners? Can the reform change the situation?

I. Yu.: It is worth understanding that you cannot be the owner of an apartment in a building that is not put into operation. The same as connecting a house that has not yet been rented to the networks. Therefore, with property issues, investors should first of all contact the developer. Buying a home under construction is an investment with its own risks.

"We are, rather, "expert lawyers" - specialists who understand the industry in practice"

If we talk about dismantling, then the costs should fall on the shoulders of the customers of such construction. Its "ideologist" must pay for the dismantling of spontaneous construction. And local government authorities will be empowered to recognize such objects as spontaneous construction and independently make decisions regarding their demolition. This is the only way to prevent "self-construction" at the foundation stage, not the 20th floor.

PM: According to many of your architect colleagues, you represent the "architectural lobby" in the Verkhovna Rada. What steps are you taking to "polish" the bill?

I. Yu.: "Architectural lobby" is not quite the right wording. Among the 420 deputies, there are only two architect deputies — Hanna Bondar and me. Even within our committee, this is not the number of votes that can globally influence the final decisions. Therefore, we are rather "expert lawyers" — specialists who understand the industry in practice, know how it works, what problems there are, and how they need to be solved. We are ready to defend certain positions, for example, copyright or urban planning supervision.

Moreover, it is necessary to understand when and which defense and negotiation tool to "turn on". My approach is that it is necessary to explain one's position methodically, constructively and necessarily with respect for the opinion of others, to present real arguments. It is necessary to "slap this rock" and not give up. This is the only way to convince even staunch opponents. It is thanks to this approach that we, for example, have already solved the problem of the transfer of copyright property rights during budget purchases at the subcommittee. And we continue to work.