Position of the Ukrainian Association of Developers on the draft decision of the Kyiv City Council on the preservation of buildings over 100 years old

"We are convinced that any changes in the regulation of the construction industry should be reasonable, necessary and understandable, without creating additional obstacles to business activity and investment in the development of the capital.

The Association emphasizes its readiness for a constructive dialogue and joint work on improving the draft decision to ensure a balance between the protection of cultural heritage and the promotion of the city's development," Yevhen Favorov.

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The Ukrainian Association of Developers expresses its position on the Draft Decision of the Kyiv City Council "On Certain Measures for the Preservation of Buildings and Structures, the Year of Construction of Which is More Than 100 Years Old in Kyiv" (No. 1398 of 16.09.2024) (hereinafter - the Draft Decision, the Decision).

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I. Adoption of the Decision will worsen the investment climate of the capital and hinder the development of entrepreneurship.

First and foremost, we emphasize that the complication of the procedure for obtaining any permit necessary for doing business in Kyiv worsens the investment climate in the capital and impedes the development of entrepreneurship.

In this regard, such changes must be justified, necessary and understandable.

In spite of this, the Draft Decision provides for the need to obtain an additional document not previously provided for by the Kyiv City Improvement Rules - a decision of the Advisory Council on the Protection of Cultural Heritage of the Department of Cultural Heritage Protection of the executive body of the Kyiv City Council (Kyiv City State Administration) (hereinafter referred to as the Decision).

It should be clarified here that the Procedure provides that a number of actions precede the adoption of this Decision, including the conclusion of an agreement with the developer of the relevant accounting documentation. Moreover, the Procedure does not directly regulate the timeframe for some of these actions. For example, the deadline for the Advisory Board to make a Decision is from the date of receipt of the accounting documents.

All of this makes it much more difficult for owners/users of buildings and structures that were built more than 100 years ago to carry out the work required by the Kyiv City Improvement Rules.

Separate attention should be paid to buildings and structures that have already received initial data (urban planning conditions and restrictions) or other permits (construction permits). In such cases, the need to obtain additional documents significantly increases the cost of the already agreed investment project budget.

This kind of unpredictability and inconsistency in the actions of the state, represented by its authorized bodies, undermines the confidence of both existing and potential investors.

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II. The draft decision provides for the transfer of obligations of the authorized bodies to the owners/users of buildings and structures.

The Law of Ukraine "On the Protection of Cultural Heritage" (hereinafter referred to as the Law), which is referenced in the Draft Decision, does not distinguish and, accordingly, does not define "buildings, structures, the year of construction of which is more than 100 years old".

For example, according to the Law, the key to classification as cultural heritage is "value from an archaeological, aesthetic, ethnological, historical, architectural, artistic, scientific or artistic point of view", and not "year of construction", as provided for in the Draft Decision.

As for the Procedure, as mentioned above, it provides for a separate algorithm for identifying immovable cultural heritage sites.

• п. 2.1. Procedure: the identification of immovable cultural heritage objects and the preparation of relevant accounting documentation for them are provided by authorized bodies, as well as district state administrations, executive bodies of village, town, city councils in accordance with their competence in the field of cultural heritage protection, in particular, they perform the functions of the Customer and conclude contracts for the identification and research of immovable cultural heritage objects for their registration and subsequent state registration;

• п. 2.4 of the Procedure: employees of the cultural heritage protection body, UTOPIC, other public organizations whose statutory tasks include the protection of cultural heritage, scientific and cultural institutions in the field of cultural heritage protection, qualified practitioners of the relevant specialization (archaeologists, architects, historians, art historians, etc.), public inspectors for the protection of cultural heritage have the right to submit to the relevant cultural heritage protection body a proposal to identify a cultural heritage object by means of an

• п. 2.5 of the Procedure: the cultural heritage protection authority shall review the Card within 10 working days from the date of receipt of the Card, conduct a check on the legal status of the submitted object. If the submitted object does not have the status of a monument or a newly discovered cultural heritage object, the authorized body decides whether or not the object is classified as an immovable cultural heritage object and whether it is necessary to draw up an inventory card for it. A reasoned decision based on the results of the review is provided to the applicant within 5 business days from the date of its adoption;

• п. 3.1 of the Procedure: for an object discovered in the course of research and for which a card has been submitted to the cultural heritage protection authority, accounting documentation is drawn up as part of the registration card in the form given in Annex 2 to this Procedure, to which a brief historical note and photographic documentation are attached;

• п. 4.1 of the Procedure: the registration card for an immovable cultural heritage object, together with a cover letter, is submitted to the cultural heritage protection body whose powers extend to the territory of the immovable cultural heritage object for submission to the Advisory Board.

In other words, according to the Procedure, the submission of an accounting card for an immovable object is preceded by a decision by the authorized body in respect of such an object to classify or not classify the object as an immovable cultural heritage object and to draw up an accounting card for it.

In turn, obtaining a decision on whether or not an object is classified as immovable cultural heritage and the need to draw up an accounting card for it is possible only upon submission of the card, which can only be drawn up and submitted by certain entities, including owners/users of buildings and structures.

Moreover, the identification of cultural heritage sites is the right of the relevant entities. It is binding only in the context of "authorized bodies, as well as district state administrations, executive bodies of village, town and city councils".

Thus, the Draft Decision provides for the transfer to the owners/users of all buildings and structures, without exception, whose construction year is more than 100 years old, of the responsibilities of authorized bodies. This means the obligation to ensure the identification of immovable cultural heritage objects and the preparation of relevant accounting documentation for them, in particular by performing the functions of the Customer and concluding contracts for this purpose.

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III. The ban on work in 100-year-old buildings and structures, which is indirectly provided for in the Draft Decision, contradicts the law.

Pursuant to Article 19 of the Constitution of Ukraine, state authorities and local self-government bodies and their officials are obliged to act only on the basis, within the limits of their powers and in the manner provided for by the Constitution and laws of Ukraine.

As of today, according to the current legislation, only preparatory and construction works that do not comply with the requirements of the law, building codes, urban planning conditions and restrictions, approved project or construction passport for the development of a land plot, and are performed without acquiring the right to perform them are subject to suspension (paragraph sixteen of part one of Article 41 of the Law of Ukraine "On Regulation of Urban Development").

The current Ukrainian legislation does not define the term "buildings and structures with a construction date of more than 100 years and does not prohibit work in such buildings and structures (except for general restrictions for all buildings and structures).

Thus, the ban on construction works indirectly provided for in the Draft Decision is illegal. This is especially true for those construction works for which permits have already been obtained.

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IV. The Draft Decision violates the right of owners to free possession, use and disposal of their property as provided for by the Constitution of Ukraine.

Particular attention should be paid to the provision relating to liability for damage or destruction of buildings and structures that were built more than 100 years ago and do not have the status of a cultural heritage site and the obligation to restore them to their original condition at their own expense.

The essence of such a provision contradicts Article 41 of the Constitution of Ukraine, which provides that everyone has the right to own, use and dispose of their property.

The restrictions provided for by the Law of Ukraine "On Protection of Cultural Heritage" apply exclusively to newly discovered cultural heritage sites and cultural heritage monuments. No separate status for "buildings, structures, the year of construction of which is more than 100 years old" The Law of Ukraine "On the Protection of Cultural Heritage" does not provide for a separate status.

According to part ten of Article 59 of the Law of Ukraine "On Local Self-Government in Ukraine", acts of local self-government bodies and officials on the grounds of their inconsistency with the Constitution or laws of Ukraine are recognized as illegal in court.

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To summarize, we ask you to take into account the above objections in further work on the Draft Decision and, if necessary, to involve the Ukrainian Association of Developers in such work, in particular, to invite the Ukrainian Association of Developers to the meeting of the Standing Committee of the Kyiv City Council on Entrepreneurship, Industry and Urban Improvement, which will consider the Draft Decision.

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