About city planning law

Irina Izarova

About city planning law

2012

Irina Izarova

D ep artm en t of Civil and Labour Law

The Vadym H etm an Kyiv N ational Economic U niversity

About city planning law

City plann in g is certainly a special sphere of h u m an activity, c h a ra c te ri­ zed by strik in g features. In our opinion, it should be noted on th e ratio of p rivate and public in te rests in th e im plem entation of u rb a n developm ent. W ithin th e city plan n in g upon th e condition of public in te re st existence m ay be neglected p riv ate in te rests, in particular, m ay be held ransom and w ith ­ draw al of lands th a t are p rivately owned. B ut one-sided view on th is pro­ blem is superficial, since m any exam ples can illu stra te how private in te rests prevail over th e public, p articu larly in building new bridges in Kiev, the expansion of tra n sp o rt u n its, etc. H erew ith extrem ely im p o rtan t w eight has th e definition of th a t common goal and ways for its achievem ent it in the process of u rb a n developm ent, a crucial supplem ent to which m ay become a new city planning bru n ch of law.

Admittedly, legal rules have necessary an d decisive im pact on p a rtici­ p a n ts of social relations, providing th e ir su stain ab le an d effective movement. Singling out th e set of legal rules governing relations in city plan n in g from oth er areas of law will help to organize th em and identify prom ising areas of developm ent. Consequently, town plan ning law will be one of th e complex areas of law w itch subject consists of legal rules o th er fields - civil, land, ad m in istrative and so on.

It is absolutely necessary to recognize th e form ation of a single codified act in u rb a n planning - U rb an P lan n in g Code of U k raine th e draft of which was adopted as a basis J u n e 30, 2010, as th is will give a stable foundation for th e operation an d fu rth e r developm ent of relev an t rules of law, stre n g ­ th e n regulation of these relations.

City p lanning law is characterized by a p a rticu la r subject of legal reg u la ­ tion, u n d e r w hich we can u n d e rsta n d social relations th a t occur in city planning a t th e forecasting, p lan nin g an d organization design and construc­ tion of settlem ents.

As a m ethod of legal regulation, it should be noted th a t in city p lanning are applied im perative an d dispositive m ethods which featu res and ratio to

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relation s in u rb an plan n in g is a m ain featu re th a t is p eculiar for th is b ranch of law, because they lim it property rig h ts in order to ensure effective im ple­ m en tatio n of city planning.

Adoption of th e principles of u rb a n plann ing rig h ts helps to define its guiding principles, w hich embodied th e basic ideas of its functioning, as well as directions for fu tu re developm ent. The basic principles of u rb an planning, of course, should be accept the principles of p reservation and en rich m ent of th e arch itectu ral and historical heritage of our nation, en suring th e norm al efficient developm ent of settlem en ts u n d e r consideration th e in te rests of all residents, and ensure th e prio rity of environm ental safety an d others.

In sum m ary, we would like to note th a t th e allocation of u rb a n are a of law in th e domestic system of law is an im p o rtan t step th a t will lead to the revival of fund am en tal research in th is b ran ch on which base is appropriate to m ake a com prehensive law reform in city planning. City planning law, tak in g into account th e above m entioned, can be defined as se p ara te b ran ch of law, which is a set of legal rules governing relations in the city p lanning to create and m ain ta in a full environm ent of h u m an livelihoods, to coordination of state, public and p rivate in te rests in p lanning and building of settlem ents.

Recently in th e scientific com m unity h as been discussed th e form ation of a new field of law - th e city planning law. N early te n years ago, a great architect, academ ician I.M. Sm olyar raised questions about th e necessity of form ation of complex in stitu tio n th a t would keep uniform rules of law th a t govern relations in city p lanning and in his m onograph he allocated for the first tim e object, m ethod and stru c tu re of the new u rb an field of law 1. A fter th a t began th e active discussion about th e need and feasibility of th e form a­ tion of this new field of u rb an law. And we would like to join it.

Q uestions about th e origin of city plan ning law were researched by such scholars as I.M. Smolyar, O.P. Anisimov, N.G. U shkova, S.O. K uznetsova and o thers whose works becam e th e base for our research, th e basis becam e g eneral theoretical works of S.S. Alekseev, A.B. Vengerov an d V.S. Nerse- syanets.

D uring th e research we w an t above all to find out th e necessity and possibility of selection of u rb an law as a sep arate b ran ch of law in U kraine, as well as define th e subject and its m ethod of regulation and other reasons to select a specific field of law.

The question of th e necessity and feasibility of a separatio n of a new field of law in th e legal system of U k raine is very im p o rtan t and requires rigorous a tte n tio n of academics. O.P. Anisimov p e rtin en tly notes th a t when we se p ara te th e field of law we should th in k about th e features aspects of life, w hich h as a clearly defined q u alitative specificity and social im portance

and a large num ber of legal norm s th a t do not fit into any of th e trad itio n al branches of law 2. U rban planning, of course, is such a re a of h u m an activity, which is characterized by strik in g features.

But, above all, in our opinion, it should be noted about th e relationship betw een private and public in te rests in th e im plem entation of u rb a n deve­ lopm ent, p articu larly u n d e r th e Act of U krain e “About F u n d am en tals of U rb an D evelopm ent” are defined order an d grounds for exclusion of lands identified for fu tu re developm ent of settlem ents, construction of concrete places, objects3. Thus, by th e im plem entation of u rb a n developm ent private in te rests m ay be neglected if th ere are public in terests, in particular, m ay be held ransom and confiscation of property th a t is privately owned. U nilateral view on th is issue is wrong, since m any exam ples can illu stra te how private in te rests prevail over th e public, p articu larly in building of new bridges in Kiev, th e expansion of tra n sp o rt un its, etc. B ut society should be ensu red in availability of the possibilities to solve u rb a n problem s th ro u g h private pro­ perty and the feasibility and need for its rem oval and in case of achieving th e opposite effect should arise a question about th e m isuse and abuse of powers of relev ant bodies, which should be responsible. At th is crucial im por­ tance has d eterm ination of common goal and ways of its achievem ent in the process of u rb a n developm ent, a crucial supplem ent to which we can become a new u rb a n field of law.

We should also determ ine th a t legal rules are necessary an d th ey have a decisive im pact on p articip an ts of social relations providing su stainab le and effective m ovem ent. Therefore, th e definition set of legal rules th a t govern th e field of sim ilar relatio n s becam e the basis for the form ation of sep arate branches of law. Singling out th e set of legal rules th a t govern relations in city planning from oth er fields of law will allow organizing them and identifying prom ising areas of developm ent, to ju stify th e use of certain m ethods an d define th e basic governing principles of its functioning. Conse­ quently, city plan nin g law will be one of th e complex fields of law 4 which m eaning includes legal rules of o th er fields - civil, land, adm inistrativ e, etc. w hereby is realized th e regulation of u rb a n development.

Certainly, during discussions about the feasibility of th e form ation of u rb a n field of law m ay arise a question about selection of th e architectu ral law 5. D espite a ttem p ts to define th e arch itectu re law, we need to point out th a t u rb a n activities are only p a rt of th e arch itectu ral an d the term “arch i­

2 A. A nisim ov, N. U sh k o v a, C ity p la n n in g la w - a s a separate b ra n ch o f R u s s ia n la w , 2008, p. 2106.

3 A ct o f U k ra in e “A b o u t F u n d a m e n ta ls of U rb a n D e v elo p m en t” 16.11.1992, В щ ом осп Верховно! Ради Укра!ни 1992, no. 52, p. 683.

4 A. Vengerov, T heory o f S ta te a n d L a w , 2000. pp. 2 3 2 -2 3 3 . 5 A. B elom esiasev, T h e leg a l fram ew ork, o f a rch itectu re, 2006, p. 16.

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tec tu re ” includes not only th e activities b u t also a rt, th e la te s t of w hich does not requ ire legal regulation, th a t is why is necessary to determ ine th e basic relatio nships th a t form th e subject of u rb a n plann ing field of th e law - area of city planning. Admittedly, th e need for th e form ation of a sep arate b ran c h of law is not to resolve all m ore or less sim ilar social relatio n s, b u t to re g u la te effectively th ose s im ila r re la tio n s, w hich re g u la tio n re q u ire s a goal of th e ir im plem entatio n . The activity in city p lan n in g is a specific activity, w hich com bines th e in te re s ts of society an d every p riv a te person a n d is realized betw een defined p a rtie s a n d reg u la te d by th e huge num b er of chaotic ru le s of law, th a t p red eterm in es necessity to select a new field of law - city p lan n in g law.

N ecessary to acknowledge as essen tial th e form ation of a single codified act in city planning - U rb an P lan n in g Code of U kraine, th e d raft of which w as adopted as a basis J u n e 30, 20106, because it will give a stable founda­ tion for the functioning of th e applicable rules of law, stre n g th e n a legal reg u latio n of these relatio n s and en su re su stain ab le developm ent of new field of law.

E stab lish ed clauses of theory of law suggest th a t th e reasons for selec­ tin g a specific field of law are subject an d m ethod of legal regulation. O.P. Anisimov determ ines absolutely all reasons for th e sep aratio n of u rb an field of th e law: a large an d clearly expressed specific activity, m ethods, principles and sources, th e existence of in stitu tio n s th a t form th e system , an d specific concepts an d categories of u rb a n law as optional fea tu re s7. We fully agree w ith th e approach, b u t focus our atte n tio n on more tra d itio n al grounds for th e sep aratio n of a field of law: a subject and m ethod of legal regulation, as well as th e grounds as guiding principles of operation and development.

The subject of legal regulation is defined as social relations w hich req u ­ ire a legal reg ulation an d are characterized by following features including th e ir directivity, stab ility and certainty, im portance, and th e possibility of a control. These signs of social relations allow selecting of uniform set of legal rules to certain branches of law. City plann ing law is characterized by a p a rticu la r subject of legal regulation, u n d e r which you can im agine re la ­ tions th a t ap p ear in city planning an d betw een designated parties. City p lan n ing is a specific type of activity th a t m ediates th e relationship in fore­ casting th e developm ent of settlem en ts and territo ries, planning, construc­ tion and o th er use of territo ries, projection, construction of objects of city p lanning, construction of o th er facilities, reconstruction of historical towns while preserving th e tra d itio n al ch aracter of th e environm ent, resto ratio n

6 A vailable a t <h ttp ://z a k o n 1 .ra d a.g o v .u a /c g i-b in /law s/m a in .c g i? n reg = 2 3 7 6 -1 7 >. 7 A. A nisim ov, N. U sh k o v a, op. cit., p. 2112.

and reh ab ilitatio n of cu ltu ral heritag e objects, creation of engineering and tra n sp o rt in fra stru ctu re (Article 1 of th e Law of U kraine “About Principles of U rb an Developm ent”). The d raft U rban P lann ing Code of U k raine contains more detailed list of relations th a t rela te to u rb a n planning: creation of the docum ents for u rb a n planning, settin g mode of developm ent and other use of land areas identified for fu ture u rb an developm ent needs, th e organization of planning, construction and o th er use of areas and certain lands, choice of allocation of u rb an construction, identification of lan d for u rb an needs, p re ­ p aratio n of conclusions apropos th e applications (petitions) from n a tu ra l or legal persons about th e ir in tention of building lan d or a territory, developing and m ain tain in g an inventory of u rb a n settlem ents; s ta te control of p lan ­ ning, developm ent and oth er use of territo ries, estab lishing responsibility for violation of legislation during th e planning, construction and o ther use of territories, im plem entation of in te rn atio n a l cooperation in u rb an develop­ m ent, settin g and application of th e licensing of construction activity.

Clearly, th e listed activities have unique im portance in society and req u ­ ire rigorous a tte n tio n of public au th o rities, academ ics and community. All of th e above m entioned relationships can be divided into several groups, inclu­ ding th e ir direction of action: first - a relationship of forecasting, planning and organization of u rb a n planning, and secondly its relationship connected w ith th e design and construction of settlem en ts. Thus it is possible to id en ti­ fy th e legal relationships th a t are th e subject of city planning law.

Thus, we can identify th e subject field of u rb a n law - public m a tte rs th a t arise in city plan n in g relatively th e forecasting, p lanning and organization design and construction of settlem ents.

These relations occur only betw een designated p arties, herew ith the crucial fact is th a t those subjects are th e original basis for defining relations in city planning. According to Art. 4 of th e Law of U k raine “About Principles of U rb an D evelopm ent” th e subjects of u rb a n plan nin g are au th o rities, local governm ents, n a tu ra l and legal persons. These are bodies th a t execute the s ta te regulation of u rb a n developm ent - th e V erkhovna R ada of U kraine, C abinet of M inisters of U kraine, V erkhovna R ada and th e Council of M ini­ sters of AR Crim ea, local sta te adm in istrations, local governm ents and spe­ cial auth o rities on u rb a n developm ent an d architecture, o perating exclusive­ ly w ithin th e powers defined by section 2 of th e Law of U kraine “About Principles of U rban Developm ent”.

On th e m ethod of legal regulation as one of the reasons for th e selection of th e sep arate field of law, it should be noted th a t th e regulation of u rb an developm ent are in h ere n t several m ethods used only for regulation of re la ­ tions in th is area.

Overall, by th e regulation of social relatio ns are commonly used im p era­ tive an d dispositive m ethods, witch correlation and features of th e

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tion to relatio ns in u rb a n p lann in g are specific m ethods th a t are in h ere n t in u rb a n field of law.

Among th e special techniques of regulation, w hich are in h ere n t exclusi­ vely tow n-planning law an d relations th a t it conforms we should note the following: choice, rem oval and providing of lands for u rb a n developm ent needs identified by u rb an p lanning docum entation, settin g mode of use and building of lands, which provides fu tu re u rb a n activities; providing of u rb an conditions an d lim itations on building of lands; stopping of building, conduc­ ted in violation of u rb a n p lan ning an d individual objects in th e cases stip u la ­ ted by law, and can h a rm th e environm ent an d others.

Specific of regulatory properties of th is field is th a t m ost of in h eren t m ethods lim it property rig h ts to en su re th e effective im plem entation of u rb a n development.

At th is crucial im portance have th e guiding principles or grounds which m ethods w ithin are being used. So, th e next reason for th e selection of city p lan n ing law in th e dom estic legal system is the presence of specific princi­ ples of u rb an planning.

Adoption of the principles of u rb an law helps to define its guiding gro­ unds, w hich embodied th e basic ideas of its functioning, as well as directions for fu tu re developm ent. These principles of law can provide an ability to reg u late relations arisin g in th e field of u rb an developm ent efficient and equally including private and public in terests. It m u st be recognized th a t the field of u rb a n planning is so specific, th ere are private and public in terests, w hich determ ine th e specific purpose of u rb a n plann ing as an essential task.

The principles of law include u rb an and general legal principles, as well as those which in h ere n t in th is in d u stry exclusively. The la tte r can be id en ti­ fied am ong th e m ain fields of city planning, and basic requ irem ents accor­ ding to Art. 2 and 5 of the Law of U kraine “About Principles of U rban D evelopm ent”, in particu lar, th e principles of preservation and enrichm ent of n a tu ra l an d c u ltu ral heritag e in u rb an developm ent; historical continuity, th a t is to incorporate and preserve th e positive achievem ents of th e histo ri­ cal developm ent; having a legitim ate goal of developing of plan nin g object an d facilities of its achievem ent; complexity - synergies betw een all compo­ n en ts of developm ent (functioning) of u rb a n planning objects an d considera­ tion of perspectives; providing prio rity to environm ental safety requirem ents durin g th e p lanning an d developm ent of territo rie s and other.

Principles of law are th e borders, w hich should form an in teg ral system of legal rules to ensure appropriate and effective regulation of public re la ­ tions. W hat should be recognized as th e fu n d am en tal principles of u rb an planning? Clearly, principles of preserv ation and enrichm ent of th e architec­ tu ra l and historical h eritag e of our people, th a t is one of the m ain ta sk s of each next generation, b u t along w ith should be recognized th e fu ndam en tal

principles of u rb a n p lanning and en su re th e norm al developm ent of efficient settlem en ts u n d e r consideration th e in te rests of all residents, and to ensure a priority of environm ental safety. These questions can only be updated w ithin th is article, recognizing th e principles as necessary grounds for the sep aratio n of th e field of city plan n in g law, b u t th e ir fu rth e r d etailed in vesti­ gation rep resen ts a huge scientific in terest.

M ust surely be accepted th e principles of u rb a n law as its governing defining ideas th a t sep arate th is field of law from all others, determ ine the direction of developm ent and functioning of its provisions. The questions about city planning principles of law are im p o rta n t and prom ising, and a need to consolidate th e ir reg u lation in the c u rre n t legislation - undoubted.

In sum m ary, we would like to note th a t th e sep aratio n of complex u rb an field of law in the dom estic system of law is an im p o rta n t step th a t will lead to th e revival of fu n d am en tal researches in th is a rea for w hich it would be reasonable to reform reform ation of u rb a n planning law. City p lan nin g law, tak ing into account the above m entioned, can be defined as a complex field of law, which is a set of legal rules governing relations in the field of u rb an planning to create and m ain ta in a full-fledged h u m an environm ent, the coordination of sta te , public and private in te re sts in planning and building of populated territo ries.

It should be recognized th a t th e allocation of a se p a ra te b ran c h of u rb a n p lan n in g law will give significant im p e tu s to th e developm ent of legal researches and im provem ent of c u rren t legislation in u rb a n planning and architecture.

S tr e s z c z e n ie

O p la n o w a n iu p rze strzen n ym

W środow isku naukow ym o statnio dużo się mówi o nowej dziedzinie praw a - praw ie planow ania m iasta. Chcielibyśmy dołączyć do tak ich uczo­ nych, ja k I.M. Smolyar, O.P. Anisimov, N.G. Ushkova, A. Bielom esiasev i uzasadnić celowość tw orzenia takiego praw a n a U krainie. W trakcie badań chcemy przede w szystkim nagłośnić możliwość w yboru urb an isty k i jako od­ rębnej gałęzi praw a, a także określić przedm iot, sposób jego regulacji p raw ­ nych i podstawowe zasady alokacji.