Architectural and Construction Control During the Pandemic
The liquidation of the State Architectural and Construction Inspectorate of Ukraine (DABI in Ukrainian), as announced by the government, is one of the last year’s most expected events among construction people. This was due to public attention incited by illegal construction, construction scams, corruption scandals and high risks for business. To replace the old, inefficient structure, a plan was created to establish three central bodies: the State Service for Urban Development, the State Agency for Technical Regulation and the State Inspectorate for Urban Development. However, this has never been put into practice, and the ongoing lockdown slowed down the progress of reform and brought a number of changes and conflicts in legislation on the construction sector.
No Right to Inspect
For example, during the pandemic, the powers of the architectural and construction control authorities underwent many contradictory changes without giving a clear understanding to market players as to the lawfulness of inspections carried out by these bodies.
Initially, on 13 March 2020, the Cabinet of Ministers of Ukraine suspends Resolution No. 533 On Approval of the State Architectural and Construction Control Procedure prior to the new State Inspectorate for Urban Development (“DIM” in Ukrainian) coming into operation. As implemented by Resolutions No. 218 On Liquidation of the State Architectural and Construction Inspectorate and Amendments to Some Resolutions of the Cabinet of Ministers of Ukraine, and No. 219 On Optimization of State Architectural and Construction Control and Supervision Bodies.
As a result, territorial units of DABI and local self-government authorities were paralyzed. In fact, state architectural and construction control by local authorities was halted, and decentralization in this sector was partially wound down.
The sudden introduction of quarantine and restrictive measures in Ukraine related to COVID-19 slowed down the implementation of reforms. And for a while the construction industry basically carried on without any state control.
It was winter when Resolution No. 1339 of 16 December 2020, published on the website of the Cabinet of Ministers on 30 December 2020, resumed the operation of Resolution No. 553. Thus, local authorities once again received the right to carry out architectural and construction control and to counteract real and potential violations in construction.
It would seem that from now on there would be no obstacles to controls: inspections by architectural and construction control bodies were actually resumed in January 2021. However, it turned out that the inspectors who perform control and supervisory functions did not have relevant certificates that might cast doubt on the lawfulness of inspections. This is because the obligation of certification (introduced by the above Resolution No. 219 via amendments to the Resolution of the Cabinet of Ministers No. 554 of 23 April 2011) and the professional attestation of inspectors had not been cancelled. However, the procedure for such certification had not been developed, thereby making implementation of this provision impossible.
So, the construction industry of Ukraine had to carry on in this “ambiguity”, struggling further with the second lockdown which came later, until the end of March 2021. Finally, on 29 March 2021, the Cabinet of Ministers of Ukraine cancels, via Resolution No. 303 (in force from 6 April 2021) cancels the certification and attestation of architectural and construction control inspectors and stipulates that the DABI continues to exercise its powers and functions until such time that the State Inspectorate for Urban Development (DIAM in Ukrainian) is established.
Market of Hopes
All in all, pursuant to the newly-announced Concept of the Draft Law On Amendments to Certain Legislative Acts of Ukraine on Reforming State Regulations in the Field of Urban Planning, the control functions in construction will be distributed as follows:
- DIAM – control of the construction of СС3 class high-risk facilities, state secret facilities; facilities built at the expense of the state budget; architectural monuments.
- Legal entities of any form of ownership on a contractual basis – СС2 and СС3 class facilities (except for DIAM powers), СС1 (non-residential buildings).
- Local authorities will supervise all the facilities that have signs of unauthorized construction and control the construction of СС1 facilities (residential buildings).
These new approaches aim to minimize the corruption component and simplify all construction processes through automatization.
But this is still at the level of “future prospects”. As of now, the construction industry finds itself at an interim stage between the old DABI system and the new DIAM one, between the first and second stages of introduction of the electronic system in the construction sector.
We can say that, in fact, in the course of the entire “quarantine” period the construction industry was working without proper state control. So, while business is hoping for announced reforms and waiting for a document setting out clear rules of the game, lawyers have to search for answers: how to reduce the uncertainty and solve the problems of their clients in the current situation.
By Olena Shtohryn, Managing Partner at Dictio Law Firm