- News
- #standwithUkraine New
- Recovery Talks New
- Expert Opinion
(empowered by the UJBL) New - Interviews
- Editor's Preface
- League Tables
- Ukrainian Legal Market
-
Practice Areas and Industries Review
- AI Regulation
- Anti-Corruption
- Anti-Counterfeiting and Piracy
- Antitrust
- Asset Tracing
- Banking & Finance
- Bankruptcy
- Bilateral Investment Treaties
- Business Protection
- Construction and Development
- Criminal Process
- Economic Development
- Energy
- Financial Restructuring
- Financial Services
- Government Relations
- Green Recovery
- Industrial Parks
- Insolvency Disputes
- International Arbitration
- International Tax
- Investigations
- Investment
- IT Law
- Labor & Employment
- Litigation
- Marine Insurance
- Maritime and Shipping
- Mergers & Acquisitons
- Natural Resources
- Non-Governmental Organisations
- Patents
- Private Claims
- Real Estate
- Role of Experts in International Arbitration
- State Enterprises
- Tax
- Technology Disputes
- Third-Party Funding
- Trade Remedies
- Trademarks
- Transfer Pricing
- Unfair Competition
- Urban Planning
- White-Collar Crime
-
Who Is Who Rankings
- Agribusiness
- Antitrust and Competition
- Banking & Finance, Capital Markets, Debt Restructuring, Fintech
- Bankruptcy
- Corporate and M&A
- Criminal Law (including White-Collar Crime, Anticorruption, War and Military Crimes)
- Energy & Natural Resources
- Family Law
- Infrastructure
- Intellectual Property
- International Arbitration
- International Trade: Trade Remedies and Regulatory Compliance, Commodities, Cross-Border Contracts and Customs
- IT and Telecommunications
- Labor and Employment
- Litigation: Domestic and Cross-Border
- Military Law and the Defense Industry
- Pharmaceuticals & Healthcare
- Real Estate, Construction, Land
- Tax and Transfer Pricing
- Transport: Aviation, Maritime & Shipping
- Law Firms Profiles
- Lawyers Profiles
- Archive
Green Construction in Ukraine
The full name of legislative acts: Law of Ukraine No.1669-VIII On Introducing Amendments to Chapter X Transitional Provisions of the Land Code of Ukraine regarding Extension of Prohibition on the Alienation of Agricultural Land; Law of Ukraine On Financial Restructuring of 19 October 2016; Decree of the Cabinet of Ministers of Ukraine On Currency Regulation and Currency Control; Decision of the State Commission on Securities and Stock Market On Approval of the Regulation on Granting Permits for the Trade of Securities…;
Short name of legislative acts: Joint Stock Companies Law, Bankruptcy Law, Civil Code of Ukraine, Tax Code of Ukraine, etc.
Green Construction in Ukraine
In anticipation of the future post-war recovery of Ukraine, the concept of green construction can often be found in official policy documents and other materials prepared by the Government of Ukraine or other institutions or experts. For example, it is embedded in Ukraine’s Recovery Plan by the National Recovery Council, which is one of the major official initiatives in this area. The Recovery Plan and other policies refer to green construction among other priority trends and principles, such as “build back better”, “green economy”, etc.
However, despite its recognition and importance, green construction has no meaningful legal definition. The term itself is only defined for the purposes of planting green areas within the regular urban environment (Order of the Ministry of Construction, Architecture, and Housing-Communal Economy of Ukraine No. 105 of 10 April 2006 On Approval of Rules for Maintenance of Green Areas in the Settlements of Ukraine), which is obviously narrow and quite irrelevant definition in the current context.
The real meaning of green construction goes far beyond trees and gardens. It consists of the best practices, processes, technologies, materials, and other solutions taken to make construction projects and their further management environmentally friendly.
Ukrainian laws and regulations have not yet embraced this concept comprehensively. At the same time, with effect from 2023, the main requirements of constructed objects (as per article 7(2) of Law of Ukraine On Construction Norms No. 1704-VI of 5 November 2009) include certain relevant principles which essentially make up the green construction concept, namely:
- compliance with a broad range of health & safety requirements;
- ensuring no or minimal environmental impact, including control over emissions, etc.;
- minimizing disturbances caused by noise and vibration;
- energy efficiency;
- sustainable use of natural resources, including recycling, etc.
The above-mentioned general requirements for construction objects are expanded and transformed into specific technical requirements by way of incorporation into numerous state building standards (SBS, in Ukrainian – ДБН). SBSs are mandatory and must be taken into account at the design stage. The main SBSs, which are relevant to green construction principles, are as follows:
- SBS V.1.2-6:2021 “Basic requirements for buildings and structures. Mechanical resistance and stability”;
- SBS V.1.2-7:2021 “Basic requirements for buildings and structures. Fire safety”;
- SBS V.1.2-8:2021 “Basic requirements for buildings and structures. Hygiene, health and environmental protection”;
- SBS V.1.2-9:2021 “Basic requirements for buildings and structures. Safety and accessibility during operation”;
- SBS V.1.2-10:2021 “Basic requirements for buildings and structures. Noise and vibration protection”;
- SBS V.1.2-11:2021 “Basic requirements for buildings and structures. Energy saving and energy efficiency”.
There is an ongoing discussion among architects and technical specialists as to the need to further update and revise the above and some other SBSs and technical regulations to make sure they are up-to-date, etc. For example, one of the disputed topics is the missing technical regulation regarding sustainable and efficient use of natural resources in construction projects, which is one of the key principles as mentioned above. Furthermore, the needs and challenges caused by the ongoing war have a significantly impact on this discussion, eventually leading to extra complexity of design works in Ukraine.
There are other areas where green construction elements are already or should be implemented as well; some of them are summarized below.
Strategic Ecological Assessment
Strategic Environmental Assessment (SEA) is a procedure for evaluating the environmental impact of developing state planning documentation. In particular, the SEA is required to approve the city planning documentation which is mandatory for construction projects in accordance with Law of Ukraine On Strategic Environmental Assessment as of 20 March 2018.
In May 2023 significant amendments to the law came into force, which provide for (i) the creation of the Unified Register of Strategic Environmental Assessment and (ii) the addition of liability for offences in the field of SEA. The Unified Register is a platform for online publication of SEA documents, systematisation and unification of SEA documents that are available to the public online.
Failure to carry out a strategic environmental assessment is a ground for cancelling decisions on the approval of state planning documents, invalidating state planning documents; refusing to approve the modification of a designated land plot carried out on the basis of or in accordance with the relevant state planning documents.
Construction Materials
In the field of construction materials, Ukrainian legislation has substantially implemented EU Regulation 305/2011 (Law of Ukraine On Placing of Construction Materials to the Market, No. 850-IX of 2 September 2020). While this regulation is mostly procedural (which is outside of the scope of this article), one of its main effects is the harmonization of Ukrainian standards applicable to construction materials with EU standards. As far as green construction is concerned, this should facilitate access of progressive and environmentally-friendly materials and technologies from the EU to the local Ukrainian market.
Certain aspects of implementing EU Regulation 305/2011 are still in progress, as Ukraine still needs to revise or adopt a number of regulations at the lower level. Moreover, the novelties are still tested in practice, so that various hurdles are not excluded. It took over 20 years for the EU to adopt and implement this regulation, but Ukraine is trying to do the same within just a few years, including the past two years of martial law.
So as to facilitate adaptation of the market to the new regulation, the law provides for a transition period from the beginning of 2023 till the end of 2025. During this period, both old and new (European) standardization documents are permissible in Ukraine (in parallel), so that the new regulation does not cause immediate barriers to market entry, etc.
Construction Waste Management
On 9 July 2023, Law of Ukraine On Waste Management, No. 2320-IX came into force, initiating waste management reform in Ukraine to harmonise Ukrainian legislation with EU legislation. This law was adopted in accordance with Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives. It is a framework law establishing, among other things, obligations to:
- prevent waste generation;
- sort construction and demolition waste (the CDW), account and transfer it to waste management operators;
- re-use, recycle, and recover non-hazardous waste in another way.
The adopted regulations include the Waste Classification Procedure (approved by the Resolution of the Cabinet of Ministers of Ukraine No.1102 of 20 October 2023) and the National Waste List (approved by the Resolution of the Cabinet of Ministers of Ukraine No. 560 of 2 June 2023). The National Waste List corresponds with EU requirements in terms of waste classes. The main difference of the National List is the presence of the group “Waste generated in connection with the damage (destruction) of buildings and structures as a result of hostilities, terrorist acts, sabotage or liquidation works”.
This group of wastes is subject to a separate procedure approved by the Resolution of the Cabinet of Ministers of Ukraine No. 1073 of 27 September 2022. The management of waste from destruction does not require a special permit to carry out waste management operations during the period of martial law in Ukraine and within 90 calendar days after the termination or cancellation of martial law in Ukraine.
The issue of managing asbestos-containing waste has become particularly important as much of this waste is generated in connection with the damage (destruction) of buildings and structures caused by the war, where it is difficult to separate asbestos-containing waste from other materials.
In 2022, Law of Ukraine No. 2573-IX On the Public Health System was adopted which, among other things, banned the use of asbestos in construction. However, the main damage caused by asbestos is the formation of small fragments and dust inhaled by people during the destruction of asbestos products. At present, Ukrainian legislation in this area has not yet been brought into line with European legislation and still permits asbestos-containing waste to be disposed of in landfills together with household waste, covered with a layer of soil to prevent the spraying of small particles.
The Ministry of Environmental Protection and Natural Resources of Ukraine is currently working with international and national experts to develop regulations for the management of asbestos-containing and asbestos-contaminated waste.
Green Certification
Ukraine has no mandatory certification requirement as to the green status of construction projects or objects. However, a certain (not yet significant) number of buildings with LEED or BREEAM certificates can be found across the country. These certifications are market-driven, as they are deemed to ensure cost savings during operation and better investment attractiveness. Obtaining these certifications has not become common practice though.
Public Procurement
While public procurement is a heavily-regulated area, which was reformed a few years ago and, therefore, can be considered relatively up-to-date regulation, it does not pay much attention to environmental aspects. There are general provisions ensuring that environmental features of the tendered works or services, as well as measures aimed at protecting the environment, can be provided among tender criteria (Articles 23 and 29 of Law of Ukraine On Public Procurement, No. 922-VIII of 25 December 2015). The law does not set out further details of the above, leaving it for tender documentation to provide for the specific terms and conditions of a particular project.
The above fully extends to construction projects. Taking into consideration the fact that Ukraine’s future recovery is expected to be largely associated with public sector (especially, as far as infrastructure is concerned), this sets an effective ground for real practical implementation of green construction principles in major construction projects with public finance, provided that customers will be mindful to include such principles in their project requirements.
-
Oleg Boichuk
Partner, Asters
-
Viktoriya Demydenko
Counsel, Asters
Address:
Leonardo Business Centre,
19-21 Bohdana Khmelnytskoho Street,
Kyiv, 01054, Ukraine
Tel.: +380 44 230 6000
E-mail: info@asterslaw.com
Web-site: www.asterslaw.com
Asters is the largest full-service law firm in Ukraine with offices in Kyiv, Brussels, London, and Washington, D.C., and access to over 125 jurisdictions through a well-developed network of partner law firms.
Asters combines transactional, regulatory and dispute resolution practices, as well as deep insights into all key sectors of the economy. The firms’ lawyers regularly handle a variety of complex matters and the largest transactions for foreign and local blue chips, governments, state-run companies, investors, banks, international financial institutions and HNWI. Asters keeps operation during the full-scale invasion. It helps businesses to navigate through the legal environment during the martial law, accomplish their goals and overcome posed by the war challenges. The firm also advises pro bono with ovAer 7000 pro bono hours in 2022-2023.
Asters has consistently remained at the top of the Ukrainian legal market throughout its history being acknowledged as Ukraine Law Firm of the Year by Who’s Who Legal Awards (2018-2023), The Lawyer European Awards (2020-2021), Chambers Europe Awards 2020 and holds top positions in the most authoritative international market reviews: The Legal 500, Chambers Global and Chambers Europe, IFLR 1000, GAR, GCR, GRR, ITR World Tax, IP Stars, etc.