Текст книги "Правовая поддержка иностранных инвестиций в России"

Автор книги: авторов Коллектив

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Receipt of technical specifications for connection to public utilities

Receipt of technical specifications for connection of the planned facility to public utilities is required if the functioning of the construction facility is impossible without such connection.

Technical specifications envisage the maximum loading and the time schedule for connecting construction facilities to public utilities (electricity and water supply, sewage system, etc.). Information on the technical specifications, their term of validity and payment for connection are provided free of charge by the organisations responsible for the public utility networks within fourteen days of receiving a relevant request from local government bodies or the right-holders with respect to land plots.

Currently, in the Moscow Region, technical specifications are provided for connection to sewerage systems, water, gas, heat, hot water and electricity supplies, telephone lines, radio connections and so on.

Legal basis: article 48 of the Russian Town-Planning Code; Appendix 6 to TSN PPS-99 МО “Rules for pre-design and design preparation for construction in the Moscow Region”.

Issue by the head of the given district of a resolution agreeing to the location of the construction facility and permitting the performance of design and survey work

This resolution serves as grounds for:

• agreeing the location of the facility with the regional state authorities;

• receiving permission (a warrant) for performing engineering surveys;

• receiving the necessary technical specifications for connection to public utilities;

• receiving the architectural and planning assignment;

• elaborating the design documents.

Legal basis: section 3 of Appendix 5 to TSN PPS-99 МО “Rules for pre-design and design preparation for construction in the Moscow Region”.

Agreement of the facility construction project at the regional level

Agreement of the facility construction project at the level of a constituent entity of the Russian Federation (in our case, the Moscow Region) proceeds as follows:

1) issue by the Government of the Moscow Region of a resolution on implementation of an investment project for construction of a facility;

2) decision by the inter-departmental commission for town-planning regulation and organisation of the territory of the Moscow Region on agreement of the construction facility if location of the facility is not envisaged by the town-planning documents for developing the territory of the Moscow Region and (or) population centres and municipalities in the Moscow Region or in the absence of such documentation.

Legal basis: Procedure for considering investment project implemented or proposed for the territory of the Moscow Region (approved by Resolution of the Government of the Moscow Region No. 211/1 of 14 April 2004); Resolution of the Government of the Moscow Region No. 208/12 of 11 April 2003 “On Additional Measures of Town-Planning Regulation and Organisation of the Territory of the Moscow Region”.

Performance of engineering surveys

Engineering surveys involve studying natural conditions and human impact factors for the purpose of rational and safe use of territories and land plots. Engineering surveys are performed for the elaboration of design documentation, construction and reconstruction of facilities. It is not permitted to draw up and implement design documentation unless corresponding engineering surveys have been performed.

Legal basis: article 47 of the Russian Town-planning Code; clause 8.2 of the Law of the Moscow Region “Rules for Development of Towns, Urban Settlements, Rural Population Centres and other Population Centres and Recreation Complexes in the Moscow Region”; article 17 of the Federal Law of 8 August 2001 “On licensing of Individual Types of Activity”; Regulation on Licensing of Engineering Survey Activities for Construction of Buildings and Structures of Responsibility Levels I and II in Accordance with the State Standard” (approved by Resolution of the Government of the RF No. 174 of 21 March 2002).

Development of the construction project

A construction project consists of documentation containing materials in the form of text and of maps (charts) and determining the architectural, functional, structural and engineering solutions for the construction and reconstruction of facilities, parts thereof, and general overhaul, if it affects the structural and other reliability and safety parameters of construction facilities.

Legal basis: article 48 of the Russian Town-planning Code; article 17 of the Federal Law of 8 August 2001 “On Licensing of Individual Types of Activity”; Regulation on Licensing of Engineering Survey Activities for Construction of Buildings and Structures of Responsibility Levels I and II in Accordance with the State Standard (approved by Resolution of the Government of the RF No. 174 of 21 March 2002).

Agreement of a construction project

The Russian Town-Planning Code does not envisage agreement of the design documentation with state authorities and organisations before the expert examination. In practice, however, the current procedure will remain in force for some time yet. This envisages agreement of the design documents with, in particular, the following authorities and organisations:

• local authorities for architecture and town-planning, including, when necessary and in cases specified in the architectural and planning assignment (APZ), consideration by the Chief Architectural Department of the Moscow Region with respect to the acceptability of the architectural and planning solutions. At the same time, a check is performed to ensure that the design documentation fulfils the requirements and terms set out in the resolution of the head of the municipal unit and in the APZ;

• organisations issuing the technical specifications for connection to the public utilities, in the event of divergence from these specifications (receipt of new and amended technical specifications);

• the authorities that approved the state standards – in the event of divergence from the current state norms, rules and standards.

As a rule, the designer is responsible for getting the design documents agreed.

Legal basis: clause 5 of TSN PPS-99 МО “Rules for pre-design and design preparation for construction in the Moscow Region”.

Sanitary and epidemiological opinion on compliance with the norms and rules by the design documents for construction of the facility

Construction of facilities is permitted given the existence of sanitary and epidemiological opinions by the state sanitary and epidemiological inspectorate on compliance by such facilities with the sanitary norms and rules.

Legal basis: article 12 of Federal of the Law от 30 March 1999 No. 52-FZ “On the Sanitary and Epidemiological Welfare of the Population” Resolution of the Chief State Sanitary Inspector of the RF No. 88 of 30 April 2003; No. 34 of 8 April 2003; No. 38 of 10 April 2003.

State environmental examination of the construction project

State environmental examination of the construction project is performed in addition to examination of the location of the facility. Performance of expert examination of the construction project establishes compliance of the planned activities with the environmental requirements, i.e., prevention of any possible unfavourable impact on the environment.

Legal basis: article 36 of Federal Law от 10 January 2002 No. 7-FZ “On Environmental Protection”; article 12 of Federal Law от 23 November 1995 No. 174-FZ “On Environmental Examination”.

Performance of state expert examination of the construction project

The main aim of expert examination of a construction project is to prevent implementation of projects if their construction and use might infringe on the rights of individuals and legal entities or if they do not meet the requirements of the established norms and rules. During an expert examination, a check is made on compliance by the construction project with the benchmark data, technical specifications and the requirements on the design and construction of facilities, as previously issued by state supervisory and control authorities and interested organisations.

The functions of expert examination of a project in the Moscow Region are fulfilled by the Moscow Region state institution “Centre for State, Non-departmental Expert Examination and Price Formation in Construction” (Mosoblgosexpertiza).

A Mosoblgosexpertiza opinion consists of a comprehensive report taking into account the reports on specialised, departmental (if required) expert examinations, as issued by federal and territorial executive bodies authorised to perform such expert examinations.

A positive opinion contains a recommendation to approve the design and estimate documentation for construction of the facility. At the same time, it may include comments or proposals that must either be taken into account in the course of construction or the grounds for which must be remedied by a specific deadline, set in the opinion, before construction is launched.

Legal basis: Regulation on the performance of a state expert examination and approval of town-planning, pre-design and design preparation for construction in the Russian Federation (approved by Resolution of the Government of the RF No. 1008 of 27 December 2000); Resolution of the Government of the Moscow Region No. 188/21 of 22 June 2001; “Organisation of the performance of state expert examination of design documentation in the Moscow Region” (approved by Resolution of the Government of the Moscow Region No. 115/11 of 2 April 2002).

Approval of the construction project

The design documentation for construction of the facility is approved by decision of the developer (investor) or customer (construction manager).

Legal basis: clause 15 article 48 of the Russian Town-planning Code; clause 26 of the Regulation on the performance of a state expert examination and approval of town-planning, pre-design and design preparation for construction in the Russian Federation.

Receipt of a construction permit

A construction permit is a document confirming that the design documentation complies with the requirements of the legislation and permitting construction or reconstruction of a facility.

A construction permit is issued to the developer (investor) as a rule by the local government (administration of the given district).

Legal basis: article 51 of the Russian Town-planning Code; clause 6 TSN PPS-99 МО “Rules for pre-design and design preparation for construction in the Moscow Region”.

Registration of a construction facility

Before work is launched, construction facilities must be registered with the Gosarchstroinadzor authorities of the Moscow Region.

Legal basis: article 52 of the Russian Town-planning; article 9 of the Law of the Moscow Region of 19 October 2004 “On Organisation of State Architectural and Construction Supervision on the Territory of the Moscow Region”.

Receipt of a warrant to perform earthworks

The legislation of the Moscow Region prohibits all legal entities and individuals from performing any earthworks in the absence of a relevant warrant. A warrant to perform earthworks is issued directly to the construction contractor by the district’s chief architect.

Legal basis: clause 5 of TSN PZiSR-97 МО “Rules for Organising Construction and Performance of Earthworks on the Territory of the Moscow Region”.

Construction

The construction must be carried out by an organisation that holds a licence to construct buildings and structures of complexity levels I and II.

Legal basis: article 17 of Federal Law No. of 8 August 2001 “On Licensing of Individual Types of Activity”; Regulation on licensing of the construction of buildings and structures of responsibility levels I and II in accordance with the state standard (approved by Resolution of the Russian Government No. 174 of 21 March 2002).

Receipt of a permit to start up a facility

A start-up permit for a completed construction facility is a document certifying that construction work has been performed in full in accordance with the construction permit and that the finished facility complies with the town-planning and design documentation. The start-up permit is issued for a facility by the authority that issued the construction permit.

Legal basis: article 55 of the Russian Town-planning, Territorial Construction Standards TSN 12-310-2000 of the Moscow Region (TSN PEON-2000 MO) “Acceptance for exploitation of completed real estate facilities on the territory of the Moscow Region”.

Section II
Problems encountered by foreign investors

A. Goltsblat, Managing Partner Pepeliaev, Goltsblat & Partners

Land for an investor: certain aspects of legal regulation

The majority of legal issues arising during the first stages of an investment project are connected precisely with land relations. Correct application of the rules of the land legislation lays the foundations for successful development of the entire project. The fate of the whole enterprise largely depends on how competently the lawyers handle a land transaction.

The enactment of the Russian Land Code in 2001 introduced major corrections into relations associated with land transactions. Law-enforcers are gradually becoming accustomed to the new rules. Worthy of particular attention is the problem of privatisation of land plots, i.e., transfer to private ownership of land plots belonging to the state or municipalities. Land privatisation is an inevitable phenomenon, connected with the search for ways to make land use more efficient. The land acquires real owners.

Privatisation of land plots, their transfer from state or municipal ownership to private ownership for a remuneration, is regulated by several regulatory acts: the Russian Land Code, the federal laws of 21 December 2001 “On Privatisation of State and Municipal Property” and of 24 July 2002 “On Trade in Agricultural Land”; Resolution of the Government of the RF No. 576 of 7 August 2002 “On the Procedure for Disposing of State-Owned Land Plots before Division of State Ownership of the Land” and other federal laws and regulatory acts of both the Russian Federation and its individual constituent entities.

On 28 January 2003, the Federal Law “On Trade in Agricultural Land” came into effect. The land question has never really been resolved, either before or since 1917, and trade in land either did not exist at all or took place within a very limited scope.

The growth of foreign investment in Russia and the appearance of more and more new projects in which land relations play a key role are circumstances prompting a quite detailed review of the most important aspects of the regulation of land relations.

Ownership of land and land categories

The effective Russian legislation secures the principle of pluralism of land ownership rights. The following are judicially recognised as equal rights:

• state ownership of land by the Russian Federation (federal ownership);

• state ownership by constituent entities of the Federation;

• ownership by municipalities (municipal ownership);

• land ownership by legal entities and individuals (private ownership)[36]36
  See: Chapter III of the Russian Land Code (LC RF); article 212 of LC RF.


[Закрыть].

In contrast to other things that are traded commercially, land plots cannot belong to no-one. All the land, apart from that belonging to municipalities or in private ownership, is owned by the state[37]37
  See: Article 16 of the LC RF; clause 2, article 214 of the LC RF.


[Закрыть].

A large part of Russian land is currently state-owned. Application of Federal Law No. 101-FZ of 17 July 2001 “On Division of State Ownership of Land”[38]38
  See: Collected Law of the Russian Federation, 2001, No. 30. – Art. 3060.


[Закрыть] makes it possible to convert part of the state land suitable for commercial use into municipal ownership.

In accordance with articles 9–11 and 29 of the Russian Land Code, land plots belonging to the state or municipalities may be provided to individual and legal entities by the state executive authorities or local government bodies. Clause 10, article 3 of Federal Law of 25 October 2001 No. 137-FZ “On Enactment of the Russian Land Code” establishes that, before state ownership of the land is divided up, local governments are responsible for disposal of state lands within the scope of their terms of reference, unless otherwise envisaged by the legislation.

The Russian Constitution places possession, use and disposal of land, division of state ownership of the land and the land legislation within the joint jurisdiction of the Russian Federation and its constituent entities. This means that the constituent entities of the Federation have the right to pass relevant laws and other legal acts that do not contravene the federal laws (subclauses “c” and “d” article 72; parts 2 and 5, article 76 of the Constitution of the RF). Thus, the Law of the Moscow Region “On Regulation of Land Relations in the Moscow Region” (in the version dated 21 September 2004) establishes that the right to provide state-owned land plots for ownership or lease for commercial activities is enjoyed by the relevant local government bodies, in consideration of a number of conditions, particularly if the area of these plots, depending on the district, does not exceed 0.5–3 ha. Larger land plots are provided by the Ministry for Property Relations of the Moscow Region. In addition, irrespective of the size of the plots, if they are, at the same time, reclassed from one category to another, it is the Government of the Moscow Region that is responsible for allocating them.

As envisaged by article 7 of the LC RF, all land in the Russian Federation, depending on its designated purposes, is divided into categories: agricultural land, populated area land, industrial land and other special purpose land, forested land, and so on. Land classed in a given category may be used only for its designated purpose. Depending on to whom the land belongs, the right to recategorise it is granted, correspondingly, to the Government of the RF, executive authorities of constituent entities of the Federation or local government bodies (municipally or privately owned land). The exception is agricultural purpose land, which can be reclassified only by executive authorities of federative constituent entities, even if it is owned municipally or privately (article 8 of the LC RF). Until state-owned land has been divided up, this land or land plots making up such land are converted from one category to another by the Government of the Russian Federation in the cases established by article 15 of Federal Law of 21 December 2004 “On Recategorisation of Land or Land Plots” (for example, land or land plots required for federal purposes), and in other cases by executive authorities of constituent entities of the Federation or, on their instructions, by local government bodies. Violation of the established procedure for recategorising land provides grounds for recognising acts on land categorisation or recategorisation as invalid.

The category of land is recorded in:

1) acts of federal executive authorities, executive authorities of federative constituent entities and local governments on provision of land plots;

2) contracts relating to land plots;

3) State Land Cadastre documents;

4) documents on state registration of real estate titles and transactions;

5) other documents in cases established by the federal laws and laws of constituent entities of the Russian Federation.

On 5 January 2005, the Federal Law of 21 December 2004 “On Recategorisation of Land or Land Plots” came into effect. This determines, in particular:

• the documents required for recategorising land or land plots making up such land and the procedure for drawing them up;

• the procedure by which applications for recategorisation of land or land plots making up such land are considered;

• the grounds for refusing to recategorise land or land plots making up such land;

• the specifics involved in transferring land or land plots making up such land from one of the seven categories to another;

• the procedure for classing land or land plots making up such land in a given category (i.e., initial determination of the land category).