Additional restrictions in relation to the development of areas adjacent to cultural heritage sites
Pepeliaev Group advises that, from 3 October 2016, amendments come into force to legislation dealing with cultural heritage sites. These introduce a prohibition on the construction and reconstruction of capital construction projects close to cultural heritage sites.
In accordance with Federal Law No. 95-FZ dated 5 April 2016 “On amending the Federal Law ‘On cultural heritage sites (historical and cultural monuments) of the peoples of the Russian Federation’” and article 15 of the Federal Law “On the state cadastre of real estate”, a new type of area is created with special regulation - protected zones of cultural heritage sites. Within the borders of the protected zones that are being created, there is a ban on the construction and reconstruction of capital construction facilities that involve changing the parameters of such facilities (their height, number of storeys or area), save for the construction and reconstruction of communications and utilities lines*.
The introduction of protected zones (in Russian, «защитные зоны») is a temporary measure aimed at creating a simplified mechanism for protecting historical and cultural areas in relation to which there are no approved zones of protection**(«зоны охраны»). Thus, a protected zone ceases to exist from the date on which the draft of the zones of protection of such cultural heritage site is approved (article 34.1(6) of the Heritage Law).
It is important to remember that the legislation aimed at protecting cultural heritage sites in their historic environment currently provides that it is possible to establish special zones of protection, which break down into the following three categories: (a) protective zones («охранные зоны»), (b) zones regulating development and business activity («зоны регулирования застройки и хозяйственной деятельности»), and (c) protected natural landscape zones («зоны охраняемого природного ландшафта»).
Such zones are areas within the boundaries of which a special land use regime is set, which restricts the possible types of activities that may be undertaken. Further, the relevant competent authorities are to establish the composition of zones of protection (the borders of areas and the specific regime) based on draft zones of protection for cultural heritage sites that will be drawn up based on materials from historical architectural and town-building documents and archive documents. Also taken into consideration will be the results of a public consultation (article 34(4)(1) of the Heritage Law, and the Regulations on zones of protection for cultural heritage sites (historical and cultural monuments) of the peoples of the Russian Federation***).
PG comments: It is evident that the procedure for establishing zones of protection for cultural heritage sites is fairly lengthy and labour-intensive. In turn, protected zones are automatically established from the date when the certificate comes into effect of a facility’s entry into the Unified State Register of Cultural Heritage Sites (the “Register”). Protected zones for sites that have previously been included in the Register will be established from the date on which the Heritage Law comes into effect, which means from 3 October 2016.
In accordance with the amendments made to the Heritage Law, borders of protected zones are established based on the type of cultural heritage site (monument or group of monuments), or whether it is located within or away from a population centre, and depending on whether the boundaries have been set for the area of the site. The borders of protected zones are established over a distance of between 100 and 300 metres from the external borders of the territory of the cultural heritage site (or its walls / the outer edge).
At the same time, the legislature also determines facilities in relation to which a protected zone may not be established:
- archaeological heritage sites;
- burial grounds (and burial places located within their borders);
- works of art in architecture;
- cultural heritage sites included in the Register, but located within the borders of the zone of protection of another site or within the borders of a combined zone of protection for the site;
- monuments and grounds of monuments that are sightseeing attractions, for the operations of which requirements have already been set.
In the explanatory note to the draft law on establishing protected zones, its authors pointed to the fact that, at present, only around 15% of the total number of cultural heritage sites are secured by zones of protection****. . If we take information from the public database of cultural heritage sites, then Moscow alone has more than 6,000 cultural heritage sites that have been entered in the Register*****. Taking this into account, it is difficult to reassess the scale of the consequences that these changes will have.
What to think about / what to do
The setting of such restrictions will create problems in implementing planned projects for owners of real estate facilities near cultural heritage sites who intend in the near future to carry out construction or reconstruction works but who, for whatever reason, have not yet formalised the permission documentation. It seems that the amendments that have been adopted allow two ways to exclude the prohibition on carrying out work:
- independently drawing up and agreeing with the relevant authorised bodies a draft of the zone of protection for the relevant cultural heritage facility (facilities);
- agreeing with the authorised bodies individual changes to the borders of an automatically established protected zone (based on a historical and cultural expert examination).
However, while there are already regulations in force governing the first method (see above), no procedure has yet been approved for the alternative method.
Nevertheless, it seems that, to implement both methods, substantial time and money will need to be expended, and this may affect the timeframes for implementing development projects and the profitability of those projects.
In the above circumstances, it is increasingly important to carry out due diligence of a facility that is being acquired and it is also necessary to take into consideration the possible future expenses on negotiations when a transaction to acquire a facility is structured or when planning the costs of implementing a project.
Help from your adviser
Pepeliaev Group's lawyers are ready to provide legal assistance in conducting comprehensive legal due diligence when an asset is acquired. This includes assessing both town-planning restrictions and other factors that may have an impact on the attractiveness of the project. We are also ready to assist in structuring transactions taking account of the outcome of due diligence and in drafting the required documents.
Our lawyers have extensive experience of offering transactional support, providing the whole range of high-quality legal assistance clients need.
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* In accordance with article 34.1(1) of Federal Law No. 73-FZ dated 25 June 2002 “On cultural heritage sites (historical and cultural monuments)” (the “Heritage Law”), as amended.
** In addition to the newly established temporary ‘protected zones’, the Heritage Law already makes more detailed provision for what are called ‘zones of protection’. These break down into the three categories listed in the following paragraph and they entail permanent restrictions on development and business activity. The terminology is similar, but in this alert we have used the term ‘protected zone’ exclusively to denote the new temporary measure and have used the term ‘zone of protection’ solely to denote the established permanent measure. The term ‘protective measure’ also appears once, since this is the English equivalent of the Russian term used to describe one of the types of zone of protection.
*** Approved by the Russian Government's Resolution No. 972 dated 12 September 2015.
**** See the explanatory note to draft law No. 682357-6, drafted by the State Duma's Culture Committee, http://asozd2.duma.gov.ru/.
***** See the Moscow Government's open data portal: http://data.mos.ru/opendata/7702155262-obekty-kulturnogo-naslediya-i-vyyavlennye-obekty-kulturnogo-naslediya