The construction of facilities of federal, regional and local significance has been simplified

Pepeliaev Group advises that, on 31 July 2020 a federal law came into force establishing in particular the specifics of the construction of priority transport infrastructure facilities until 31 December 2024 (the “Law”).[1]

According to the text of the Law the amendments will be made to the procedures for drafting and approving the area planning documentation, for adjusting the boundaries of specially protected natural lands (‘SPNL’), for carrying out an expert review of the design documentation and for issuing a construction permit.

1. Facilities to which the Law applies

The Law primarily applies to the following transport infrastructure facilities of federal, regional or local significance (the “Priority Facilities”):[2]

• facilities that are constructed and/or reconstructed for the purpose of upgrading and expanding the trunk infrastructure in accordance with the strategy for the spatial development of Russia;[3]
• other capital construction facilities needed for ensuring the construction, reconstruction, and operation of the specified infrastructure facilities.

The list of the Priority Facilities is approved by the Russian Government and may include public motor roads, service area facilities, bridges, railway service facilities, sea and river ports, transport interchange hubs, etc.[4]

2. Approving the area planning documentation for the Priority Facilities under a simplified procedure

According to the Law the area planning documentation for the Priority Facilities may still be approved if the approved land-use planning documents (the land-use planning schemes for the Russian Federation, the constituent entities of the Russian Federation and municipalities as well as urban master plans) do not contain the information concerning the placing of the Priority Facilities.[5]

According to the legislation that was previously in force the area planning documentation with respect to the placing of the facilities of federal, regional and local significance should have been in line with the urban development documentation “of a higher level” (i.e. the urban development documentation for the area planning approved for the relevant public law entity).[6]

Before the area planning documentation that provides for the placing of the Priority Facilities of federal significance is approved, such documentation should be agreed with the supreme state executive authority of the constituent entity of the Russian Federation in which such facilities are constructed and reconstructed.[7]

In the event that the area planning documentation provides for the placing of Priority Facilities which are necessary for increasing the traffic capacity of the Baikal–Amur Mainline and of the Trans–Siberian Railway on the land plots situated within the boundaries of the SPNLs of regional or local significance (except for the state nature sanctuaries, natural parks, natural landmarks, botanical gardens and dendrological parks classified as specially protected natural lands), such area planning documentation, before it is approved, should be agreed with a competent state executive authority of the constituent entity of the Russian Federation and with the local authority.[8]

3. The state expert review of the design documentation for the Priority Facilities

There is an exception from the general rule set out in the Russian Town Planning Code (the “Town Planning Code”)[9] whereby if an approved area planning design (the “APD”) is missing, this should not prevent the design documentation for a linear Priority Facility and/or the results of the engineering survey carried out to draft the design documentation for such Priority Facility, from being submitted for the state expert review.[10]

The approved APD and/or area demarcation plan must be submitted to the authority or institution authorised to carry out the state expert review of the design documentation no later than 5 business days before the deadline for the state expert review.[11]

4. The environmental expert review of the capital construction facilities within the boundaries of the SPNLs of regional and local significance has been rescinded

One of the most significant new developments introduced by the Law is that the state environmental expert review of the design documentation for the facilities to be constructed / reconstructed within the boundaries of the SPNLs of regional or local significance has been rescinded.[12] It is worth pointing out that this rule applies not only to the Priority Facilities, but also to any capital construction facilities erected/reconstructed within the specified SPNLs.

With regard to the SPNLs of federal significance and the natural land of Baikal the state environmental expert review has been rescinded only for the Priority Facilities until 31 December 2024. This review will be replaced by a “compliance assessment” of the design documentation for the specified Priority Facilities as part of the state expert review of the design documentation held in accordance with the Town Planning Code.[13]

5. Temporary operation of the linear Priority Facilities until the commissioning permit is obtained

The Law has established that until the commissioning permit for a linear Priority Facility is obtained such facility may be operated on a temporary basis for the purpose of cargo/passenger transportation provided that it has been confirmed that the specified facility is technically ready for the temporary operation.[14]

Whether such facility is technically ready for the temporary operation is to be determined by a commission that consists of:[15]

• the representatives of the entity carrying out the construction;
• the representatives of the developer or of the technical client (in the event that the construction or reconstruction of a facility is carried out on the basis of a construction contractor agreement);
• the representatives of the entity that is to carry out the temporary operation of the capital construction facility.

The Russian Government should provide further regulation of the procedure for such commission to be formed and to function, the requirements for the technical condition of the linear Priority Facility approved for the temporary operation, the procedure for confirming that the specified facility is technically ready for temporary operation, the procedure for carrying out such temporary operation and technical maintenance of such facility.[16]

6. The specifics of changing the category of lands, new types of public easements for the construction of the Priority Facilities

The Law has established that it is not required to make a decision regarding transfer of a land plot from one category to the other or regarding the classification of the land plot as a certain category of lands in order to classify a public land plot (which is needed for the construction of the Priority Facility) as lands designated for industry, the power industry, transportation, telecommunication, radio and television broadcasting, information technologies, space activities, lands for defence, security or for other special purposes.[17]

The information concerning the change of/ classification as the specified category of lands is entered into the Unified State Register of Real Estate under an application procedure based on the approved area planning documentation.[18]

This rule does not apply to land plots classified as lands of settlements and to the land plots encumbered by third parties’ rights (except for an easement and a public easement).[19]

In addition, according to the Law, the following new types of public easements have been introduced for the construction / reconstruction of the Priority Facilities. These new types of public easements can be established until 31 December 2024 alongside with public easements listed in article 39.37 of the Russian Land Code, namely:[20]

• an easement for the construction / reconstruction of the linear Priority Facilities;[21]
• an easement for ensuring the construction / reconstruction of the Priority Facilities, including for:

- passing by foot or using a vehicle, and for bringing construction and other materials through a land plot;

- placing information boards, pointers, warning signs, demarcation and geodesic signs on the land plot;

o carrying out work aimed at establishing protective structures, and creating protective forest plantations necessary for preventing flooding, saturation, land erosion and for similar purposes.[22]

Decisions regarding establishment of the above public easements are made by the federal executive body authorised by the Russian Government, state bodies authorised to approve the area planning documentation for the Priority Facilities on the basis of the APD that provides for the placing of the Priority Facility.[23]

7. Mitigating the requirements of the environmental legislation with regard to the Priority Facilities

The Law has established that until 31 December 2024 in the central environmental zone of the natural land of Baikal it is permitted to carry out the types of activities which are necessary for increasing the traffic capacity of the Baikal–Amur Mainline and of the Trans–Siberian Railway.[24]

In addition, the construction / reconstruction of the above Priority Facilities on the forest lands within the boundaries of the natural land of Baikal are allowed if final cutting is carried out and the specified lands are transferred into lands of other categories.[25]

Also, according to the amendments introduced by the Law to Federal Law No. 33-FZ dated 14 March 1995 “On specially protected natural lands”, the Law may establish the specifics of the procedure for the authorised executive bodies of the Russian constituent entities and for local authorities to make decisions to exclude from the boundaries of the SPNLs of regional or local significance the lands and land plots designated for the construction / reconstruction of the Priority Facilities necessary for increasing the traffic capacity of the Baikal–Amur Mainline and of the Trans–Siberian Railway.[26]

The approved area planning documentation serves as a ground for making the above decisions to change the boundaries of the SPNLs of regional and local significance and the decisions to transfer the above lands to the lands of other categories.[27]

8. Other liberalisations for constructing facilities of federal, regional and local significance

In addition to establishing the specifics of the construction of the Priority Facilities, the Law also introduces a number of amendments to the Town Planning Code applying to the construction of any facilities of federal, regional and local significance.

Therefore, the Law has cancelled the rule according to which it was not permitted to make a decision to reserve or to expropriate land plots for state or municipal needs, to transfer lands or land plots from one category to the other, to provide land plots for the purposes of placing the facilities of federal, regional and local significance, if the placing of the above facilities was not provided for by the land-use planning documents of the Russian Federation, its constituent entities and municipal units respectively.[28]

Taking into account that the land-use planning documents are adopted for the long-term prospect, previously all the interested parties in fact had been notified of the possible expropriation of land plots long before the decision to that effect was adopted, and as a consequence, had the opportunity to not acquire such land plots, and to not develop the acquired ones. Once the Law was adopted such expropriation and reservation became difficult to forecast, since the area planning documentation that provides for the need to reserve and expropriate a land plot can be approved by the authorised bodies within very short timeframes.

In addition, if the above facilities are proposed for construction on land plots that are publicly owned and not encumbered by the third parties’ rights (except for an easement and a public easement), then issuing a construction permit in their respect is allowed before the above land plots are carved out. In this case it is not required to provide documents establishing the relevant rights over land plots for obtaining a construction permit for a capital construction facility. Instead of such documents, the details of the approved area demarcation plan or a scheme for placing land plots on the cadastral plan of the area should be attached to the application for a construction permit. [29]

In addition, the preparatory work for the construction of facilities of federal, regional and local significance can be started from the date when design documentation for the above facilities was sent for the expert review (i.e., before the construction permit is issued) provided that the specified work will be performed on public land plots that are not encumbered by the third parties’ rights (except for an easement and a public easement) and will not cause significant damage to the environment and its components.[30]

The list of types of such preparatory work, the procedure and environmental requirements for such work to be performed, should be established by the Russian Government.[31]

What to think about and what to do

Entities that carry out construction / reconstruction of facilities of federal, regional and local significance are recommended reviewing the adopted Law to determine which of the new provisions apply to the facilities that are being constructed / reconstructed.

Holders of title to land plots and real estate located on them, and persons considering acquisitions of the above facilities are recommended constantly monitoring the information concerning the area planning designs which can be approved with respect to the territory on which the above facilities are located, in order to timely obtain the information about possible reservation, or expropriation of the above facilities for state or municipal needs in connection with the construction of the facilities of federal, regional and local significance.

Help from your adviser

Pepeliaev Group’s lawyers are ready to promptly provide comprehensive legal support with respect to any issues arising in connection with construction of the facilities of federal, regional and local significance, as well as in connection with reservation and expropriation of land plots and real estate facilities located on them for state or municipal needs.