Legal regulation of guard of lands of housing and public building

Degradation of environment in cities has brought to destruction of ecosystems and its inconvertible nature. At characteristics of the occupied (housing) lands in the city as important condition of formation of favorable ambience of environment for people.

Рубрика Государство и право
Вид статья
Язык английский
Дата добавления 10.02.2015

Abstract work

Legal regulation of guard of lands of housing and public building

Legislative fixing of lands of housing and public building in the structure of land fund needs appropriate ensuring of legal requirements to their guard. Lands of housing and public building, which are the bases for making favorable ambience of occupying the territory, act, first of all, as the object, which is used for labor, everyday life and rest that is for labor activity of majority of population of the city, manufacture of the main part of industrial product. Ecological state of these lands, first of all, ecological safety influence health of the whole population of the city [1].

It is necessary to specify ecological problems. In the course of occupying territories, realization of economic activity, Man ruins ecosystems, pollutes them with wastes and, finally, endangers the safe life in the cities. Degradation of environment in cities has brought to destruction of ecosystems and its inconvertible nature. At characteristics of the occupied (housing) lands in the city as the most important condition of formation of favorable ambience of environment for people it is necessary to take into account the right of each person to safe life and healthy environment which is fixed in the Constitution of Ukraine (Article 50). The given necessity generates the number of problems, including guard of lands.

The questions of legal guard of lands have been considered in the works of Shulga M.V., Tretiyak A.M., Shemshuchenko Yu.S. and other scientists.

The legislative requirements on guard of lands are concentrated in section VI of the Land Code of Ukraine. Article 162 of the Land Code gives the definition of guard of lands, as the system of the corresponding legal, organizational and the other activities [2]. Realization of activities on guard of lands, efficiency and effectiveness of the land legislation in this part is provided by means of steady execution by the subjects of land relations of instructions on conservation qualitative and quantitative features of lands of the cities and presence of activities of legal responsibility and enforcement. Exactly, legislative fixing of land rights is one of the forms of guard of lands as the object of legal relations.

At the analysis of the contents of Article 162 of the Land Code of Ukraine it is obvious that the given Article does not give the full presentation about guard of lands of different categories and on its directivity is oriented, first of all, on guard of agrarian lands, determining the legal principles of guard of lands of other categories (non agrarian lands) enough fluently and superficially [3]. Undoubtedly legal models of guard of ands should be differentiated depending on classification of the object that is the purpose of land. Thus, lands of public building are used as the operative bases for accommodation of varied objects of vital activity of a person.

Installing differentiation of legal modes of different categories of lands, particularities of land legal object of owners of land grounds and land users, rights and duties of participants of land legal relations, hereunder the state follows the policy of guard of lands.

The state policy of guard and rational use of lands is determined by the system of legal, organizing, economic and other activities, which have environmental, resourceful and reproductive nature. In accordance with Instruction of the Cabinet of Ministers of Ukraine "About approval of the Concept of the national ecological policy of Ukraine for the period up to 2020" from October 17, 2007 No. 880-r one of the major purposes of the national ecological policy is improvement of the regional ecological policy, reduction of the negative influence of the process of urbanization on environment [4]. Thus, for instance, there is provided improvement of planning of the territorial structure of the cities, cessation of destruction of environment of the cities, reduction of areas of green plantings of the cities and greenbelts, introducing the instrument of strategic ecological estimation of regional plans and programs. The concept specifies that guard of land resources, as a kind of activities being approximation to the European standards on questions of abduction of the lands for accommodation of objects of construction, and is the national ecological policy, directed to ecological balanced use of natural resources.

The great role in creation of the balanced regional ecological policy should be given to the local control of natural resources, as well as social-economic and ecological development. In other words, bodies of local executive authorities and local self management are called to decide the given questions within the limits of the certain city. They should take the corresponding acts of ordering character (according to the national legislation and their competence), which provide realization of the corresponding concepts, programs, in the spheres, adequate to the nature, scales and features of the city. Thus, for instance, one of the activities on guard of lands and public building in the city is the Decision of the Odessa City Council "About confirmation of the Program of social-economic development of the city of Odessa for the year 2007" from April 5, 2007 No.1122-V [5]. Among the directions of development of land relations in the city during the year 2007 the Program specified inventory of the lands of the city, reinforcement of self-controlled checking, for guard and use of the lands within the city. The city target program of undertaking inventory of priority array lands of the city of Odessa will decide questions on revealing the lands, which are not used, or are used irrationally, or are used not on target purpose; on revealing polluted lands and others.

The main requirement of effectiveness of imperatives on guard of lands of the cities is the complex of environmental activities. Complex presentation about particularities in legal guard of lands and public building is formed by generalization of housing, sanitary medical and other special legislations. Thus, the Law of Ukraine "About bases of city construction from November 16, 1992, the Law of Ukraine "About planning and building of territories" from April 20, 2000; State sanitary rules of planning and occupying settlements, confirmed by order of the Ministry of health care of Ukraine No. 173 from June 19, 1996 and others.

At the same time the Law of Ukraine "About protection of environment" contains the complex of ecological requirements to construction, reconstruction and improvement [6]. Thus, Article 51 of the Environmental Law stipulates the position that at designing, accommodation, construction, introduction to action of new and reconstruction of acting enterprises, buildings and other object, as well as in the process of operating of these objects there should be provided ecological safety of the people, rational use of natural resources and prevention of harmful influence on environment.

Projects of economic and other activity should have the criteria of estimation of their influence on environment and health of the people. Such estimation is realized on account of requirements of environmental legislation, ecological capacity of the given territory, condition of environment in the city, in which accommodations of objects is planned, ecological prognosis, prospects of social-economic development of the region, powers and kinds of total influence of harmful factors and objects, on environment.

Introduction in to action of enterprises, buildings and other objects, on which there is not provided execution of all ecological requirements and performance of activities, provided in projects on construction and reconstruction, is forbidden by the environmental Law.

The concrete requirements to city construction are stipulated in Article 59 of the Ecological Laws, especially devoted to accommodation and development of settlements. It provides that planning, accommodation, building and development of settlements, is realized on decision of local councils on the account of ecological capacity of territories, performing requirements of protection of environment, rational use of natural resources and ecological safety.

At development of general plans of development and accommodation of settlements, village, city councils install the mode of use of natural resources, protection of environment and ecological safety, in country and greenbelts on consultation with Councils, on whose territory they are accommodated. Herewith the definition of the notion of ecological safety is fixed in Article 50 of the Environmental Law. It (ecological safety) is such condition of environment, at which there is provided warning of deterioration of ecological situation and danger for health of the people.

Questions of guard of lands in the process of city construction activities are fixed in Article 48 of the Law of t Ukraine "About guard of lands" [7], and according to its positions territorial development and public building within settlements, as well as construction of objects of engineering-transport infrastructure is realized on account of requirements of the rational use of lands. Thus, accommodation and construction of objects of housing-public, industrial, transport, and others should be realized in accordance with the confirmed city construction documentation and projects of these objects.

In the process of city construction activity there should be provided activities on maximum conservation of area of land grounds with soil and plant cover; removing and storage in certain places of the fertile layer of the land with the further use of it for improvement of small productive lands, recultivation of the lands and improvement of settlements and industrial areas; non lower breaches of the hydrological mode of land areas; observance of ecological requirements, installed by the legislation of Ukraine at designing, accommodation and construction of objects.

The necessity of formation of the city territory by great amount of grounds and buildings on comparatively limited space is always accompanied with appearance of varied different ecological problem situations, on which decision the city construction activity is directed. In urban planning the ecological factor, according to which the land is characterized as the object of the ambience, should play the major role. Overcoming of disadvantage territorial planning structure of the cities is realization of activities on improvement of appropriate planning and regulation of use of lands of the cities. Territorial-spatial planning by land-use in cities is the complex process of distribution of land and connected with land resources, directed to achievement of the maximum efficiency without making harm to environment and, at the same time, for welfare for the concrete land user.

Undoubtedly, the positive step on improvement of legal regulation of use and guard of lands and public building there has become the Order of the Cabinet of Ministers of Ukraine "About approval of the Concept of the Urban Code of Ukraine" from July 18, 2007 No. 536-r [8]. The legislation in the sphere of urbanization began to be formed later, than closely connected with it land legislation and legislation about protection of environment. Accordingly there has appeared the problem of co-ordination of separate positions of the specified branches, first of all, in connection with quick development of cities, as well as relations of property in this sphere and of other kinds of construction. The development and passing of the Code should provide the systematization of legislation in the sphere of urbanization and co-ordination of its positions with the norms of land and environmental legislation. Besides, the necessity of the proper and efficient guard of lands of cities needs addition and further detalization of norms of land legislation on legal regulation of the given category of lands.

Importance of international-legal acts on protection of environment is indisputable, considering their uniting power amongst participating countries [1]. By means of international agreements (many-sided, regional and double-sided) there was confirmed the number of principles of modern law of environment, such as:

- the principle of obligation of the countries to protect environment;

- the principle of unabolished sovereignty of states on their national natural resources (herewith not to protect other states to use own human resources);

- the principle of no harm on environment outside the borders of application of national jurisdiction;

- the principle of the right to information on condition of state of environment, participation of public in the process of decision making and access to justice on ecological questions;

- the principle of obligatory estimation of influence of human activity on environment;

- the principle of mutual consultations and mutual aid at harm as a result of pollution;

- the principle who pollutes - that pays and etc.

In this context the indisputable priority should be necessary given to simplification of international-legal procedures concerning indemnifying losses, made on environment by other states. Particularly actual (undoubtedly and very difficult) is the question on international liability of states, including their liability in the event of harmful consequences from activity, not forbidden by the international law.

1. International agreements:

a) Conventions in the sphere of protection of sea environment from pollution:

- Convention MARPOL 73/78. It has especial importance concerning technical criteria, presented to nave, for the purpose of prevention of pollution of environment. Thus in this case the most significant are requirements to tankers. And this is connected with significant additional financial expenses on the part of the owner of the nave.

- Convention of UNO on maritime law. Undoubtedly significant importance of this unique international act, regulating relations (and interests) of states in space, occupying 71% area of the planet. Comprising it instructions of ecological nature (in preamble, in some other parts and particularly special part "Protection of sea environment ") generate both rights, and duties, for performance of which concrete measures and actions are necessary. For their realization both financials facility are necessary, as well as creation of identical administrative-management structures.

b) Agreements and conventions, connected with nuclear weapon and use of atomic energy in peaceful purposes:

- the problem of nuclear weapon (manufacture, accommodation, tests, restrictions, including full banning) is connected with the main political and geostrategic tendencies in global scale. Joining of our countries to such agreements undoubtedly has importance to situations of involvement in one very delicate sphere of international relations.

- Beginning of international-legal regulation of problem of use of the atom in peaceful purposes in 1950-s has suffered comparatively greater metamorphoses - especially after Chernobyl. The two immediately adopted conventions at nuclear disaster and about aim in the event of nuclear disaster or at presence of nuclear emergency situation have given clear enough signal to states that there is no harmless type of human activity. It is absolutely naturally that such international-legal agreements should influence behaviour of states in global, regional and double-sided aspect.

The essential elements of international-legal regulation in the field of use of atomic energy in peaceful purposes are Viennese Conventions on civil liability at nuclear damage and nuclear safety. They consider solely important questions on liability and constant maintenance of necessary and sufficient level of safe use of atomic power stations.

c) Convention on international trade of protected species of the wild fauna and flora -its importance for protection of nature is undoubted. In it there is emphasized prohibition (or at least regulated restriction) of international trade of directly protected species, included in special lists, as well as by means of regulation and observation over trade of other species, which can changed in rare.

g) Ramsar Convention on humid zone has international importance as convention about habitat of waterfowls. By determination and including of such zones in global list convention pursues the purpose of protection, management and expedient use of nature and natural resources (including flora and fauna). Undoubted is the importance of humid zones from the point of view of preservation of ecological balance of the planet.

d) Convention on protection of biological variety. Undoubtedly one of the most significant global conventions has been adopted in Brazil in 1992 at the Conference of UNO on environment and development. The main accents in it are put on reasonable and further use of biological variety in global scale, taking into consideration its exclusive importance for preservation of ecological balance of the planet. The main "brake" in its efficient application is finding reasonable compromise between need in modern and fashionable biotechnologies and possible danger of "their deflections for other purposes, not covered by the convention".

e) Convention on transborder air pollution on great distances and reports to it. The main purpose of this act of international law is restriction and prevention of harmful influence of the so called acid rains on environment (particularly on forests). Created scientific and administrative structures on application on convention reports to it are legal base of the reduction of air pollution, causing such rains.

f) Viennese Convention on protection of ozone layer and Montreal Report concerning materials, destroying ozone layer. These are very important agreements if to bear in mind physical significance of ozone layer for protection from ultraviolet irradiation. The question is about presence of strict production discipline, about installment reduction of production and consumption of ozone destroying materials. Obviously the list ozone destroying materials will enlarge (depending on proofs presented by science. At present the most negative effect on ozone is made by use of Freon in refrigeration, pharmaceutical and optical industries.

g) Frame UNO Convention on change of climate. Notwithstanding its general nature, it, however, initiated the global strategy of reduction of emission of gas, bringing to greenhouse effect.

Very important international obligations are taken on Report, signed in Kyoto. It renders concrete obligations of states about reduction of exhausts of three main greenhouse gases such as carbon dioxide, nitrogen dioxide and methane.

h) Convention on estimation of influence on environment in transborder context. The main thing is that it is necessary to pay special attention to potential negative ecological factors at the earlier stage of the process of decision making (to allow or not this or that type of human activity). The important role in application of Convention is given to the civil society (particularly to population in border regions that is to people, whose rights can be infringed by the activity, made on the territory of the nearby state), which can have the negative influence on the person and environment. Convention has extremely practical importance in connection with:

1) Decision making on the questions which due to fundamental principles and norms of the international law are in the national competence of the other state;

2) Unification of norms and standards for designing technological buildings and supervision over them;

3) Taking unified methods;

4) Reinforcement and expansion of forms of cooperation on questions, representing mutual interest.

i) Convention on use and protection of transborder water currents and international lakes. The main purpose of this agreement is to intensify at the national and international levels actions on prevention and restriction of exhausts of dangerous things in reservoirs (for example, through "measurements of reservoirs ", determination of general norms and standards for at most possible concentration of polluting materials in water, development of the coordinated programs for joint actions, creation of joint bodies and etc.).

j) Convention on transborder influence on industrial disasters. Undoubtedly significant step for regulation efforts, at the level of international law directed to prevention of industrial disasters, readiness to liquidate possible consequences from their transborder influence. The bases of this act of the international law understand of the potential risk from industrial disasters with transborder negative influence. The most important element of activity of the state must be the preventive approach. It is connected with:

- Development of the national policy, plan and systems of early notification in this area;

- Inventory (at the national level) of dangerous types of activity and notice of other concerned sides about existence or planning of such types of activity;

- Co-ordination between competent bodies of states - members of convention.

Twelve supplements comprehensively enough render concrete obligations of states on execution of convention.

k) Basel Convention on supervision of transborder move of dangerous wastes and render their harmless. It is the universal legal mechanism for management of dangerous wastes on the event of their appearance, gatherings, conservation, discussion and consideration their further existence, their use and, finally, achievement of render their ecological harmless. The given Convention includes several cardinal principles:

1) Reduction to minimum dangerous wastes;

2) Detonate in regions of the most close to the source of their appearance;

3) Clear supervision over their transborder move.

According to Convention the subjects of law are countries on export, transit and import. To allow the transit on the territory of the given state is required both permission of the competent bodies of the states on transit, and permission of states on import and export (herewith the fall countries on convention).

l) Convention on access to information, participation of public in process of decision making and access to justice on ecological questions [2].

First of all the given convention provides the right of each person to live in favourable environment. The given right is defended through access to information and through participation in decision of the ecological problems. And when the given right is infringed, convention gives the right to the competent and independent judicial system to define on concretely presented claims. The competent state bodies must give the required information without proving direct interest in it.

It must become:

- as quickly as possible;

- not later, than in a month after presenting the statement and, at least within the period of two months on presenting the statement (depending on volume or complex of the required information).

Refusal of granting information can have place solely in concrete events clearly provided in Convention.

Secondly, due to Convention there is regulated the question on participation of public at decision making on activity [3], listed in special supplement to it. The procedures on discussion of proposed types of activity are connected with:

- publicity of the intention to make any type of activity, which could render significant harmful influence on environment;

- description of types of activity;

- possible decisions (including alternative);

-whether its influence is rendered on the territory of the state or outside application of national jurisdiction;

- determination of reasonable terms for definition standpoint;

- guaranty of the efficient discussion of corresponding project (proposed type of activity);

- free access of interested persons to the whole information, concerning the project (activity).

Besides, Convention increases the range of public participation i.e. not only discussion of projects of creation (roads, airports, atomic power stations, railroad yards for nuclear wastes and etc.), but also participation in study and development of plans, programs, including statutory acts, concerning environment.

The third important element of convention is the question about access to justice. States-parties on this convention must guarantee and enter in frames of their national legislation such quick procedures for consideration of presented to citizens' claims, herewith gratis, and, solely for minimum or symbolic cost on judicial expenses.

It is possible to confirm that for the state from the former socialist states, the given act of the international law has exclusive practical value (both in legal, psychological and moral aspects).

For actual application for "spirit of convention" it is importance to have answers to the following questions: in what measure and in what way each of these states adapts the sense of the act of the international law to internal realities and national legal system. And the most important in this case will undoubtedly be the answer to the question whether have been created and in what way real guaranties of application of corresponding instructions are.

2. Regional agreements

a) Convention of protection of the Black Sea from contamination. The idea of the similar regional act of the international law appeared in 1969. But on many reasons, development of the given Convention sprawled at time. It was definitively adopted and open for signing in Bucharest on April 21, 1992. Countries according to Convention are the states along the coast of the Black Sea [4]. Each country, "interested in achievement of own purposes and helping greatly in protection and recovering of sea environment on the Black Sea if the given state is invited by all agreeing countries," can join Convention (Article 28, item 3).

Black Sea Convention is created similar to Convention on protection of the Mediterranean Sea from 1976, but it contains relatively more modern technical-legal approach to the problems solved [5].

The leading problems of Convention take into account:

- the fact that the Black Sea is half-closed;

- that it has specific ecological and hydrological features (the Black Sea is considered "fragile echo system ").

According to the convention the countries are obliged to co-operate for prevention, reduction and supervision of pollution of sea environment from sources, located on land, from naves or through dumping. In this connection Convention was enclosed with four reports [6], defining obligations to undertake concrete measures on protection of sea environment from contamination.

According to Convention protection of the Black Sea from contamination supposes 4 main functions:

- to encourage application of Convention;

- to make offers on measures, required for achievement of conventional purposes;

- to offer at conferences to parties necessary changes and additions to convention and to reports enclosed.

b) Convention on cooperation at protection and firm use of the river Danube. The parties on the given Convention are obliged to undertake all required legal, administrative and technical measures for maintenance and improvement of quality of water of the river. The two main principles are perceived:

- prevention;

-polluter should pay.

The forms of cooperation embrace undertaking of consultations, volume of information, data and experience. It is necessary to undertake specific measures to minimum risk from emergency contamination. The very important conventional element is the obligation to install general emission norms, attached to separate industrial branches, potential polluters of the river Danube, as well as development and application of joint programs of activity. According to Convention each state should enter the mode of permission plum polluted water in the river. All types of activity which can have significant negative influence upon state of the water the river, should pass the expert operation on influence on environment.

The literature

legal regulation lands building

1. Шульга М.В. Актуальные правовые проблемы земельных отношений в современных условиях. - Харьков: Фирма «Консум», 2008. - 224 с.

2. Земельний кодекс України: Науково-практичний коментар / За ред. В.І. Семчика. - К.: Видавничий дім «Інюре», 2013. - 676 с.

3. Фролов М.О. Охорона земель як еколого-правовий імператив земельного законодавства // Вісник Хмельницького інституту регіонального управління та права. - 2012. - № 3. - С. 73.

4. Про схвалення Концепції національної екологічної політики України на період до 2020 року: Розпорядження Кабінету Міністрів України від 17 жовтня 2007 року № 880-р // Офіційний сайт Верховної Ради України (http://zakon.rada.gov.ua).

5. Про затвердження Програми соціально-економічного розвитку м. Одеси на 2007 рік: Рішення Одеської міської ради від 5 квітня 2007 року № 1122-V // Офіційний сайт міста Одеси (http://www.Оdessa.ua/acts/council).

6. Про охорону навколишнього природного середовища: Закон України від 25 червня 1991 року в редакції Закону від 27 квітня 2007 року // Відомості Верховної Ради України. - 1991. - № 41. - Ст. 546.

7. Про охорону земель: Закон України від 19 червня 2003 року // Урядовий кур'єр від 6 серпня 2003 року.

8. Про схвалення Концепції Містобудівного кодексу України: Розпорядження Кабінету Міністрів України від 18 липня 2007 року № 536-р // Офіційний сайт Верховної Ради України (http://zakon.rada.gov.ua).




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