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Features of administrative and legal regulation of powers of subjects of the public power in
the field of town-planning activity
Svetlana Nikolayevna KUCHMAYEVA
Russian presidential Academy of national economy and public administration
Russia
kuchmayeva@ranepa.ru
Аннотация.
The article presents the existing features in the field of urban legal relations, administrative and legal regulation of the powers of public authorities in urban planning. The author shows that the issue of differentiation of subjects of competence between the Federal, regional and local levels is one of the Central issues of Federal relations, and has been repeatedly emphasized in his speeches by the President of the Russian Federation. At the same time, the main positions of a number of features in the article are considered in terms of the delimitation of powers between the levels of legal regulation of administrative nature in the field of urban planning, which are primarily dependent on the nature of municipal relations and the principles of the delimitation of competence between the Russian Federation, the subjects of the Russian Federation and municipalities. The author considers that on condition of reference of legal regulation of local government to various spheres it is necessary to provide uniform legal space of the Russian Federation by which it is necessary to understand existence of the ratio between local, regional and Federal legislation expressing coordination of equally important questions.
Keywords
the powers of public authorities, urban relations, urban planning, public relations, spatial planning, development of the area.
Introduction
Article 72 of the Constitution of the Russian Federation (hereinafter-the Constitution of the Russian Federation) refers to the joint jurisdiction of the Russian Federation and its subjects, but at the same time, urban planning legislation is not mentioned in plain text, and article 73 of the Constitution of the Russian Federation due to the principle of reasonableness does not list the subjects of monopoly of the Russian Federation at all, as they are due to the specifics of a particular region. Thus, the basic law of the country does not directly relate urban planning legislation to the subject of Federal jurisdiction, nor to the sphere of joint competence of the center and the regions. However, in the principles of differentiation of subjects of jurisdiction and powers between Federal bodies and public authorities of the subjects of the Russian Federation, enshrined in the Constitution of the Russian Federation, on the implementation of these constitutional provisions, the main is the definition of the rules of differentiation of subjects of jurisdiction, not powers.
Meanwhile, in point "to" part 1 of article 72 of the Constitution of the Russian Federation can contain not direct, and the indirect answer to the raised question since norm specifies that in joint jurisdiction of the Russian Federation and subjects of the Russian Federation there is, in particular, the administrative legislation. [1]
According to the town-Planning code of the Russian Federation of 29.12.2004 No. 190-FZ (hereinafter -GRK of the Russian Federation), town-planning activity - activity on development of territories, including cities and other settlements, carried out in the form of territorial planning, town-planning zoning, territory planning, architectural and construction design, construction, capital repairs, reconstruction, demolition of objects of capital construction, operation of buildings, constructions, improvement of territories.
Under the legislation in the field of urban planning and in the provision of land for construction is meant and land and administrative legislation in General, because these industries are the framework of legal regulation of these public relations, and thus further activities for the development of the territory, in particular. [2]
At the same time, urban planning legislation is by its nature a complex sub-branch of administrative law, since urban planning legislation also regulates the relations between various public authorities, as well as relations between public authorities - on the one hand, and individuals and legal entities - on the other. [3]
The Federal legislator, within the limits of the prerogative on regulation as the General principles of the organization of legislative (representative) and Executive bodies of the government, and powers within specific
subjects of joint maintaining and proceeding from reasonable ideas of how the greatest socially useful effect will be provided, - on the basis of part 2 of article 76 of the Constitution of the Russian Federation, the Federal law may elect the most effective mechanisms for the exercise of powers by public authorities and officials, in respect of which the relevant procedure is not expressly provided for in the Constitution of the Russian Federation, while respecting its principles and norms, and ensuring a balanced combination of powers and interests of the Russian Federation, on the one hand, and subjects of the Russian Federation, on the other. [4]
Literature review
In the scientific article N. And. Antonova "the Delimitation of powers between the Federation and the constituent entities of the Russian Federation in the sphere of regulation of local self-government" denotes the basic idea that "the questions of self-reference of subjects of the Russian Federation in the sphere of local self-government may be quite related definition of the forms of interaction of authorities of subjects of the Russian Federation and municipal bodies. Thus, the relations of local self-government are simultaneously included in the spheres of, firstly, the exclusive jurisdiction of the Russian Federation, secondly, the joint jurisdiction of the Russian Federation and its subjects, thirdly, the own jurisdiction of the subjects of the Russian Federation and exclusively its own jurisdiction by the local self-government body."
The author of the mentioned article quite rightly denotes the problematic issue of not quite equivalent distribution of the powers of the relevant bodies within the mentioned subjects of competence. That is, although it is clearly a question of strengthening the influence of the Russian Federation on the development of local self-government, expressed mainly in the concentration of legal regulation of local self-government at the Federal level, a significant number of those local-government relations that were regulated at the level of subjects of the Russian Federation, are now regulated at the Federal level, as a result of which there was a certain unification of municipal relations in many territories of the Russian state. The reform of local self-government once again confirms the idea that all the problems of this institution are determined by the absence, firstly, of the concept of local self-government development in the Russian Federation, and secondly, by the problems of differentiation of competence, powers, rights and duties between Federal Executive bodies and subjects.
I agree with the author about the statement about the aggravation of the situation by the fact that today in the law "on paper" one model (districts and settlements function autonomously from each other and from the state power; each level of power solves its range of tasks), and in the modern fact - quite another: the areas are firmly embedded in the system of state power and functional load on the direct provision of life of the local population almost do not bear; the settlements are relatively Autonomous, but under strong pressure from the districts, and Federal state control is based on subjective discretion. Meanwhile, in this paper, the author correctly finds a solution to the problem in the form of a proposal on the need for consistency in the implementation of the principle of subsidiarity: that is, management tasks should be solved at the lowest and most remote from the center level, at which their solution is possible and effective. [5]
I can add to this statement that this may also apply to the field of urban planning.
Redistribution of powers between local governments and public authorities of the subject of the Russian Federation in the field of town-planning activity is established by article 8.2 of GRK of the Russian Federation, but the legal norm of reference character on the Federal law of 06.10.2003 No. 131-FZ "About the General principles of the organization of local government in the Russian Federation" (further - the Federal law No. 131-FZ). However, it should be noted that in this article, the GRC of the Russian Federation is about the redistribution of powers exclusively in the field of urban planning. At the same time, in the GRK of the Russian Federation, most of the rules define the rights in the urban planning sphere, and less attention is paid to the formulation of duties.
Clearly, the differentiation of the subjects of competence and powers between the bodies of state power of the Russian Federation and the bodies of state power of the subjects of the Russian Federation is carried out by the Constitution of the Russian Federation, the Federal Treaty and other agreements on the delimitation of subjects of competence and powers, but only if it does not contradict [6]
Redistributions of powers between the Russian Federation and its subjects are provided by two variants of administrative and legal regulation, by the conclusion between them of contracts on differentiation of powers and by the conclusion of the agreement between Executive bodies of the Russian Federation and subjects of the Russian Federation on transfer of implementation of part of the corresponding powers. [7]
Materials and methods
To the full extent, the features of administrative and legal regulation of the powers of public authorities in the field of urban planning is the right to transfer the exercise of powers, and to varying degrees peculiar, it is when there is an understanding that in the GRC of the Russian Federation the list of powers of public authorities is open, and the lists of powers of public authorities of subjects of the Russian Federation, local governments are formulated in a codified act closed, which in itself can be recognized as a problematic issue. However, by virtue of article 6.1 of GRK of the Russian Federation provided for the possibility and (or) the right to transfer certain powers of the Russian Federation in the field of urban development authorities of constituent entities of the Russian Federation.
In accordance with part 1 of this article, the Russian Federation bodies of state power of subjects of the Russian Federation transferred the exercise of power regarding only two types of powers in the field of organization and conducting of state expertise of design documentation, state expertise of engineering survey results, with the exception specified in paragraph 5.1 of article 6 of GRK of the Russian Federation the state expertise of design documentation, state expertise of engineering survey results, unless otherwise specified. [8]
A part 1.1. the above-mentioned article, the Russian Federation transfers to public authorities of subjects of the Russian Federation implementation of the second type of powers - in the field of control of observance by local governments of the legislation on town-planning activity. In this case, the Federal Executive authority, which carries out the functions of development and implementation of state policy and normative legal regulation in the field of construction, architecture, urban planning, reserves the right to adopt normative legal acts on issues related to the scope of delegated powers, as well as to issue guidelines and instructional materials for their implementation by the Executive authorities of the subjects of the Russian Federation, mandatory for execution. [9]
Thus, together with the transfer of these powers in the first part of article 6.1 of the GRC of the Russian Federation, the Federal Executive body responsible for the development and implementation of state policy and legal regulation in the field of construction, architecture, urban planning reserves the coordination of the structure of Executive authorities of the Russian Federation in the field of state examination of project documentation, state examination of the results of engineering surveys and in the field of control over the observance by local governments of the legislation on urban planning, control over the execution of normative legal acts adopted by the public authorities of the Russian Federation on the transferred powers, with the right to send binding instructions on the abolition of these normative legal acts or on making changes, control over completeness and quality of implementation by public authorities of subjects of the Russian Federation of the transferred powers with the right of the direction of instructions on elimination of the revealed violations, and also about accountability of the officials performing duties on implementation of the transferred powers, establishment of the contents and the form of submission of the reporting on implementation of the transferred powers, and if necessary, establishes target forecast indicators. However, in case of non-performance or improper performance by public authorities of the subjects of the Russian Federation transferred in accordance with this article of powers, prepares and submits to the Government of the Russian Federation for decision-making proposals on temporary withdrawal of relevant powers from public authorities of the subjects of the Russian Federation.
At the same time, as an exception to this rule [10], a ban on the transfer to the subjects of the Russian Federation for the exercise of the authority to organize and conduct state examinations of project documentation and the results of engineering surveys in respect of twelve capital construction projects that are recognized as unique or conditionally special, which is clearly relevant for the city of Federal importance of Moscow, as well as some other subjects of the Russian Federation. Accordingly, the state construction supervision over the construction, reconstruction of unique capital construction projects in this case must be carried out by the authorized Executive body of such a subject of the Russian Federation. At the same time, the article does not provide for the transfer of such power, but this becomes permissible due to the particular possibility of regulating the powers specified in article 26.8 of the Federal law No. 184-FZ "On General principles of organization of legislative (representative) and Executive bodies of state power of the subjects of the Russian Federation".
Results and discussions
Basics of administrative law procedure of organization and conducting of state expertise of design documentation of capital construction facilities and the expertise of engineering survey are set by the UDC, [11], and the procedure for conducting these examinations is based on the norms of RF Government decree of March 5, 2007 № 145 "On organization and conducting of state expertise of project documentation and engineering survey results". Thus, within the meaning of the possibility of transferring the powers considered, the latter is carried out "through" the Executive bodies of state power.
By virtue of part 1.2 of article 17 of the Federal law № 131-FZ provides for the redistribution of powers between local authorities and public authorities of the subject of the Russian Federation. Such laws of the subject of the Russian Federation come into force from the beginning of the next financial year. [12] the Essence of the established order is predetermined in part:
1) that redistribution of powers between local governments and public authorities of the subject of the Russian Federation can be carried out by laws of the subject of the Russian Federation, excluding other legal acts;
2) that the laws of the subject of the Russian Federation providing regulations and redistribution of powers come into force from the beginning of the next financial year, excluding other terms;
3) that redistribution of powers is allowed for the term of not less than term of powers of legislative (representative) body of the government of the subject of the Russian Federation.
So, today in many subjects of the Russian Federation a representative body (legislative Assembly, Duma, etc.) is elected and performs its powers for a term of five years. In these circumstances, the legislative (representative) body of state power of the subject of the Russian Federation is quite capable of approving the relevant law with the validity period of legal norms on the redistribution of powers in the field of urban development at least until the end of the term of such a body of the current convocation (example: the Law of the Sverdlovsk region "On the redistribution of certain powers in the field of urban development between the local authorities of the municipality "city of Yekaterinburg" and the public authorities of the Sverdlovsk region», together with the changes). [13]
But, it is important to take into account, including the interpretation of the courts, that the redistribution of powers of public authorities or local authorities from one level of public authority to another can not lead to a change in their legal nature and their compliance with a particular subject of jurisdiction or a local issue and such redistribution of powers on the part of competence on local issues in favor of public authorities does not terminate their status of authority to address issues of local importance, they, as before, will remain the authority, related to the competence, the implementation of which is aimed at solving issues of local importance. They do not become state from the point of view of the level of public power. State in this case, are those bodies that after the redistribution of the right to implement them. [14]
The powers transferred to bodies of state power of a subject of the Russian Federation in the framework of the procedure of redistribution of this article cannot be subject to the legal regime of part 2 of article 132 of the Constitution, because even after transfers them to the bodies of state power of a subject of the Russian Federation they do not lose their status as authority for the decision of questions of local value, and they also applied to them. [15]
And yet, the administrative and legal regulation of the powers of the subjects of public power expanded the possibilities of Russian subjects in addressing the issue of redistribution of powers. And the implementation of these opportunities is carried out through the adoption of laws by the subjects of the Russian Federation. Thus, as the analysis of practical application of the legislation of subjects of the Russian Federation shows, most often in the course of this redistribution the powers giving to local governments really working administrative levers of influence and (or) influence on the municipal agenda are actually withdrawn. [16]
This formulation of the question in the field of the distribution of powers in relation to urban planning is transformed from a feature into an actual problem, for example, in terms of the disposal of land plots with undefined property (including under some pretext of economy), and in the field of targeted policy of spatial development of the Russian economy and the transformation of municipalities within the framework of the modern concept of spatial development. At the same time, when considering some problems of the sphere of redistribution of powers between local governments and public authorities of the subjects of the Russian Federation, the exceptional authors in their works still find positive features in the innovations of redistribution of
powers, linking them with the complexity of regulation and the potential positive effect in terms of a more rapid and differentiated approach to solving problems. [17]
At the decision of the arising redistributed powers the judicial Board of the Supreme court of the Russian Federation correctly comes to the conclusion at judgments, in questions of regulation of town-planning activity shall be performed by the public authority authorized for that, within own powers, according to the existing Federal regulations and not to violate the basic principles of the state-legal device, in particular the principles of differentiation of questions of conducting between the Russian Federation, subjects of the Russian Federation and local government, independence of local government in the Russian Federation. [18]
At the same time, in the current legislation of the Russian Federation in relation to the level of local self-government, a ban on the attribution to the powers of public authorities of the subject of the Russian Federation of the powers of local self-government in the areas of municipal property management, the formation, approval and execution of the local budget, the protection of public order, the establishment of the structure of local self-government, changes in the boundaries of the territory of the municipality, as well as some other powers, including, if they are somehow connected with the implementation of urban development. [19]
According to the author of one of the modern articles on the implementation of innovations of the Federal law № 131-FZ - in the case of evaluation of innovation in the conceptual plan, the decentralization of regulation of these relations is caused, apparently, on the one hand, their complexity, and on the other - the need for a more rapid and differentiated approach to solving the problems of management of the territories of municipalities. [20]
Today, a significant feature of administrative - legal regulation of powers of subjects of public authority in the field of the activities also consider it necessary to call imposed by article 8.1 of GRK of the Russian Federation control over observance by public authorities of constituent entities of the Russian Federation, local self-government bodies of legislation on urban development, which sets as the specifics of the regulatory Federal body of Executive authority, forms of control over the observance by public authorities and local governments of the legislation on town-planning activity, but also control over the forms of organization of the implementation of such legislation. Thus, there is a situation with the return in the past of the known Soviet period with the presence of the principle of supervision in the hierarchy of subordination to the branch of Executive power, but only with the features established by the modern state system.
Namely, the Federal Executive authority, which carries out functions on development and implementation of the state policy and normative legal regulation in the sphere of construction, architecture, town-planning, public authorities of subjects of the Russian Federation, carries out the state control over observance by public authorities of subjects of the Russian Federation, local governments of the legislation on town-planning activity, including:
1) compliance of normative legal acts of subjects of the Russian Federation, municipal legal acts with the legislation on town-planning activity;
2) observance of the terms established by Federal laws of reduction of regulatory legal acts of subjects of the Russian Federation, municipal legal acts in compliance with requirements of GRK of the Russian Federation;
3) observance of the procedures established by the legislation on town-planning activity for preparation and approval of documents of territorial planning, rules of land use and building, documentation on planning of the territory, town-planning plans of the parcels of land.
It is necessary to correctly identify the subjects and objects of this type of control in the field of urban development, and its subject. Namely, subjects of this control are appointed: the first - Federal Executive authority - the Ministry of construction and housing and communal services of the Russian Federation (further -The Ministry of construction of the Russian Federation), carrying out functions on development and implementation of the state policy and normative legal regulation in the sphere of construction, architecture, town planning (except for territorial planning, land management which are in jurisdiction of other authorized state body), the industry of construction materials, pricing and estimated regulation, technical regulation, control of observance by public authorities of the subjects of the Russian Federation of the legislation on town-planning activity, and the second - public authorities of subjects of the Russian Federation. Federal public authority real control and authority established by paragraph 7.1 of article 6 of the UDC, and in relation to other existing view of the subject, think it's right to point out the peculiarity stemming from the part 1.1 of article 6 § 1 of GRK of the
Russian Federation with a possibility of transfer of the Russian Federation such powers to the bodies of state power of subjects of the Russian Federation in respect of local authorities.
Thus, according to the norms of article 8.1 of the RF civil Code, the objects controlled by the control measures of the Federal state authority are, first, the state authorities of the subjects of the Russian Federation, and secondly, the local authorities. The latter control is exercised both by the Federal state authority, namely the Ministry of construction of Russia, and by the regional state authority, with regard to local self-government.
In the sense of the stated norm, Federal control is exercised in the field of observance of the legislation on town-planning activity and concerning public authorities of subjects of the Russian Federation and local government, and public authority at the level of regions of the Russian Federation shall exercise control of observance of such legislation only over activity of local government in the designated town-planning sphere, thus reporting to Federal authority only for the fact of carrying out the specified control. In such a situation, the local government is put in the framework of extremely unequal and dual need for accountability of regulatory authorities.
Thus, the established control powers over compliance with the legislation on urban planning are two-level, and are considered to be an obvious, possibly negative, even problematic, feature of the current system of power in the Russian Federation in the field of urban planning, in the absence of clear and transparent acts of regulatory - legal support of such control, as well as in the absence of clear powers for the local government in the conduct of any control over the various entities in the event of urban relations and legal relations and conduct of urban development activities by such entities.
Thus, for officials authorized to monitor compliance with the legislation on urban planning, the right to conduct inspections of the activities of public authorities at the level of the subject, local self-government bodies, and organizations subordinated to them, to require managers and other officials to provide the necessary documents, materials and information, as well as to receive from the heads and other officials of public authorities of the subjects of the Russian Federation, local governments explanations on the established facts of violation and so forth [21]
At the same time, the Federal Executive body when carrying out the powers entrusted to it, shall be guided by specially established administrative regulations, both at the level, and on execution of the state function of control and supervision of legality of legal acts of subjects of the Russian Federation and, of course, local governments in the field of town-planning activity, and their official regulations and instructions shall conform to the basic principle of openness and transparency of all rules and regulations when carrying out control functions and Supervisory actions.
it should be borne in mind that a characteristic feature of the relations between the controlling bodies and the persons under its control will be the lack of strict obligation of subordination of the latter to the established controlling bodies. This point effectively affects the scope and composition of the control powers of the Executive bodies of state power aimed at the objects of control. Under the object of control itself it is necessary to understand the daily activities of the relevant subjects of public authority, its compliance with the norms, regulations and requirements of the regulations, which, among other things, are established by normative legal acts of various levels. However, it should also be borne in mind that the concepts of "state control" and "supervision" are not identical. Thus, GRK of the Russian Federation for Supervisory authorities the right directly to interfere with operational activity of bodies, the organizations, organizations, applying measures of administrative influence is not established. But, at the same time, such legal effects should be described as imperative, as it follows from part 3 of the above article. And types of responsibility, nevertheless, the bases for attraction and the order of attraction to responsibility of officials is carried out according to the established legislation of the Russian Federation regarding administrative responsibility. [22]
As part of the execution of control powers in this activity, the Government of the Russian Federation decided to adopt and approve the relevant comprehensive lists of necessary procedures provided for in the field of construction, but taking into account the peculiarities of urban development activities in the territories of the Russian Federation, as well as municipalities, the procedure for making changes to these lists and the procedure for maintaining a register of descriptions of established procedures specified in such lists. Thus, on the basis of an exhaustive list of procedures in the field of housing construction (hereinafter - the Exhaustive list) [23], contains 134 procedures, which in turn are associated with:
-granting of any right to land plots and preparation of documentation on the planning of the territory in respect of land categories of settlements with the relevant types of permitted use;
-conclusion of contracts for connection (technological connection) of capital construction projects to engineering and technical support networks;
-directly design, including architectural, and also execution of architectural and construction part and the corresponding sections of design and working documentation;
-the receipt and (or) the issuance by the competent authorities construction permits, and commissioning of object of capital construction in operation, inspections of state construction supervision;
-implementation of the stage of creation (construction), i.e. construction, reconstruction of capital construction projects;
-state registration of rights to newly created and (or) changed as a result of reconstruction, transformation of the real estate object;
-contracts of electricity, heating, water, gas and sanitation and many others. A special feature can also be called the establishment of a mandatory ban on the implementation of procedures not provided for by such Exhaustive lists in respect of individuals and legal entities that are subjects of urban relations, as well as - implementation of procedures not provided for in the Exhaustive lists of procedures in the field of construction, in respect of individuals and legal entities that are subjects of urban relations, in order to prepare such individuals and legal entities documentation on the planning of the territory, the implementation of architectural design, construction, reconstruction of capital construction projects is not allowed.
Meanwhile, the order of the Government of the Russian Federation of April 30, 2014, approving this Exhaustive list, indicates the activities of even more of this ban, prescribing the Ministry of Construction of Russia, other interested Federal Executive authorities, within three months to submit in the prescribed manner agreed proposals for the introduction of changes in Federal laws and regulatory legal acts of the Government of the Russian Federation, providing for the abolition of excessive and (or) duplicate procedures specified in the adopted lists. In this case, the fact of the execution of the prescribed activities, the subjects of the Russian Federation suggest that the public authorities themselves to submit proposals and (or) the exclusion procedures provided by normative legal acts of the Russian Federation, municipal legal acts in Exhaustive lists, according to the municipalities that considered a violation of the established order in terms of redistribution of powers and responsibilities between the Executive authorities. [24]
Another important feature of the administrative and legal regulation of the powers of public authorities in the field of urban planning can be called participation in the implementation of powers in the field of urban relations carried out by public authorities of the Russian Federation, subjects of the Russian Federation and local authorities through the establishment and execution of special procedures in the form of approvals of projects of urban planning documentation, such as draft master plans, conciliation commissions and (or) joint preparations of such documentation.
In this case, I agree with the author of the dissertation research S. A. Burmistrova, who in her work indicates that the legal regulation of territorial planning of municipalities can not always be considered successful. Also, it considers the development of the concept of territorial planning in the previous and modern urban planning legislation at certain stages, noting that the regulation of a number of issues in the field of territorial planning in the transfer to the level of the subjects of the Russian Federation, becomes particularly acute in the form of the problem of the absence in most subjects of the Russian urban planning statutes, codes, laws on urban planning, as well as regulations of local governments governing the development, adoption of, execution of documents of territorial planning of municipalities. [25]
Thus, in accordance with part 5 of article 12 and part 3 of article 15 of the civil Code of the Russian Federation, the local authorities consider the draft schemes of territorial planning of the Russian Federation and the subjects of the Russian Federation, if the design planning of construction decisions of the object of Federal importance requires to take into account the current provisions of previously approved or design decisions of master plans of urban districts, settlements, other municipalities, their parts.
Article 20 and article 25 of the GRC of the Russian Federation establish lists of cases, as well as features in the coordination of draft schemes of territorial planning of the municipal district and the draft master plan of the settlement, the draft master plan of the city district with the authorized Government of the Russian Federation
by the Federal Executive authority and Thus coordination is carried out in the order established by the separate legal act of authorized body. [26] At the level of regional authorities of constituent entities of the Russian Federation can cite the example of Sverdlovsk oblast, namely the order of the Ministry of construction and infrastructure development of the Sverdlovsk region of 09.04.2014 № 106-P "On approval of the order of reception and consideration of documents of territorial planning of municipal formations located on the territory of Sverdlovsk region", including - "The order of acceptance and consideration of documents of territorial planning of the municipalities located in the territory of Sverdlovsk region for the accounting of the eliminated remarks on earlier issued conclusions of the Government of Sverdlovsk region" and "the Order of acceptance and consideration of modification of documents of territorial planning of the municipalities located in the territory of Sverdlovsk region". [27]
Or, as provided for in article 27 of the RF civil Code, joint preparation of draft territorial planning documents with Federal Executive authorities, Executive authorities of subjects of the Russian Federation, as well as with local authorities of other (neighboring) municipalities, in the development of territorial planning documents for local authorities can be carried out in order to ensure sustainable development of territories:
1) at planning of placement of objects of Federal value, objects of regional value provided by documents of territorial planning of the Russian Federation, documents of territorial planning of the subject of the Russian Federation, in territories of the settlement, the city district, the inter-settlement territory of the municipal area, territories of several municipalities;
2) at planning of placement of the objects of local value of the municipal area provided by documents of territorial planning of the municipal area in the territory of the settlement which is the part of such municipal area;
3) when planning the placement of objects of regional importance, objects of local importance in the territories of other subjects of the Russian Federation or other municipalities;
4) at establishment of restrictions of use of the parcels of land and capital construction objects located within zones of protection of objects of cultural heritage of Federal or regional value.
And the regulatory legal act establishing the order of joint preparation of the draft document of territorial planning or drafts of documents of territorial planning, structure, the order of creation and activity of the Commission is the order of the Government of the Russian Federation of 16.04.2012 No. 326 "About the statement of Regulations on joint preparation of drafts of documents of territorial planning" which was approved only in 2012. [28] Thus refusal of joint preparation of drafts of documents of territorial planning in the cases established by point 4 of this Provision is not allowed.
A separate issue is relevant to consider the features of administrative and legal regulation of the powers of public authorities in terms of architectural activity in the Russian legislation, which sounds like architectural design, fully applies and is a special component of the field of urban planning and urban relations, in accordance with paragraph 1 of article 1 of the civil Code of the Russian Federation, including, and in particular, as the development of architectural art related to the creative process.
Conclusion
In General, the relations arising in the process of professional activity of the architect to create architectural objects in order to ensure a safe, environmentally friendly, socially and spiritually complete, favorable environment of human and society, referred to the architectural activity, regulates the Federal law "On architectural activity in the Russian Federation" of 17.11.1995 № 169-FZ (hereinafter Federal law № 169-FZ), etc.
According to article 1 of this Federal law No. 169-FZ, it is aimed at the development of architectural art, the promotion of the protection of works of architecture, historical and cultural monuments, as well as natural landscapes. In the second article of this Federal law stated that it must determine the rights, obligations and responsibility of citizens and legal entities engaged in architectural activities, as well as bodies of state power, bodies of local self-government, customers (developers), contractors, owners (owners) of architectural objects. However, further on the text of such norms, actually applicable in modern conditions, contains little, moreover, it is this Federal law today is the most inconsistent with the norms of other Federal laws and regulations, including, importantly, the Russian civil Code, also in terms of determining the powers of public authorities in the field of urban development, which in turn includes architectural and construction design.
In accordance with article 22 of the Federal law No. 169-FZ, which, in fact, should establish the competence of the bodies of architecture and urban planning in the field of architecture, contains only framework functions, often not corresponding to the current legislation of the Russian Federation in the field of urban planning regulation.
This article also establishes the formation of a unified system of Executive power in the field of architecture is authorized by the Government of the Russian Federation the Federal Executive authority for the coordination of activities in the field of architecture and urban planning, and related bodies of constituent entities of the Russian Federation. The bodies of architecture and urban planning carry out their activities on the basis of urban planning legislation, this Federal law and the relevant provisions on the bodies of architecture and urban planning. In pursuance of the specified point the resolution of Gosstroy of the Russian Federation of 05.11.1997 N 18-65 approved "Approximate regulations on body of architecture and town-planning of Executive power of the subject of the Russian Federation" (further - Regulations on body of architecture" (it is considered that it is applied in the part which is not contradicting GRK of the Russian Federation).
In accordance with paragraph 5 of Chapter I of this Regulation on the body of architecture, the body of architecture and urban planning exercises control over the implementation of Federal laws "On the basics of urban planning in the Russian Federation", "On architectural activities in the Russian Federation", other laws and regulations of the Russian Federation and the subject of the Russian Federation on matters within their competence, regulates architectural and urban planning activities in the territory of the subject of the Russian Federation, coordinates the work of participants in the legal relations in the field of architectural and urban planning activities, interacts with the bodies of architecture and urban planning of local self-government and directs their work in the implementation of their state powers. [29] at the Same time, unambiguously, it is not possible to be guided by norms of administrative and legal regulation of this Provision today, including as a result of framework and loss of relevance of norms for application in modern system of the legislation of the Russian Federation, its subjects and local governments that in turn demands addition and structuring, and also reduction in compliance with requirements of other regulatory legal acts and is a separate subject of consideration. and functioning of institutions of the penal system, regardless of their formal designation.
References
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2. Savchenko N. Ah. The problem of differentiation of competence of subjects of the Russian Federation and the Russian Federation in the field of urban planning // Legal issues of construction. 2014 N 1. P. 9 - 12.
3. Kuchmaeva S. N. Sidorov Yu. V. Features of urban planning legislation, its place in the system of administrative law. Scientific article. Scientific-methodical journal "science and education" No. 18 (40), 2018, p.56-62.
4. Resolution of the constitutional court of the Russian Federation of March 28, 2017 n 10-p "On the case of checking the constitutionality of part 4.1 of article 63 of the RF civil Code and article 23 of the Federal law "On amendments to the Code of administrative offences and certain legislative acts of the Russian Federation and on the invalidation of certain provisions of legislative acts of the Russian Federation in connection with the clarification of the powers of state bodies and municipal bodies in terms of state control (supervision) and municipal control" in connection with the request of the legislative Assembly of St. Petersburg".
5. Antonova N. Ah. "Differentiation of powers between the Federation and the subjects of the Russian Federation in the field of regulation of local self-government"// Constitutional and municipal law. 2015. N 4. P. 64 - 67.
6. Part 5 and 6 of article 1 of the Federal law of 06.10.1999 N 184-FZ "About the General principles of the organization of legislative (representative) and Executive authorities of subjects of the Russian Federation".
7. Articles 26.7 and 26.8 of the Federal law of 06.10.1999 N 184-FZ "About the General principles of the organization of legislative (representative) and Executive authorities of subjects of the Russian Federation".
8. The Federal law of December 29, 2004 N 191-FZ "About introduction of the town-Planning code of the Russian Federation".
9. The letter of the Ministry of construction and housing and communal services of the Russian Federation of 11.12.2017 n 46347-ON/06 and Methodical instructions on reduction of regulatory legal acts of subjects of the Russian Federation and municipal legal acts in compliance with requirements of the Federal legislation.
10. Comment to the town-Planning code of the Russian Federation of December 29, 2004 N 190-FZ" (resp. N. N. Melnikov), 2017
11. Articles 49 and 49.1 "the town-Planning code of the Russian Federation" of 29.12.2004 N 190-
FZ.
12. Part 1.2 of article 17 of the Federal law of 06.10.2003 N 131-FZ "About the General principles of the organization of local government in the Russian Federation".
13. The law of Sverdlovsk region of 12.10.2015 N 111-OZ "ABOUT redistribution of separate powers in the field of town-planning activity between local governments of municipality "the city of Yekaterinburg" and public authorities of Sverdlovsk region" (it is accepted by Legislative Assembly of Sverdlovsk region 06.10.2015).
14. Appeal determination of Judicial Board on administrative cases of the Supreme Court of the Russian Federation of 30.08.2016 N 46-APG16-10.
15. Part 1 of article 130 "of the Constitution of the Russian Federation" (taking into account the amendments made by Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of 30.12.2008 N 6-FKZ, of 30.12.2008 N 7-FKZ, of 05.02.2014 N 2-FKZ, of 21.07.2014 N 11-FKZ).
16. Sviridov N. N. About some problems in the field of redistribution of powers between local governments and public authorities of subjects of the Russian Federation // State power and local self-government. 2018. N 1. P. 30 - 34.
17. Uvarov A. A. Redistribution of powers of local governments (analysis of legislative innovations) // Municipal service: legal issues. 2016. N 2. P. 23 - 27.
18. The appeal determination of the Supreme court of the Russian Federation from 08.06.2017 g n 20-Anr17-8.
19. Part 1.2 of article 17 of the Federal law of 06.10.2003 № 131-FZ "On General principles of organization of local self-government in the Russian Federation".
20. Uvarov A. A. Redistribution of powers of local governments (analysis of legislative innovations) // Municipal service: legal issues. 2016. N 2. P. 23 - 27.
21. Part 2 of article 8.1 "the town-Planning code of the Russian Federation" of 29.12.2004 N 190-
FZ.
22. "The code of the Russian Federation about administrative offenses" of 30.12.2001 N 195-FZ (edition of 29.05.2009) (with izm. and DOP., entry. in force with 09.06.2009).
23. Order of the Government of the Russian Federation of 30.04.2014 N 403 "About the exhaustive list of procedures in the field of housing construction" (together with "Rules of modification of the exhaustive list of procedures in the field of housing construction", "Rules of maintaining the register of descriptions of procedures specified in the exhaustive list of procedures in the field of housing construction").
24. Letter from the Government of Sverdlovsk region. Administration of the Western administrative district to Heads of municipalities of the Western administrative district of Sverdlovsk region (according to the list) "About submission of information with offers on inclusion of the procedures provided by regulatory legal acts of the Russian Federation, municipal legal acts in exhaustive lists".
25. Burmistrova S. A. Powers of local governments in the field of urban planning: autoref. dis. ... kand. the faculty of law. sciences'. Chelyabinsk, 2009. P.7.
26. Order of the RF Ministry of economic development from 21.07.2016 N 460 "About approval of the procedure for coordination of projects of documents of territorial planning of municipal formations, the composition and functioning of the conciliation Commission in coordination of projects of documents of territorial planning".
27. Order of the Ministry of construction and infrastructure development of the Sverdlovsk region of 09.04.2014 № 106-P "On approval of the procedures for the reception and consideration of documents of
territorial planning of municipalities located in the Sverdlovsk region", including - "The order of acceptance and consideration of documents of territorial planning of the municipalities located in the territory of Sverdlovsk region for the accounting of the eliminated remarks on earlier issued conclusions of the Government of Sverdlovsk region" and "the Order of acceptance and consideration of modification of documents of territorial planning of the municipalities located in the territory of Sverdlovsk region".
28. Resolution of the Government of the Russian Federation of 16.04.2012 № 326 "On approval of the Regulations on joint preparation of draft documents of territorial planning".
29. Resolution of Gosstroy of the Russian Federation of 05.11.1997 N 18-65 "About the statement of Approximate regulations on body of architecture and town planning of Executive power of the subject of the Russian Federation".
