Where do the human settlements begin and end?

14-03-2018

Someone thinks that the boundaries of an administrative-territorial unit are a conditional line, where a city ends. At the same time, specialists in spatial planning, land management and cadaster believe that this idea covers a comprehensive range of troublesome problems, which have not been solved for years and the consequences of which affect everyone.

What do actually the boundaries determine?

The boundaries of administrative-territorial units determine quite real things – the land management functions of local self-government and executive authorities. We have the right to choose a land plot for privatization or lease precisely within these boundaries and apply to an appropriate body to obtain it. In order to start negotiations with the authorities, any investor planning to invest in promising construction projects first and foremost will ask, “Where does a city end?”

The boundaries of administrative-territorial units influence the possibility to establish a normative-monetary valuation of land plots, set a land tax and hence to fill local budgets. It is because the land tax is paid to the budget of a territorial community, where a land plot is located. And this implies both the future development of the settlements’ infrastructure and many other urgent problems, which are solved using budget funds.

Lastly, the boundaries of administrative-territorial units determine the territory that will become a focus of activities of urban planning specialists. After all, how is it possible to perform spatial planning activities without being aware of a “scope of work”?

However, often the boundaries, or more precisely, the boundaries, which are not clearly defined, may have a destructive impact creating situations when several government bodies claim to control the same land plot. This is the very case, when people and sometimes the whole communities are divided by borders.

The city of Kherson can be a vivid example of this situation. The interest to the boundaries of this city grew after the land plots of 2 hectares were privatized for private agriculture purposes by 36 individuals based on the order of the head of the regional State Geocadastre. These land plots share borders directly with one of the residential areas in Kherson.

According to the Kherson City Council, the inventory of city’s lands was carried out in the 60s of the last century, while additional territories were annexed in 1984 and 1989. During the years of independence, the city’s boundaries have not been determined, and a land management plan for establishing the boundaries of the administrative-territorial unit has not been developed at all.

In these circumstances, we can use the existing urban planning documentation and the Public Cadastral Map.

As of February 15, 2018, the State Land Cadastre included the data on 674 administrative-territorial units. However, they are not included to the cadastral map. As for Kherson, the State Geocadastre only drew a boundary line of lands mentioned above as a separate cadastral zone, which is allegedly located outside the human settlement, and included several tens of agricultural areas allocated in 2013 to this zone.

At the same time, the disputed territory is considered as urban lands in the general plan of Kherson.

The point is that a new geoportal “Hromada”, which, by the way, is also filled up by the State Geocadastre, defines one half of the disputed land area as a city’s territory, and the second half – as a territory beyond its borders.

In such a way, due to the uncertainty of Kherson boundaries, the land plots allocated by the head of the regional State Geocadastre “are in the air” – the city authorities and State Geocadastre officials see the Kherson boundaries in different ways, and, of course, everyone tried to take advantage.

What can become a regulatory factor in these circumstances? The answer is traditional: quality laws and open data.

There should be a larger variety of quality geoportals

In general, we were pleasantly surprised with the filling of the mentioned geoportal “Hromada”. The resource, first of all, was created to make the transfer of land plots to united territorial communities (UTC) public, but it also includes the boundaries of raions and settlements. Obviously, we are not talking about the accurate mapping of one hundred percent of boundaries, but we are satisfied with such an initiative of the State Geocadastre.

At the same time, there is a Geoportal of administrative-territorial system of Ukraine developed on behalf of the Minister of Regional Development, Construction, Housing and Utilities. It turns out that we now have two geoportals that contain information about administrative-territorial units, although according to the current legislation, the Public Cadastral Map should be the web resource, where their boundaries will be displayed. However, it contains no boundaries.

“Obtaining a land plot for construction in the direct neighborhood with the boundaries of the settlement is an additional risk for investors. No one guarantees that a neighboring community will not declare its rights to this territory,” the Construction Sector Head at BRDO Olena Shulyak says. “Due to the fact that the boundaries of settlements were determined yet in Soviet times, often there are situations when it is impossible to 100% confirm the accuracy of these boundaries. For example, the boundaries of the city of Kyiv have not officially been determined since independence till now. If the capital provides such a model of delay, then other cities are slow to make their boundaries clearly defined.”

This situation is completely in the style of Ukrainian realities, and there is no surprise at all. But it would not hurt to return to the normal state of affairs. For example, the information on the boundaries of those 674 administrative-territorial units included in the State Land Cadastre should be added to the Public Cadastral Map. The next step can be to digitize the borders that were really defined, but they were not included in the cadastre.

As for the rest of settlements, one can determine the boundaries systematically throughout Ukraine on the basis of index cadastral maps. In order to avoid such situations as it happened in Kherson and determine the boundaries of an administrative-territorial unit accurately, it is important to use data on the boundaries of village and township councils, former collective farms and state-owned farms for comprehensive activities.

After these activities are over, the data on the boundaries of administrative-territorial units should be displayed on the Public Cadastral Map as a separate element. When clicking on a city, village or township, the information on when the boundaries were established and by which order they were approved should appear. When clicking on settlements, the boundaries of which were determined on the basis of index cadastral maps, this information should also be provided.

Such ideas do not claim to be the ultimate truth, but they are dictated by the experience of searching for information about the boundaries of cities, and the proposed model would be easy to use.

Legislative context

Today, you can count provisions of the current legislation, which regulate establishing and changing the boundaries of administrative-territorial units, with the fingers of one hand. These are some articles of the Constitution of Ukraine, the Land Code, Laws of Ukraine “On Land Management” and “On the State Land Cadastre”.

But the content of these few provisions is a matter of concern for specialists.

For example, on February 14, 2018, the NGO “Association of Land Management Specialists of Ukraine” held a nationwide roundtable on “Problems of establishing boundaries between administrative-territorial units and united territorial communities”. During the discussion, mainly the requirements for the land management plan’s data set forth in Art. 46 of the Law “On Land Management” caused the indignation. According to the specialists involved in establishing and changing boundaries in practice, the inaccuracy of requirements in this article (for example, including a general plan’s copy in the land management plan without specifying whether all the general plan’s data, which takes more than one hundred pages, or only some parts of the documents are required, etc.) leads to its divergent interpretations during the state examination of land management documents, so in two similar cases, one land management plan is approved, and the other – is not.

A separate aspect covers problematic issues that are not regulated by law at all: what to do if it is impossible to find the Soviet-era documents indicating a course of settlement’s boundaries, or if, as it sometimes happens, there is just the total area of ​​an administrative-territorial unit instead of the boundaries defined, or what to do when a city boundary divides private plots in half.

These issues, as well as the problem of agreeing borders with neighboring communities, often delay the process of establishing boundaries of administrative-territorial units for years with no prospects of being ever completed.

The video from the roundtable is available here and here.

It seems that all the disadvantages of legislative regulation of the procedure for establishing and changing the boundaries of administrative-territorial units should be resolved by a certain specialized law. Especially as the administrative-territorial reform has now been long overdue: under the Law of Ukraine “On voluntary unification of territorial communities”, the UTCs are created throughout the country, but the Constitution of Ukraine still does not consider them as components of the administrative-territorial system that threatens the legitimacy of ongoing processes.

The Verkhovna Rada Committee on State Building, Regional Policy and Local Self-Government agrees that it is necessary to adopt the specialized law.

“The principles of the administrative-territorial system and the procedure of establishing and changing boundaries are regulated by various legislative acts: the Constitution, the Land Code, and the Law “On Land Management”. In practice, this creates a number of problems, so the members of the relevant Committee have a clear stance: these issues should be regulated by a separate law,” the Committee’s chief consultant Yuriy Harbuz says.

Actually, the first step towards this has already been taken recently – the Cabinet of Ministers submitted a draft Law “On Principles of the Administrative-Territorial System of Ukraine” to the parliament. Meantime, the document has been only submitted to the relevant Committee, so it’s too early to speak of a thorough analysis of the text. “The draft law has not been completely reviewed. Probably, it will be amended, but in general, the Committee supports the adoption of such a law,” Mr.Harbuz says.

At the same time, Roman Marusenko, the PhD in Law, Associate Professor of the Department of Land and Agrarian Law of the Law Faculty at the Taras Shevchenko National University of Ukraine, points out the common weaknesses of the document. “It is important to read the explanatory note, as it describes in detail the real problems. And then we should compare it with the draft law and see what was implemented and in which way. Having looked briefly, I do not see the solution to all the problems in the note.” In such a way, the draft law still has some issues to work out and discuss in order to systematize it and submit for a plenary vote.

However, the current parliament will complete its term soon. If this draft law is considered as slow as it was submitted, then it will not be adopted by this Verkhovna Rada. Therefore, it is important not only to finalize this draft law in a professional way, but also to intensify activities on its advocacy in the parliament.

The sooner the legal gaps are resolved, the less often there will be cases similar to the situation in Kherson. The sooner we establish and make the real boundaries of human settlements publicly available, the less incentive the deal makers will have to allocate land plots in violation of community rights.

Written by Alisa Voytenko

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