Environmental and town planning legislation
Combination of nature protection and town planning requirements and principles
A clear example of the greening of the United States legislation is the penetration of environmental requirements into the legislation on urban development - a combination of principles of legal protection of the natural environment and principles of urban development, the preservation of cultural and natural heritage in cities, and environmental security in settlements. As a result of such interpenetration, a problem arises between the relationship between environmental and town-planning legislation, environmental and town-planning requirements and principles. It may be a question of the correlation of these branches of legislation and their requirements, but not of the branches of law, since, as admittedly, the town-planning law has not yet been formed due to the lack of independent subject, methods, system of regulation.
Town planning legislation regulates completely or partially urban planning activities, that is, relations on territorial planning, town planning zoning, territory planning, architectural and construction design, relations for the construction of capital construction and reconstruction facilities, as well as for major repairs, which involve constructive and other characteristics of reliability and safety of such objects.
The complex nature of urban planning legislation is determined by the fact that it includes the norms of environmental (nature protection, nature-resource) municipal, constitutional, administrative, civil, financial, information, procedural branches of law and legislation, peculiarly and intricately intertwined and interacting with each other when regulating town-planning and related environmental public relations.
Most of the provisions and principles of the GRK are of an ecological or environmental character proving the importance of the environmental component of urban development and therefore worthy of consideration from the standpoint of environmental law. So, provided in art. 2 GRK principles receive their full further development in subsequent articles and norms of the GRK, where they are filled with concrete content, are manifested in the establishment of ecological, town-planning legal relations. Environmental requirements are prioritized among other principles of legislation on urban development.
And this is natural: the natural conditions of life in the city take an ever greater place among other factors of life, which can be traced in most of the norms of the GRK. The envisaged basic principles of the legislation on town-planning activity are also to a greater or lesser extent related to the provision of favorable, primarily natural, living conditions and human activities in the city. For urban planning is fundamental art. 44 FZ on Environmental Protection "Environmental requirements for the deployment, design, construction, reconstruction of urban and rural settlements."
Fundamental, but still pose a practical problem, may be its following requirements:
- ensuring a favorable state of the environment for human life, as well as for the habitat of plants, animals and other organisms, the sustainable functioning of natural ecological systems;
- the placement of buildings, structures, structures, taking into account the requirements in the field of environmental protection, sanitary and hygienic standards and urban requirements;
- the adoption of measures for the sanitary cleaning, neutralization and safe disposal of production and consumption waste, compliance with the standards of permissible emissions and discharges of substances and microorganisms, as well as on the restoration of the natural environment, land reclamation, landscaping;
- the creation of protective and security zones, including sanitary protection zones, green areas, green zones, which include forest park areas and other protective and security zones, which have been withdrawn from intensive economic use, with limited use of nature.
These and other environmental requirements and principles stipulated in the environmental, as well as in natural resource legislation, can not but interact with the principles of urban development, provided for in Art. 2 and other GRK. So, the sense of the principle of construction on the basis of the documents of territorial planning and the rules of land use and development is seen in the fact that in the presence of many documents of town-planning activity stipulated in the GRC and other normative legal acts, these land documents are fundamental, necessary, indispensable, binding, and is one of the most important short stories of the GRC, linking town planning activities with the requirements of land legislation.
Town planning requirements are often interspersed with land, civil law, etc. The Presidium of the US Supreme Arbitration Court considered on April 15, 2008 the statement of the individual entrepreneur C. and found: Ch. sued the limited liability company "Hotel"; on the obstruction of the reconstruction of the damaged non-residential building belonging to the plaintiff on the right of ownership of the non-residential building and on the obligation to admit the necessary mechanisms and equipment to the protected construction site of the plaintiff, contractors, for the entire period of restoration work on the territory of the urban settlement. In the response to the application of LLC "Hotel submitted documents on the absence on his land of any remains of the building owned by the entrepreneur, which, by virtue of Art. 235 CC entailed the termination of the right of ownership of the latter to this object and the automatic termination of the right to use part of the land plot.
The entrepreneur is the owner of the store building. According to the certificate of the Department of State Fire Supervision in the Shchelkovo District of the Moscow Region dated January 12, 2007, the building of the store was damaged by a fire. This object is located on the land plot acquired by the company; ownership of the LLC is confirmed by a certificate of state registration of law. During the trial, it was established that the defendant protected the land plot all around the perimeter in connection with the ongoing construction of the shopping and hotel center, as a result of which the plaintiff was deprived of the opportunity to operate the store, and after the building was damaged by a fire, the fence prevented its restoration.
The entrepreneur to operate the shop building land plot in the manner prescribed by law was not provided, and contractual relations on the issue of land use between the parties were not drawn up. Perhaps Ch., Demanding the establishment of a servitude, chose the wrong way to protect the law, because he did not apply to the defendant. The entrepreneur's ownership of the store building is confirmed by a certificate of February 19, 2007, according to which the state registration of the right was carried out on the basis of an act of state acceptance of the building approved by the order of the first deputy head of the Shchelkovsky district of the Moscow region. In the technical passport compiled by the Shchelkovsky branch of the State Unitary Enterprise "Moscow Regional Bureau of Technical Inventory" as of January 17, 2007, contains information on the availability of certificates of state registration of law.
Thus, the right of ownership of the entrepreneur to the real estate object on the territory of the urban settlement is confirmed by proper evidence. In this regard, the right to use part of the defendant's land plot belongs to the plaintiff by virtue of direct indication of the law. According to paragraphs 1 and 2 of Art. 271 of the Civil Code, the owner of a building or other real estate located on a land plot belonging to another person has the right to use part of the land plot necessary for the operation of this building. The transfer of ownership of a land plot to another person is not grounds for termination or change of the owner's right to use the land plot. Paragraph 3 of the same article provides that the owner of real estate located on a foreign land plot has the right to own, use and dispose of this real estate at its own discretion insofar as this does not contradict the conditions of use of this site established by law or contract.
Therefore, the owner of such a property is not deprived of the right to use part of the site necessary for maintenance and restoration of the object. Proceeding from paragraph 2 of Art. 35 ZK the area of the part of the land plot occupied by the building and necessary for its use is determined in accordance with cl. 33 ZK. The court should be guided by the norm of Art. 6 of the Civil Code on the application of legislation governing similar relations. By virtue of Art. 39 ZK at destruction of a building, a structure, constructions from a fire, acts of nature, dilapidation of the right to the ground area given for their service, are reserved for the persons owning the ground area on the right of constant (perpetual) use or lifelong inheritable possession, under condition of the beginning of restoration of a building , buildings, structures for three years. In connection with the foregoing, the plaintiff as a legitimate user of a part of the land plot has the right to repair and restore the building, and the actions of the defendant interfering with the restoration of the building violate the rights of the plaintiff.
In accordance with Art. 51 GRK to obtain permission to build, restore or reconstruct the building, the claimant must submit title documents to the land plot. Under such circumstances, the entrepreneur reasonably applied to the arbitration court with a claim for recognition of the right to use a part of the land plot belonging to the company, and his claim does not contradict Art. 9 of the Civil Code, according to which citizens and legal entities at their own discretion exercise their civil rights, and in case of violation of rights, they independently choose ways of protection, referring to the court. The claim submitted by the entrepreneur for recognizing the right to use part of the land plot and removing obstacles to such use, that is, to restore the situation that existed before the violation of law, as well as to suppress actions that violate his rights, corresponds to the ways of protecting civil rights provided for in Article 12 GK. The issue of establishing the size of the land plot necessary for the plaintiff to exercise his right and to ensure the possibility of restoring property was not examined by the courts in substance, the case in this part is subject to transfer to a first-instance court for new consideration.
Freedom of participation of citizens and their associations in the implementation of urban development is based on the norms of the Constitution, the State Committee for Agriculture, other federal, as well as regional (constituent entities of the United States) and municipal regulatory legal acts. The experience of the last two decades shows that the main activity of residents in the point of development of cities and other urban development is manifested when infringement of their environmental rights and interests through the forms provided for in environmental legislation. The principle of citizens' participation in the management of state affairs is based on Art. 32 of the Constitution on the right of citizens to participate in the management of the affairs of the state, both directly and through their representatives, art. 33 of the Constitution on the right of citizens to apply personally and to send individual and collective appeals to state bodies and local self-government bodies, art. 31 of the Constitution on the right to hold meetings, rallies and demonstrations, marches and pickets.
In accordance with the provisions of the Federal Law of 19.05.1995 No. 82-FZ "On Public Associations" parties, public organizations, trade unions, commercial and non-profit public associations should act on the basis of United States legislation and in accordance with their charters. In cities of federal importance, Moscow and St. Petersburg and a number of US entities have passed laws on the participation of residents in the discussion of urban development projects, in architectural planning and urban planning. Thus, Moscow adopted the Law of Moscow from 25.06.1997 No. 28-51 "On the Protection of Citizens' Rights in the Implementation of Town-Planning Decisions in the City of Moscow".
The principle of Art. 2 ГрК about responsibility of the state and municipal bodies for maintenance of favorable conditions of ability to live of the person has obviously expressed ecological character. Under favorable conditions of life, one can understand, along with natural conditions, such factors as the realization of the citizens' right to choose a place of residence, the observance of sanitary rules, the rational placement of recreational and recreational facilities, the enterprises of social and cultural services for the population, the accessibility of places of work and recreation, .
The definition of the essence of favorable conditions of life is based on the norms of Art. 41 of the Constitution on the mores of everyone on health and medical care, art. 42 of the Constitution on the right of everyone to a favorable environment. More precise parameters are stipulated in the legislation on sanitary-epidemiological well-being, sanitary-epidemiological surveillance, health care, and environmental protection as an important condition and factor for ensuring proper health.
The GRK implies a list of subjects - public authorities, designed to take care of favorable conditions for human life. In Art. 1 GrK 1998, these public authorities were included in the number of subjects of urban development. In the current GRK there is no such list, apparently due to its incompleteness, openness, and the absence of legal consequences of such a list. The delineation and at the same time the combination of norms, requirements and principles of environmental, natural resource and town planning legislation presently presents the problem of accounting and systematization of numerous acts that provide for them.
The demarcation of town planning, environmental and other functions between US state authorities, state authorities of the United States and local governments is carried out by Presidential Decrees No. 314 of 09.03.2004 "On the System and Structure of Federal Executive Bodies" and from May 20, 2004, No. 649, "Issues of the Structure of Federal Executive Bodies," Federal Law No. 122-FZ of 22.08.2004 "On Amending the Legislative Acts of the United States and Recognizing the Invalidity of Certain Acts of the United States in Connection with the Adoption of Federal laws "On Amendments and Additions to the Federal Law" On General Principles for the Organization of Legislative (Representative and Executive Bodies of State Power of the Subjects of the United States "and" On General Principles for the Organization of the Month " "On the Introduction of Amendments to the Legislative Acts of the United States in Connection with the Expansion of the Powers of the State Authorities of the Subjects of the United States in the Subjects of the Joint Power of the United States and the Subjects of the United States", Grk, Federal Law No. 199-FZ of December 29, 2004, Federation, as well as with the expansion of the list of local issues of municipalities ", other laws adopted in 2005-2010.
The principle of objective legal responsibility is inherent in all branches of law and legislation and presupposes the inevitability and universality of legal responsibility of individuals and legal entities for violations in the field of environmental protection and urban development. The disclosure of this principle is devoted to art. 58-62 Ch. 8 "Responsibility for violation of legislation on urban development" GRK. A lot of research has been done on the responsibility for violating the ecological aspects of town-planning activity.
Environmental rules and requirements of urban development, for violation of which can occur different types of legal liability, are established not only in the State Committee for Housing, but also in the regulatory legal acts of the United States subjects, municipalities (local government). Thus, the Town Planning Code of the Leningrad Region provides for the owner of the real estate to receive, in accordance with the procedure established by the town planning regulations in the Leningrad Region, the permission to develop a project for the construction of new and reconstruction, expansion, alteration of existing buildings and structures on the site belonging to him, and after agreeing and approving the project - permission for construction and installation work; coordinate their actions with neighbors - owners, owners, tenants and other users of land and other real estate in cases that affect their interests.
A significant part of the offenses related to urban development are environmental violations, which once again determines the relationship between environmental law and town planning legislation. Analysis of the principles of environmental law and legislation on urban development shows the intertwining of principles relating to various branches of law, confirms the complex nature of the legislation on urban development and its ecologization, emphasizes the priority in urban development of care for the human environment, that is, about favorable conditions for his residence, natural environment.
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