Why It is Illegal to Build around the Lakes
1. A Detailed Plan of the Territory contradicts the current General Layout of Kyiv city 2020
The detailed plan of Osokorky territory of the district (DPT) under which the developer is acting was approved on November 27, 2009. Information on this DPT is available at the link http://kga.gov.ua/detalni-plani-teritoriji/11-ofitsijni-dokumenti/1196-detalnij-plan-teritoriji-rajonu-osokorki. In turn, this DPT was created on the basis of the draft General Layout 2025, which was not approved by Kyiv Council. According to the current General Layout 2020, there should be a large park zone on the territory between the lakes Martyshiv, Nebrezh and Tiahle.
Voting for the adoption of this DPT took place under some strange circumstances and, most likely, was falsified: https://www.facebook.com/viktor.zahorulko/posts/1135285796574808.
The draft General Layout 2025 was prepared at the time of the Mayor Chernovetskyi for the actual legalization of illegal construction and illegally allotted land plots.
2. Violations of urban planning terms and restrictions and of the Water Code of Ukraine standards
In the autumn of 2107, on the shore of Nebrezh lake, 40 meters from the water surface, a construction of 110/10 kW transformer substation was started with the purpose to supply electric power to future buildings.
According to the document “Urban planning conditions and restrictions on the development of land plot number 151/14/12/009-14 dated 16.07.2014” issued by the Department of Urban Development and Architecture, “Kontaktbudservice”, LLC must adhere to the following provisions:
– to ensure the implementation of the Water Code of Ukraine (coastal-protective lane of Nebrezh lake),
– land plots which, according to the current urban planning documentation, fall into the general purpose territory of green public landscapes, shall be used for landscaping without the right of development,
– when developing a design, to take into account the 50-meter coastal-protective lane of Nebrezh lake, to provide equipment for the common use park for inhabitants of residential neighborhoods within the limits of the lake coastal protective lane and on the adjacent territory, to implement the measures for the improvement of Nebrezh lake territory, to create a public space park zone around it, according to the layout scheme of Osokorky district..
According to Article 89 of the Water Code of Ukraine, it is prohibited to erect any structures in the coastal protective lane, except for structures of hydro-technical or navigation purpose, hydro-metric and linear structures.
According to Article 88 of the Water Code of Ukraine, the coastal protective lane constitutes 50 meters for medium rivers, reservoirs on them and ponds with an area of more than 3 hectares. If the steepness of the slopes exceeds three degrees, then the minimum width of the coastal protective lane shall be doubled.
The slopes of Nebrezh lake are about 30 degrees, respectively, its coastal protective lane is 100 meters.
Also, the developer should have a project for conducting works on the water fund lands, which should contain a section on the assessment of the impact on the natural environment, approved by the Ministry of Environment, the State Agency of Water Resources and the State Service of Geology and Mineral Resources.
Taking into account the above, the construction of this 110/10 kW substation severely violates the urban planning terms and restrictions and the provisions of the Water Code of Ukraine.
3. Violation of the protected landscape zone
On the scheme of the boundaries of the protected landscape zones in the city of Kyiv it is clearly seen that the area around Martyshiv, Nebrezh and Tiahle lakes is included in this zone.
According to Kyiv City State Administration Order No. 979 dated 17.05.2002 (http://kga.gov.ua/dp.kga.gov.ua/images/files/2_RKMDA_979.pdf), it is prohibited to carry out earthworks, construction work in this area without permission of the Administration for historical, cultural and environmental monuments protection. The developer does not have this document.
4. Violation of land allotment procedure
In 2005, during the times of city Mayor O.O. Omelchenko, “Kontaktbudservice” LLC received a long-term lease of 5 land plots with a total area of 176.5 hectares, located south of Kolektorna Street. The land allotment procedure took place with severe violations:
– in violation of Clause 3 of Article 123 of the Land Code of Ukraine, “Kontaktbudservice” LLC filed a petition to the city Mayor O.O. Omelchenko for granting a permit for the allotment of land, while it was necessary to file the relevant petition to Kyiv City Council.
– in violation of Clause 5 of Art. 123, Clause 7 of Art.118 of the Land Code of Ukraine, “Kontaktbudservice” LLC did not obtain the consent of Kyiv City Council for the development of a draft land plot allotment. The consent for the development of a draft land plot allotment, given Kyiv City Head in response to petition No. К-4262 dated April 15, 2005, cannot be acceptable and proper ground for drafting a land plot allotment, since the decision of Kyiv Council No. 512/672 dated 26.06.2003 conflicts the requirements of Clause 5 of Article 123, Clause 7 of Art.118 of the Land Code of Ukraine.
– in violation of Article 19 of the Constitution of Ukraine (state authorities and local self-governing authorities, their officials are obliged to act only on the basis, within the limits of powers and in the manner provided by the Constitution and laws of Ukraine), the mayor of Kyiv has gone beyond the powers granted and has given his consent to develop a draft land plot.
For these reasons, it can be assumed that all subsequent legal actions of “Kontaktbudservice”, LLC and Kyiv City Council, which are aimed at the registration of the right to use land plots, are insignificant and cannot have any legal consequences, except for the consequences associated with such insignificance.
– in violation of Clause 9 Art. 118, Clause 6 Article 123 of the Land Code of Ukraine, “Kontaktbudservice”, LLC did not agree the draft land allotment with the land resources authority, environmental protection and sanitary-epidemiological authorities, architectural and cultural heritage protection authorities. In accordance with the Conclusion No. 19-5345 dated July 5, 2005 (under a commission No. 12265 dated 13.04.2005, No. Д-1145 dated 17.05.2005) regarding the use of the land plot, prescribed urban planning restrictions and the terms to be taken into account when approving the draft land allocation located at the address: the municipality of Osokorky-Tsentralni (microdistricts 1,2,3,4,5,6), Darnytskyi district of Kyiv city, part of the land plot, according to the Program of Kyiv city green zone integrated development until year 2010 and the concept of landscaped areas formation in the central part of the city, developed by OJSC “Kyiv project” SE “Kyivhenplan Institute”, refers to the territory reserved for the creation of general use landscaped orderly territory (a park in the residential area Osokorky-Tsentralni). On the basis of the positive conclusion of the Standing Committee on Urban Development and Land Use No. К-4262 dated 12.05.2005, the applicant received the consent of Kyiv City Head No. Д-1145 dated 17.05.2005 for the development of a draft land allotment for development. It is obligatory to foresee the creation of the park area in the northern part of park zone plot around Tiahle lake. It has been determined that the Main Department of Urban Development, Architecture and Urban Environment Design does not deny (it was necessary to indicate “agrees”) the land allotment in accordance with the procedure established by law. In addition, from this Opinion it is seen that, in breach of Article 19 of the Constitution of Ukraine, having gone beyond the bounds of authority, the Conclusion of the Main Department of Urban Development, Architecture and Urban Environment Design No. 19-4554 dated 06.06.2005 has been deemed to become null and void.
Letters of the State Department of Ecology and Natural Resources in Kyiv city No. 06-6-75/2673 dated 30.06.2005, the Department of Environmental Protection No. 071/04-4-19/2328 dated 23.05.2005, the Main Administration of Culture, Arts and Cultural Heritage Protection No. 001-09/2730 dated 19.05.2005, Darnytskyi District Council in Kyiv City No. 669 dated 19.05.2005 cannot be considered as concluding agreements, as the mentioned letters indicate that the said authorities do not object to the land plot allotment instead of indicating that they agree to the land plots allotment.
The conclusion of Kyiv City Main Administration of Land Resources No. 09-02-4/1807 dated 04.07.2005, is also not a valid and permissible agreement in the sense of Clause 9 Article 118 of the Land Code of Ukraine, as there is no indication of approval.
– in violation of Part 1, Article 122, parts 1, 3, Article 123 of the Land Code of Ukraine, Kyiv City Council took decision to transfer the land plots to “Kontaktbudservice” LLC without a proper and admissible draft land allotment.
– in violation of Articles 116,118,123,124 of the Land Code of Ukraine, Article 19 of the Constitution of Ukraine, Kyiv City Council took decision to transfer land plots 2, 6 of “Osokorky-Tsentralni” microdistrict to “Kontaktbudservice” LLC without the withdrawal of the said land plots from the Joint-Stock Company “Holding “Kyivmiskbud Company”, which possessed said land plots under the leased right until 26.10.2007 (sheet 14 of the Project is evidence of this).
Additional Information:
“Kontaktbudservice” LLC is a company with authorized capital of 20 thousand hryvnias. Its owners at the time of land allotment are the People’s Deputies of Ukraine Oleksandr Vilenovych Chornovolenko and Viacheslav Stanislavovych Koval. “Kontaktbudservice”, LLC actually represents one of the building companies of the developer “Arkada” bank.
Liudmyla Oleksandrivna Zakrevska, the wife of Oleksandr Vilenovych Chornovolenko, at the time of land allotment, was the Deputy Chairman of the Standing Commission of Kyiv City Council on Urban Development, Architecture and Land Use at Kyiv City State Administration: https://far.chesno.org/case/243/.