In March, information emerged that business inspections were prohibited during quarantine. But this is only partially true
During the quarantine, only scheduled inspections are prohibited, and only for companies that do not have a high degree of risk from conducting business activities.
That is, most inspections were not affected by the quarantine. Who “comes” to inspect developers and is it possible to do this during quarantine? What is usually inspected and what to do if the inspector finds a violation? We will not touch on the issue of tax inspections in this article.
Inspections by architectural and construction control bodies (DABI, DIM)
Can an inspection take place during quarantine?
Inspections of compliance with urban planning legislation are not yet being carried out, but not because of quarantine, but because of the liquidation of the State Urban Planning Inspectorate. On March 13, the government suspended the resolution approving the procedure for conducting such inspections. Inspections should resume with the start of the newly established State Urban Planning Inspectorate (SUI). It is not yet clear which will happen first — the end of quarantine or the start of the SUI.
If the SUI starts operating during quarantine, they will be able to come with scheduled inspections only to those companies that have a high degree of risk. The degree of risk is determined by the regulatory authorities separately for each of the areas of control according to specially developed criteria. The degree of risk depends not only on whether your company can be inspected during quarantine, but also on how often you will be inspected during normal times.
The SUI will be able to come with unscheduled inspections regardless of quarantine. The two most common grounds for conducting unscheduled inspections are a complaint from an individual and checking the implementation of previously issued regulations. The Ministry of Interior will have the right to verify the implementation of those regulations that were previously issued by the State Anti-Corruption Bureau.
What will the Home Office check?
The DIM will check, among other things, whether the developer has the right to perform preparatory and construction work, whether the requirements of the State Construction Code, urban planning conditions and restrictions are met, the compliance of the actually performed construction work with the design documentation, as well as the reliability of the data specified in the documents granting the right to perform construction work, the compliance of the design documentation with the requirements of the legislation, the presence of a license from the general contractor (contractor) with the appropriate list of works.
In other words, the DIM will be interested in both the documentary part (design documentation, the presence of the right to perform construction work, licenses), and the actual part – whether the construction meets the requirements of the legislation and design documentation.
State Emergency Service inspections
Can the State Emergency Service come for an inspection during quarantine?
Scheduled inspections by the State Emergency Service are subject to a moratorium during the quarantine. This is also confirmed by the Ministry of Economy. But the State Emergency Service has the right to conduct an unscheduled inspection and even a scheduled one if a high degree of risk from your company’s activities is determined. Most likely, the State Emergency Service will come to the construction site with an unscheduled inspection.
What will the State Emergency Service check?
The State Emergency Service checks whether fire safety rules are observed in construction, starting from whether building materials meet fire safety standards and ending, for example, with whether fire tanks are protected from freezing water. Practice shows that sometimes inspectors interpret these rules broadly – they apply previous, already invalid editions or even DBN, which are not mentioned in the rules and have no relation to the object of the inspection.
The consequences of a State Emergency Service inspection are especially painful, because in addition to a fine or a prescription, State Emergency Service officials have the right to go to court with a demand to stop construction.
State Geocadastre inspections
Can the State Geocadastre come for an inspection during quarantine?
Regarding unscheduled inspections, it is definitely yes. Practice shows that the basis for an inspector of the State Geocadastre to go for an unscheduled inspection can be almost anything, even a letter from a local council member. The question of whether the State Geocadastre can conduct scheduled inspections at construction sites during quarantine is quite controversial. We are inclined to believe that it cannot, but the final answer will be given by the Supreme Court. However, in most cases, the State Geocadastre comes to the construction site with an unscheduled inspection.
What will the State Geocadastre check during construction?
The State Geocadastre will check, firstly, the availability of rights to the land plot on which construction is underway, and secondly, whether this land plot is being used for its intended purpose.
It can be noted that recently the State Geocadastre inspectors do not distinguish between the concepts of “purpose of the land plot” and “functional purpose of the land plot”, although the latter is a category of urban planning, not land legislation. This leads to the inspectors stating that the land plot is not being used for its intended purpose because, in their opinion, the construction does not correspond to the functional purpose of the territory in accordance with the city’s general plan. In such a situation, the State Geocadastre issues a prescription, the essence of which is actually reduced to a requirement to stop construction.
Inspections by the Ministry of Culture or the Department of Cultural Heritage Protection
Can the Ministry of Culture or the Department of Cultural Heritage Protection come for an inspection during quarantine?
Given the current judicial practice, yes, it can. The Supreme Court believes that cultural heritage protection bodies do not conduct inspections, but protective measures by conducting a visual inspection and checking an electronic database, the subject of which is the preservation of the properties of a cultural heritage object. Therefore, the Law “On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity” does not apply to such inspections (“protective measures”), and, accordingly, the “moratorium” on inspections does not apply.
What does the Ministry of Culture or the Department of Cultural Heritage Protection check at construction sites?
A developer who wants to build a facility within the protection zones of cultural heritage monuments or the historical area of a settlement (a list of settlements with a historical area can be found here ) must obtain a permit or approval of the design documentation for construction from the cultural heritage protection authority. Depending on the protected object, such an authority is the Ministry of Culture or the local department of cultural heritage protection.
To check whether these requirements are met and whether the developer has obtained the necessary permits and approvals from the cultural heritage protection authorities, inspectors often visit the construction site and carry out “visual inspections”. After that, they often draw up orders requiring the construction to be stopped if it is being carried out without a permit or if, in the inspector’s opinion, the monument is being damaged.
The inspection took place, the inspector claims there were violations. What should I do?
If you were still inspected during the quarantine, it is likely that this is legal, since the moratorium on inspections turned out to be only certain restrictions on conducting scheduled inspections.
If violations are detected, the result of the inspection will be a resolution to hold the company manager administratively liable (the most common scenario) and the issuance of an order to eliminate the violation.
If the company does not agree with the detected violation, then these documents will need to be challenged in court – the resolution and the order. However, the terms and procedure for appealing them are different.
An order is a document by which the regulatory authority obliges to eliminate the violation. An order cannot be ignored: it must either be complied with or appealed.
There are such orders that are impossible to fulfill or extremely impractical from a business point of view, for example, to stop construction work. They should be appealed. The term for appealing an order to the court is six months. However, the term for fulfilling the order will most likely be set shorter, so it should be appealed as early as possible to reduce the risk of imposing a fine for failure to fulfill the order. A resolution on bringing to administrative responsibility can be appealed within 10 days from the date of its delivery.
However, thanks to special “quarantine” legislation, even those orders and resolutions, the term for appealing which should have expired in April-July, can still be appealed in court for a few more weeks.
The results of the inspection can be canceled by the court for various reasons, but they can be conditionally divided into two groups: the absence of a violation, which the inspecting body claims, and non-compliance with the inspection procedure.
So, the State Geocadastre and the Ministry of Culture can inspect construction during quarantine with virtually no restrictions, the State Emergency Service and the Ministry of Internal Affairs have restrictions only on scheduled inspections of companies with a low and medium risk. However, regardless of the body that conducted the inspection and the detected violation, the results of the inspection can be appealed in court, and the quarantine only “facilitated” developers in this due to the extension of procedural deadlines. Therefore, even if the order was issued in the fall of last year, it can still be appealed in court.
Oleksandra Bortman, attorney, associate at Vasil Kisil & Partners Law Firm
Bogdan Shabarovsky, attorney, associate at Vasil Kisil & Partners Law Firm
