Control over land use and protection of lands is legislatively defined as “ensuring that state authorities, local self-government authorities, enterprises, institutions and organizations and citizens comply with land legislation of Ukraine” (art. 187 LCU).
In land law doctrine state control over land use and protection of lands is defined as an activity of competent state authority governed by law and aimed at ensuring of complying all the participants of land relationships with the requirements of land law, preventing and detection of violations, influencing offenders and remedying violated rights of land owners and tenants1. In this chapter I will apply this approach as it in my opinion better fits the established meaning of this term used in law.
In its established meaning the term “control” is closely related to the term “monitoring”, but, as opposed to monitoring, it extends to the possibility to hold the offenders accountable.
Based on the subject the following types of control are defined: (1) state control, (2) self-government control and (3) public control.
(1) General rules on state control in this sphere are defined by arts. 187-190 LCU, LU On state control over land use and protection of lands, the Regulation of CoM On approval of criterions which are used to assess the risks from a business activity and to determine the periodicity of planned measures of state control over land use and protection of lands of 20.05.2009 №477, the Order of the State Committee for Land Resources On approval of the procedure for planning and conducting inspections related to the issues of state control over land use and protection of lands of 12.12.2003 №312. The foundations of administrative liability for violations of land legislation are set by the Code of Administrative Offences. The relationships of control are governed also by legislation defining the status of controlling authorities:
- State Agency for Land Resources of Ukraine – the Agency’s Charter (approved by the Presidential Decree of 08.04.2011 №445/2011) vests upon the Agency rather narrow scope of control functions – in fact, they are limited mostly to control within the Agency itself;
- State Environmental Inspection, which is acting on the basis of art. 7 LU On state control over land use and protection of lands and its Charter approved by the Presidential Decree of 13.04.2011 №454/2011);
- the Ministry of Agricultural Policy and Food of Ukraine, which should have (art. 9 LU On state control over land use and protection of land) a special unit – State Soil Protection Service. This body is not yet created, instead, the state institution State Technological Center for Soil Fertility Protection exists (the Center’s Charter is approved by the Order of the Ministry of Agricultural Policy and Food of 01.09.2000 №167). However, according to CoU a law can not create the rules on how the system of executive authorities should look like, as this is an exclusive power of the President (subpara. 15 § 1 art. 106);
- the State Agricultural Inspection of Ukraine, which is responsible for “state supervision (control) … in relation to compliance with land legislation, land use and protecting land of all categories and of all types of ownership” (subpara. 1 § 4 of the Inspection’s Charter, approved by the Presidential Decree of 13.04.2011 №459/2011; see also art. 6 LU On state control over land use and protection of land, the Order of the Ministry of Agricultural Policy and Food of Ukraine of 12.07.2012 №424 On approval of the list of issues for inspection and of the standard form of inspection protocol to be used in planned inspections as a part of state supervision (control) over compliance of business entities with land legislation requirements);
- the State Sanitary Inspection of Ukraine – see LU On ensuring sanitary and epidemiological well-being of the population, the Presidential Decree On the Charter of the State Sanitary Inspection of Ukraine of 06.04.2011 №400/2011;
- the State Inspection for Building and Architecture of Ukraine – see art. 41 LU On settlements development regulation, the Presidential Decree On the Charter of the State Inspection for Building and Architecture of Ukraine of 08.04.2011 №439/2011, the Regulation of CoM On approval of the Procedure for performing state control in architecture and building of 23.05.2011 №553;
- local state administrations – art. 16 LU On local state administrations, art. 17 LCU.
(2) Self-government control in the sphere of land relations is governed by art. 189 LCU, subpara. «ї» art. 15 LU On environmental protection. The procedure according to which control functions are performed by local self-government authorities is established primarily by LU On local self-government in Ukraine. In particular, subpara. «б» § 1 art. 33 vests executive authorities of local councils with competence to perform over compliance with land and environmental legislation, land use and protection of lands, over implementation of land survey documentation; art. 48 envisages the legal foundations for temporary council’s commissions for control. As laws define only the general rules on control functions of local self-government, there is a practice of adopting local rules on the control in land relationships sphere: see, for instance, the decision of the Kyiv city council №16/890 of 25.09.2003 On the procedure to perform local self-government control over land use and protection of lands in the city of Kyiv.
(3) An attempt to establish the rules on public control over land use and protection of lands is made in art. 190 LCU, according to which this type of control is performed by the public inspectors appointed by the relevant local self-government and executive bodies and acting on the basis of the “rules, approved by the central executive authorities which ensure implementation of state policy in the spheres of supervision (control) in agriculture, environmental protection.” As of now these rules are not adopted.
Public control over land use and land protection can now be performed as a part of the public control in the sphere of environment protection. The legal basis for such type of control are art. 36 LU On environment protection and the Order of the Ministry for Environment and Natural Resources of Ukraine №88 of 27.02.2002 On approval of the Rules on public environmental inspectors.
Performing public control is also collaterally governed by LU On the citizen’s participation in public order and state border protection.
Public control over land use and protection of lands can be performed also as an element of public control in the sphere of “landscaping settlements” (“благоустрій населених пунктів”) (subpara. 3 § 1 art. 11, art. 41 LU On landscaping settlements, the Order of the Ministry for Building, Architecture, Utilities and Municipal Services of Ukraine of 16.012007 №7 On approval of the Rules on public control in the sphere of landscaping settlements).
1 Земельне право: Підручник для студентів юридичних спеціальностей вищий навчальних закладів / За ред. В.І. Семчика і П.Ф. Кулинича. – К.: «Ін Юре», 2001. – С.230.