How to Amend a Land Plot Urban Development Plan (GPZU) and Construction Permits in Russia?

October 15, 2022

BRACE Law Firm ©

The Land Plot Urban Development Plan (the "GPZU") is a critical document for obtaining a construction permit. The GPZU is required to prepare project documentation and obtain a construction permit. On one hand, the GPZU is a document necessary for obtaining a construction permit (or amending a construction permit), while on the other hand, it is not a title-establishing document. Complexities in using the GPZU also relate to establishing the GPZU's validity period and the repeated extensions of the GPZU's term.

This article examines the legal status of the GPZU and the procedure for its acquisition and amendment.

What is the Purpose and Content of a Land Plot Urban Development Plan?

The legal regulation for the issuance and amendment of a GPZU is governed by the Urban Development Code. A GPZU is issued to provide urban development entities with information necessary for architectural and construction design, construction, and the reconstruction of capital construction facilities within the boundaries of a land plot.

Under Part 1 of Article 57.3 of the Urban Development Code, a GPZU is issued for the following purposes:

• Providing urban development entities with information necessary for architectural and construction design;
• Construction;
• Reconstruction of capital construction facilities within the boundaries of a land plot.

Information sources for preparing a land plot urban development plan include territorial planning and urban zoning documents, urban development design standards, territory planning documentation, data contained in the EGRN, the Federal State Information System for Territorial Planning, Information Systems for Urban Development Support, and technical specifications for the connection (technological connection) of capital construction facilities to engineering and technical support networks.

Territorial planning documents are divided into: federal-level documents, planning documents for two or more constituent entities of the Russian Federation, documents of a constituent entity of the Russian Federation, and documents for municipal entities. Territorial planning documents are mandatory for state and local government authorities when an urban development decision must be made and implemented.

The preparation and issuance of a GPZU are carried out upon the application of the land plot rights holder and constitute a duty of the authorized body; however, by its legal nature, an urban development plan is not a title-establishing document and is purely informational for the purposes of determining the possibilities and requirements for the proposed development of a land plot, as it reproduces information approved by territorial planning documents and land use and development rules, including the characteristics of the land plot and the restrictions adopted in its regard.

In terms of its content, an urban development plan is not a title-establishing or title-confirming document, but rather a document containing information on already established permissions and restrictions within a land plot registered for cadastral purposes. Within the meaning of Article 44 of the Urban Development Code, a land plot urban development plan is an extract from the land use and development rules, the territory planning design, and the territory surveying design for a block (micro-district) as applied to a specific land plot, specifying information on the construction characteristics of the plot intended for development and the construction restrictions applicable to it. An urban development plan does not establish the relevant characteristics, but merely reproduces those defined in the urban development documentation for the territory where the plot is located.

The GPZU contains the following information:

• Details of the territory planning design and (или) territory surveying design (if approved designs exist);
• The boundaries of the land plot and the cadastral number of the land plot (if any);
• The boundaries of the planned placement zone for a capital construction facility in accordance with the approved territory planning design (if any);
• Minimum set-backs from the land plot boundaries within which the construction of capital construction facilities is permitted;
• Main, conditionally permitted, and auxiliary types of permitted use for the land plot established in accordance with this Code or other federal laws;
• Limit parameters for the permitted construction or reconstruction of a capital construction facility established by the urban development regulations for the territorial zone in which the land plot is located;
• Requirements for the purpose, parameters, and placement of a capital construction facility on the specified land plot;
• Limit parameters for the permitted construction or reconstruction of a capital construction facility established by the regulations on specially protected natural areas;
• Calculated indicators for the minimum permissible level of infrastructure provision (utility, transport, social) and the maximum permissible level of territorial accessibility of such facilities for the population;
• Restrictions on the use of the land plot;
• Boundaries of zones with special conditions for use of territories if the land plot is fully or partially located within such zones;
• Boundaries of public easements;
• The number and (или) name of the planning structure element within which the land plot is located;
• Capital construction facilities and engineering and technical support networks located within the land plot boundaries;
• The presence or absence of cultural heritage sites within the land plot boundaries and the boundaries of the territories of such sites;
• The feasibility of connecting (technological connection) capital construction facilities to engineering and technical support networks (excluding power grids), determined based on comprehensive development programs for the utility infrastructure systems of the settlement, municipal district, or urban district (if any);
• Details of regulatory acts of the constituent entity of the Russian Federation or municipal legal acts establishing requirements for site improvements;
• Red lines.

Thus, while a GPZU is not a title-establishing document, it effectively serves as an extract from the documents establishing the regulations for the use of a land plot.

Validity Period of a Land Plot Urban Development Plan

Previously, prior to January 1, 2017, the validity period of a GPZU was not established. Currently, to obtain a construction permit (the "Permit"), a developer must submit a GPZU issued no earlier than three years before the day the application for the Permit is submitted.

At the same time, Federal Law No. 373-FZ dated July 3, 2016, On Amending the Urban Development Code of the Russian Federation and Certain Legislative Acts of the Russian Federation regarding Improving the Regulation of the Preparation, Coordination, and Approval of Territory Planning Documentation and Ensuring the Comprehensive and Sustainable Development of Territories (the "Law No. 373-FZ"), amended Article 57.3 of the Urban Development Code, according to Clause 10 of which information specified in a GPZU may be used to prepare project documentation and obtain a construction permit within three years from the date of its issuance. Upon the expiration of this period, the use of information specified in the GPZU for such purposes is not permitted.

Concurrently, Part 1 of Article 9 of Law No. 373-FZ provided that information specified in a GPZU approved before the entry into force of the Law No. 373-FZ may be used within a period established by a regulatory act of the supreme executive body of state power of the constituent entity of the Russian Federation, which cannot be less than three years or more than eight years from the date of entry into force of this Federal Law, for the preparation of project documentation and the issuance of construction permits. Upon the expiration of the established period, the use of information specified in such a GPZU is not permitted. Thus, a systemic interpretation of the aforementioned norms of the Urban Development Code and Law No. 373-FZ suggests that the period for applying GPZUs issued before the entry into force of this law should be calculated from the date the named law took effect, which is January 1, 2017.

Thus, the validity period for GPZUs issued before January 1, 2017, is calculated from the specified date and ranges from three to eight years. The specific term is established by a regulatory act of the constituent entity. At the same time, the failure to establish such a term at the regional level does not mean that the GPZU's validity period expires on January 1, 2017.

Restricting the timeframes for using information specified in a GPZU issued before January 1, 2017, by citing the new statutory validity periods violates the rights of the entity as a participant in urban development activities. The absence of a relevant regulatory act regarding the use period for GPZUs issued before January 1, 2017, allows for the application of Part 1 of Article 9 of Law No. 373-FZ as a federal law containing transitional provisions with the periods specified in that article. This allows state authorities of the constituent entities of the Russian Federation to establish other periods (not less than three and not more than eight years), but their failure to adopt an act cannot prejudice the position of urban development participants or affect the principle of the temporal effect of legal norms. A refusal to issue a Permit due to the failure to establish validity periods for GPZUs issued before July 1, 2017, is unjustified.

Furthermore, in accordance with Resolution of the Government of the Russian Federation No. 575 dated April 2, 2022, the period for using GPZU information for the preparation of project documentation, the issuance of a construction permit, and making amendments thereto is extended by one year if it expires between April 13, 2022, and January 1, 2023. This Resolution also extends Permits that expired between April 13, 2022, and August 1, 2022, by one year.

Construction Permits and the Land Plot Urban Development Plan

Under Part 13 of Article 51 of the Urban Development Code, the body authorized to issue construction permits shall refuse to issue a construction permit if the documents provided for by Part 7 of Article 51 of the Urban Development Code are missing. Thus, the submission of a GPZU is mandatory for obtaining a construction permit.

The purpose of providing a GPZU when obtaining a Permit is to establish the compliance of project documentation with the requirements of the urban development regulations and standards established for the facility under construction. Under Clause 26 of Article 1 of the Urban Development Code, urban development design standards are a set of calculated indicators for the minimum permissible level of provision with facilities (as provided for by Parts 1, 3, and 4 of Article 29.2 of the Urban Development Code) and the maximum permissible level of territorial accessibility of such facilities for the population, established to ensure favorable living conditions.

Part 2 of Article 29.2 of the Urban Development Code stipulates that regional urban development design standards may establish limit values for calculated indicators for the minimum permissible level of provision with facilities of local significance. When amending a Permit, it should be noted that the procedure for amending a Permit is analogous to the procedure for obtaining a Permit. The grounds for refusing to amend a permit are also identical to the grounds for refusing to issue a construction permit (non-compliance of the project with the GPZU, the type of permitted use of the land plot, and other restrictions).

Thus, a developer has the right to adjust project documentation after receiving a Permit. A developer is not prohibited from submitting new project documentation along with an application to amend a construction permit; the law provides no relevant grounds for refusal in such cases.

The preparation of project documentation is carried out based on the developer’s instructions and is approved in its final form by the developer, after which it is used for construction. Thus, the Urban Development Code contains no prohibition against a developer correcting or changing project documentation according to their needs. However, a GPZU must also be submitted with the package of documents to amend a Permit. The GPZU must be valid at the time the relevant application to amend the Permit is filed. If the GPZU has expired, the developer must obtain a new GPZU.

Methods of Protecting Rights Regarding the Land Plot Urban Development Plan

The following methods of protecting rights are used when obtaining a land plot urban development plan:

1. Recognizing the information included in the GPZU as inaccurate and making relevant amendments. This claim is considered under the rules of Chapter 25 of the APC RF as a request to recognize the actions of the authorized body in entering the relevant information into the GPZU as unlawful. A land plot urban development plan is essentially an extract from the land use and development rules, territory planning design, and territory surveying design for a block (micro-district) as applied to a specific land plot, specifying information on construction characteristics and restrictions. If a court establishes that information in the GPZU does not match the information in the Land Use and Development Rules for the relevant territory, the claim will be granted. In considering a claim to remedy violations by amending the GPZU, the court will be guided by the current version of the PZZ (i.e., the version at the time the decision is rendered), rather than at the time the right was violated.

In a specific case involving the restoration of a petitioner's violated rights, the court stated that there were no grounds for ordering amendments to the land plot urban development plan because the authorized body had approved changes to the land use and development rules that restored the petitioner's claims. In this instance, the court deemed that the proper way to restore the violated rights was to require the authorized body to indicate information from the current version of the PZZ in Section 2 of the land plot urban development plan.

2. Challenging the validity of the land plot urban development plan. The law itself does not restrict the possibility of challenging a GPZU. However, given the legal status of the GPZU as an extract from regulations, challenging a GPZU should be preceded by challenging the relevant regulation.

This approach is established in judicial practice, which holds that challenging provisions of a land plot urban development plan that reproduce the content of certain regulatory acts without first verifying the regulatory acts themselves is premature. There are judicial precedents where courts cite the need to first challenge the established standard included in the GPZU.

Nevertheless, it appears that when challenging a GPZU in full or in part regarding information not based on a specific standard, such preliminary challenging is not required. For example, when challenging a GPZU regarding information that a land plot is located in a specific zone (e.g., a forest fund) when such information does not correspond to the facts, the GPZU will be declared invalid in that part. Another example of independently challenging a GPZU is contesting a discrepancy between the graphic and textual parts of the GPZU.

Possibility of Revoking a Construction Permit due to GPZU Non-compliance

If a Permit was issued based on an issued GPZU, can it be revoked if errors are discovered in the GPZU? The authorized body that issued the Permit does have such powers. The possibility of revoking a previously issued Permit stems from the authorized body's right to cancel its own non-normative acts. However, such cancellations must be motivated.

Under Article 48 of the Law on Local Self-Government, a local government body may not groundlessly or arbitrarily cancel previously adopted acts that affect the rights and legitimate interests of third parties. The procedures for canceling previously issued non-normative acts must be carried out in strict accordance with approved regulations. Otherwise, local government bodies could exercise such powers arbitrarily and at their discretion. The Constitutional Court of the Russian Federation explicitly stated that Article 48, Part 1 of the Law on Local Self-Government, which regulates the procedure for canceling municipal legal acts based on the need for compliance oversight, is aimed at regulating activities and implementing the guarantees of local government independence enshrined in Article 12 of the Constitution of the Russian Federation. The exercise of powers by local government bodies under Article 48 cannot depend solely on their discretion. The local government body must justify the need to cancel a previous decision in the act itself and, in the event of a court challenge, in court. The canceling act must comply with the law, not violate the interests of interested parties, and not arbitrarily restrict their subjective rights.

Thus, when exercising the right to cancel its own Permit, the authorized body must specify the grounds for such cancellation, and these grounds must be motivated.

At the same time, the Ministry of Construction and Housing and Utilities maintains the position that a Permit may only be terminated in cases specified by law. Under Clause 21 of Article 51 of the Urban Development Code, the effect of a construction permit is terminated by a decision of the local government body in the following cases:

• Compulsory termination of ownership and other rights to land plots, including the seizure of land plots for state or municipal needs;
• Receipt of an order from a federal executive body authorized by the Government of the Russian Federation to terminate a construction permit due to non-compliance with real estate use restrictions established for airfield territories. These bodies are:

(a) For experimental aviation airfields — the Ministry of Industry and Trade of the Russian Federation;

(b) For civil aviation airfields — the Federal Air Transport Agency;

(c) For state aviation airfields — the federal executive body in charge of the state aviation airfield.

• Renunciation of ownership and other rights to land plots;
• Termination of lease agreements and other agreements upon which the rights of individuals or legal entities to land plots were based;
• Termination of subsoil use rights if the construction permit was issued for the construction or reconstruction of a capital construction facility on a land plot provided to a subsoil user for subsoil use operations.

It should be noted that the above list of grounds is exhaustive.

Analyzing judicial practice, it must be noted that an authorized body's power to cancel its own non-normative acts with proper motivation extends beyond the grounds provided for by Article 51 of the Urban Development Code. In a specific case, it was established that since the GPZU and the Permit issued based on its data were initially issued in violation of urban development regulations, the lower court decisions in favor of the company (citing the lack of statutory grounds for revocation) were made without considering the relevant laws and the circumstances of the case.

Thus, given the nature of the violations related to the preparation of the GPZU — specifically, the failure to display information about a regional-level cultural heritage site, which should have been considered for the subsequent issuance of the Permit and approval of project documentation — the appellate court reasonably denied the company's application, taking into account the special land-use regime for historical and cultural monuments and protected zones. The court also noted that the company had not re-coordinated the project documentation or commenced construction.

Amendments to the Land Plot Urban Development Plan and Land Use and Development Rules

Part 8 of Article 36 of the Urban Development Code also establishes that land plots or capital construction facilities whose types of permitted use or limit parameters do not comply with the urban development regulations may be used without a timeframe for bringing them into compliance, except in cases where such use is dangerous to human life or health, the environment, or cultural heritage sites.

Consequently, Clause 4 of Article 85 of the Land Code of the Russian Federation and Part 8 of Article 36 of the Urban Development Code explicitly provide that capital construction facilities lawfully erected before the approval of urban development regulations in the PZZ, as well as the land plots on which they are located, may continue to be used according to their previous actual type of permitted use, unless such use is dangerous as defined above. This approach corresponds to the legal position established in judicial practice.

The failure of public authorities to comply with Articles 30 and 34 of the Urban Development Code when approving PZZ and defining territorial zone boundaries without considering existing layouts and land use cannot hinder the exercise of rights to use either an unfinished construction object or a leased land plot within the limits provided by land and urban development legislation.

If a disputed land plot was formed and leased to a company before the approval of the PZZ, no obstacles to its use for its intended purpose should arise in such a situation.

Land plots whose permitted uses do not comply with amended urban development regulations may be used without a set deadline for bringing them into compliance, provided such use is not dangerous. These provisions concern the use of already erected facilities when the PZZ is changed.

How are Relations Regulated if the PZZ Changed after Obtaining a Permit?

Refusal to issue a construction permit due to a discrepancy between a valid land plot urban development plan and a settlement’s land use and development rules is not provided for by the Urban Development Code.

Under Article 57.3 of the Urban Development Code, a land plot urban development plan is an informational document containing data necessary to determine the feasibility of designing and constructing capital construction facilities. If a GPZU was approved before changes to the Land Use and Development Rules were adopted, new data on limit parameters established by those changes could not have been included in it. Consequently, when the PZZ is changed, affecting territorial zoning and the content of urban development regulations, the owner is entitled to continue using the plot as permitted prior to the change without any restriction, including as to duration, provided such use is not dangerous as defined in Part 8 of Article 36 of the Urban Development Code. This rule applies when a developer applies for the issuance (or extension) of a Permit within the validity period of a previously issued GPZU.

In summary, the GPZU is of great importance when obtaining or amending a Permit. Since a GPZU is essentially an information certificate aggregating data from land-use regulations, it is advisable to verify that such information is correctly reflected in the GPZU by comparing it with the actual urban development regulations.

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References

1. Urban Development Code of the Russian Federation No. 190-FZ dated December 29, 2004.
2. Resolution of the Arbitration Court of the West Siberian District No. F04-2535/2022 dated June 23, 2022, in Case No. A45-12896/2021.
3. Resolution of the Arbitration Court of the Moscow District No. F05-10648/2016 dated August 1, 2016, in Case No. A40-179414/2015.
4. Resolution of the Arbitration Court of the Ural District No. F09-7691/17 dated December 14, 2017, in Case No. A76-32380/2016.
5. Ruling of the Supreme Court of the Russian Federation No. 302-ES20-16910 dated January 21, 2021.
6. Resolution of the Government of the Russian Federation No. 575 dated April 2, 2022, On the Peculiarities of Preparing, Coordinating, Approving, and Extending the Validity Periods of Territory Planning Documentation, Land Plot Urban Development Plans, Issuing Construction Permits for Capital Construction Facilities, and Issuing Occupancy Permits.
7. Resolution of the Supreme Arbitration Court No. 1633/13 dated July 2, 2013.
8. Resolution of the Arbitration Court of the Ural District No. F09-3253/21 dated June 11, 2021, in Case No. A60-11009/2020.
9. Ruling of the Supreme Court of the Russian Federation No. 309-KG15-17015 dated December 29, 2015.
10. Resolution of the Arbitration Court of the West Siberian District No. F04-1346/2018 dated May 21, 2018, in Case No. A45-2876/2017.
11. Resolution of the Arbitration Court of the Moscow District No. F05-33930/2021 dated February 3, 2022, in Case No. A41-2982/2021.
12. Cassation Ruling of the Judicial Chamber for Administrative Cases of the Supreme Court of the Russian Federation No. 18-KAD20-40-K4 dated February 10, 2021.
13. Federal Law No. 131-FZ dated October 6, 2003, On the General Principles of the Organization of Local Self-Government in the Russian Federation.
14. Ruling of the Constitutional Court of the Russian Federation No. 739-O-O dated May 26, 2011.
15. Resolution of the Government of the Russian Federation No. 1460 dated December 2, 2017, On Approval of the Regulations on Airfield Territory and the Rules for Resolving Disagreements...
16. Letter of the Ministry of Construction and Housing and Utilities of Russia No. 52346-DV/08 dated December 21, 2020.
17. Ruling of the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation No. 305-KG14-2820 dated February 10, 2015, in Case No. A40-167282/2013.
18. Clause 6 of the Review of Court Practice in Cases Related to Changing the Type of Permitted Use of a Land Plot (approved by the Presidium of the Supreme Court of the Russian Federation on November 14, 2018), and Rulings of the Supreme Court of the Russian Federation No. 308-KG15-7455 dated December 9, 2015, and No. 301-KG18-25680 dated June 3, 2019.
19. Resolution of the Arbitration Court of the Far Eastern District No. F03-5516/2020 dated January 25, 2021, in Case No. A73-14374/2019.
20. Clause 6 of the Review of Court Practice in Cases Related to Changing the Type of Permitted Use of a Land Plot (approved by the Presidium of the Supreme Court of the Russian Federation on November 14, 2018).
21. Resolution of the Eleventh Arbitration Appellate Court No. 11AP-12174/2018 dated September 21, 2018, in Case No. A65-7872/2018.