Approx. Ed: This is a very detailed interview, replete with legal formulations, but also interesting with some general considerations: for example, about the nature of modern Russian urban planning, about the city code of 2004, about the possibility of adopting foreign experience. It also cites not all known facts - in particular, that the previous general plan of Perm, developed by St. Petersburg specialists, was canceled in the mid-2000s by a court decision. Or that recently Dutch urbanists, colleagues of KCAP, were unexpectedly banned from entering Russia, deploying them, already upon arrival, right at Sheremetyevo.
Since the text is very rich and long, we divided it into two parts: first, we are talking directly about the expertise in the case of Andrei Golovin, then - about more general problems of modern Russian urban planning. So,
On the expertise in the case of Andrei Golovin
Nadezhda Nilina:
The reason for our conversation with Nikolai Kichigin was the Strategic Master Plan of the city of Perm, developed by the Dutch bureau KCAP Architects & planners together with a group of European developers commissioned by UIA “Bureau of Urban Projects”. Along with awards and international recognition, the Perm master plan has been criticized in Perm itself. As a longtime practicing planner, I believe that a little criticism is perfectly normal, that it is a healthy expression of interest in big, serious work, which has been worked on by a huge team and which took several years. The criticism of the Perm master plan was understandable. The document was new, appealed to world practice, insisted on compactness, which is not very characteristic of Russian urban planning.
In addition, the Perm master plan somehow immediately became famous, won a prize at the 2010 Moscow Architecture Biennale and became the hero of a whole issue of Project Russia magazine, a serious architectural publication that can be found in any bookstore in the world connected with our profession. I know that the students of the Moscow Architectural Institute use the Perm master plan as a textbook - for example, I saw how they apply one of its sections, the rules for building blocks, in their work. I also know that the head of the Research and Development Institute of the General Plan of Moscow, which oversees the development of the capital's master plan, keeps the master plan of Perm on his desk for using Perm developments, which simply have no analogues in our country.
Two years ago, on the initiative of the investigating authorities, an expert from St. Petersburg S. D. Mityagin carried out a forensic examination of the materials of the Strategic Master Plan of Perm and documentation for its development. Later, the Institute of Legislation and Comparative Law under the Government of the Russian Federation prepared an opinion on the legal context of the expert's opinion S. D. Mityagin.
I had a desire to better understand the confusing and contradictory situation around the Strategic Master Plan of Perm, which led me to the lawyer Nikolai Kichigin, leading researcher at the Institute of Legislation and Comparative Law, Associate Professor at the Graduate School of Urban Studies, author of many scientific publications on environmental issues. land and town planning legislation. Nikolay Kichigin is one of the authors of the legal opinion developed by the Institute regarding the expertise of S. D. Mityagin.
Nikolay Kichigin:
- Strategic Master Plan - a document that is not provided for by the current legislation: neither the Urban Planning Code of the Russian Federation, nor the Federal Law "On General Principles of Organization of Local Self-Government in the Russian Federation." The development of a master plan is not formally a local issue for which the municipality should seek funding. In other words, the development of a master plan is not an obligation, but a right, one might say - the good will of the municipality. If there is a financial opportunity, the municipality can develop it. If this is not possible, no one will force.
But the development of the Strategic Master Plan does not contradict the current legislation, this work cannot be considered as inappropriate spending of budgetary funds. On the contrary, the Law on Local Self-Government provides that if a municipality has the financial ability, then it has the right to implement other functions, unless other levels of public authority are endowed with the corresponding competence. In this case, this was the case.
Nadezhda Nilina:
- Nikolay, please tell us about the expertise carried out by the Institute of Legislation and Comparative Law on the conclusion of the forensic examination prepared by the expert S. D. Mityagin.
N. K.: The Institute of Legislation and Comparative Law under the Government of the Russian Federation began to consider the situation with the Strategic Master Plan of Perm, when the opinion of the expert S. D. Mityagin. Expert Mityagin came to the conclusion that the master plan does not comply with the requirements of the current legislation, cannot be implemented in the Master Plan of the city of Perm, is not a research work, that is, the expert's opinion on the master plan was generally negative, although the expert noted and a number of positive aspects of this work.
The Institute of Legislation and Comparative Law under the Government of the Russian Federation performed a legal examination of the expert's opinion S. D. Mityagin. We studied a large amount of documentation, including additional documents that were not provided by the investigation to expert Mityagin, which he simply did not see and did not consider. And they came to a number of legal conclusions, while not intruding on the competence of Mityagin as a city planner, architect, since this would lead to the groundlessness and disputability of our conclusions. As an architect and urban planner, he made a number of conclusions that we could not argue with as lawyers, although we also noted that there are other substantiated expert assessments that do not coincide with the point of view of the expert Mityagin.
However, Mityagin's expert opinion also contains judgments and conclusions regarding the legal regulation of urban planning activities, as well as economic issues that, in our opinion, were not in his competence as an urban planner.
NN: What conclusions have you and your colleagues come to?
N. K.: First of all, in accordance with the legislation, forensic examination involves not only an expert assessment. A sample or standard is also required, for compliance with which the object of examination is checked. Or, if they are absent, a technique that allows you to get a clear, well-founded result that can be independently verified.
In the situation with the examination carried out by Mityagin, there was an object of examination in the form of materials for the preparation of a master plan for the city of Perm, but there was no sample or norm for compliance with which these materials could be checked. Expert Mityagin tried to use the Urban Planning Code of the Russian Federation as a model and substantiate that the master plan of Perm does not meet the requirements established in the Urban Planning Code of the Russian Federation for the substantiating documentation of the master plan.
We believe that this was his key methodological mistake, which in this case is fundamentally important. Due to the fact that the expert Mityagin mistakenly regarded the Perm master plan solely as the substantiating documentation for the Master plan, the entire methodology of his research was questioned. He began to compare the provisions of the master plan with the norms of the Urban Planning Code of the Russian Federation, which could not be done, since the master plan is an independent document not provided for by the Urban Code; this is a document that, among other things, contains proposals for the General Plan of the city, but not only. The City Code cannot establish any mandatory requirements for it.
Because of this fundamental, fundamental methodological error, we cannot consider Mityagin's conclusion fully justified. The results of his forensic examination, including many of its conclusions, are, in our opinion, controversial and non-obvious.
Reflecting on this, I come to the conclusion that Mityagin could have made his expert opinion more grounded and undeniable if he had compared three documents: the Strategic Master Plan of Perm, the concept of the master plan and the Master Plan of the city of Perm itself. This was quite possible, because at the time when he was finishing working on the expert opinion, the draft general plan of Perm had already been submitted to public hearings. Mityagin could theoretically ask the investigation to extend the examination period, ask them to provide him with the draft general plan, the concept of the master plan, and compare them with the master plan of Perm. Such a methodology would allow him to answer the question of whether the master plan of the city was used in the preparation of the general plan of Perm or not. Since the expert Mityagin did not do this, his assessments, which may be justified and correct from the point of view of an architect and urban planner, in my opinion, cannot claim the status of an expert opinion, especially a forensic examination.
It is fundamentally important to understand that the master plan of Perm was intended not only exclusively for the subsequent development of the general plan of the city, the scope of its application is much wider. This is reflected in those documents that the expert Mityagin did not receive for research, for example, in the municipal assignments for the development of a master plan for Perm, issued by the Bureau of Urban Projects by the administration of the city of Perm.
Expert Mityagin analyzed only the documentation concerning the relationship between the Bureau of Urban Projects and the companies involved in the development of the Perm master plan, but did not consider the documentation regarding the relationship between the city administration and the Bureau of Urban Projects, the materials of the Commission for the preparation of the Perm Master Plan. This did not allow him to properly identify and analyze the entire chain of documentation associated with the preparation of the master plan for Perm and the master plan for Perm. Which again testifies to the insufficient substantiation of the expert assessments of S. D. Mityagin.
The materials provided to us contain expert assessments of a number of specialists in the field of urban planning, including the developer of the Perm master plan - the Institute of Urban Economics, in which experts come to the conclusion that the Strategic Master Plan of Perm was in fact used in the development of the Master Plan of Perm …
In particular, in the municipal assignment No. 3 to carry out work on the development of a strategic master plan, it was envisaged to conduct research work carried out in order to create proposals for the master plan, as well as to prepare materials for strategic territorial planning in order to set tasks in the development of urban planning for period from 2020–2050. That is, when developing the master plan for Perm, it was a question of long-term strategic planning of the city's development.
NN: Is this the task that the Bureau of Urban Projects received from the Perm municipality?
N. K.: Yes exactly. In the municipal assignment number 3, it was determined that the master plan of Perm is intended not only for the preparation, but also for the subsequent implementation of the provisions of the general plan: including in the rules of land use and development, planning projects of the territory.
Therefore, it is obvious that the master plan of Perm could not contain only proposals for the general plan of the city. Expert Mityagin also points out this fact and admits that the master plan also contains proposals for the standards for urban planning of the city, for the PZZ, for planning projects, contains a vision of the development of specific territories, including the embankment of the Kama River from the point of view of European designers, proposals for the development of the bicycle road network.
S. D. Mityagin regards this as a flaw in the master plan and an example of its inconsistency with the city code. But how can you talk about inconsistency if the work was done in accordance with the municipal assignment, which was not limited to the preparation of proposals for the general plan, but also provided for the preparation of proposals for its implementation, which was done.
Nobody set the task for the authors of the Perm master plan to develop this document in accordance with Russian GOSTs and SNIPs. They offered their international vision of urban development, which could already be adapted in a certain way, taking into account our conditions. If they were given the task of working according to our GOSTs, it would have been impossible in advance, as it seems to me.
Although I do not see any impracticable task in adapting the Perm master plan to Russian conditions. The materials studied by us contain the conclusions of several authoritative organizations, including the Institute of Urban Economics, whose specialists were the developers of the current general plan of Perm, where it is clearly shown in a tabular form point by point how and where the master plan of Perm was applied both in the concept and in general plan of Perm. This approach, I consider methodologically the only correct and evidence-based. As you understand, in the conclusion of S. D. Mityagin, there are no such materials.
There is also a review of the project of the general plan of the city of Perm, signed by the director of NIITIAG, doctor of architecture I. A. Bondarenko and the head of the Center for Sustainable Development of Historical Settlements of this institute E. L. Shevchenko. Where the draft general plan of Perm is analyzed "for identifying the presence / absence of connection" with the Strategic Master Plan of this city, and where experts draw conclusions that the specified connection exists and is expressed in an obvious way, namely:
- ensuring the relationship of the two documents is planned and traced at the intermediate and resulting stages of preparation of the draft master plan of the city of Perm;
- there is a meaningful connection between the NSR and the Concept of the master plan of the city of Perm, approved as a result of discussion at the Commission for the preparation of the draft master plan (Minutes No. 5 of 24.09.2009);
- there is a meaningful connection between the NSR and the general plan of the city of Perm, approved by the decision of the Perm City Duma No. 205 of December 17, 2010;
- there is a meaningful connection between the NSR and materials on the substantiation of the draft master plan of the city of Perm.
On the specifics of the question posed by the investigation to the expert
It is also necessary to dwell separately on the very formulation of the question posed by the investigation to the expert Mityagin. This remained outside the scope of our conclusion, since such a question was not raised before us, and it is not our task to indicate to the investigation how it is necessary to pose questions to the expert. But within the framework of the interview, I can express my personal opinion.
NN: Could you please repeat this question again?
N. K.: The following question was posed to expert Mityagin:
“Do the results of work submitted for examination under the agreements specified in the descriptive part of the Decree on the appointment of a forensic examination of research works carried out within the framework of the development of the General Plan of Perm, due degree of validity, argumentation and elaboration for the possibility and admissibility of their practical application in the development of the General Plan of Perm?"
The very wording of the question, in my opinion, from the very beginning questioned the results of the entire examination. Why? Because a number of questions immediately arise: what is the proper degree of argumentation, validity and elaboration, by whom is it determined? Are there any formal or substantive requirements established by law for such a document as a master plan? In principle, they do not exist. Who established the indicated "degrees"? The problem lies in the fact that the requirements for validity, argumentation, and elaboration of the master plan are nowhere and by no one established.
I am sure that this is not the fault of the expert Mityagin. Before him, as an expert, was initially asked an unsuccessful question, allowing a multiplicity, uncertainty of answers, since there are no clear criteria for assessing the quality of master plans. The raising of the forensic examination question jeopardized everything that was written by expert Mityagin, although in his professional part, I am sure, he honestly presented his point of view based on professional experience and knowledge. But the ambiguous formulation of the question already implies that this is no longer an examination, but an expert assessment of a specific specialist in this area, nothing more. If you want, his personal point of view, which should not be called the conclusion of a forensic examination.
NN: Subjective opinion?
N. K.: Yes, you could say that. As a result of raising such a controversial issue, expert Mityagin presented his, albeit qualified, but still subjective opinion that he did not believe that the Perm master plan was reasoned enough. Although he admits that this document is new and valuable. Indicates that the master plan of Perm is an interesting document, that it gives its own vision, that there are good provisions there. Mityagin's examination repeatedly refers to this. I would like to emphasize that in the conclusion of S. D. Mityagin, there are no exclusively negative assessments of the Perm master plan.
As I understand it, the main remarks of the expert Mityagin are that the terms of reference for the development of the Perm Master Plan were not entirely correct, from his point of view, they were drawn up, or rather were not clearly formulated, that the elaboration of some issues in the master plan did not correspond to Russian requirements.
NN: Can one expert with a qualification in the field of urban planning properly conduct a comprehensive examination of the master plan, taking into account the fact that 85 people, 5 foreign companies worked on the draft master plan for Perm?
I am a UNESCO expert and have evaluated several master plans for the conservation and restoration of historic cities. But I have never done this alone. Those. there is an expert who, making an individual assessment for UNESCO, applies precise criteria, on the basis of which a general assessment matrix is developed. In my experience of participating in such examinations, they are always carried out by 6-10 specialists who work together on one project. Then a public forum is organized, all this is discussed, there is a defense of one's opinion.
N. K.: Formally, there were violations in the fact that the examination was carried out alone by S. D. Mityagin - no. A forensic examination can also be carried out by one expert, if he has sufficient competence, this does not contradict Russian legislation. Expert Mityagin has high qualifications - he has been working in this field for 40 years, he is an expert of non-state expertise. He is a doctor of architecture, an honorary architect of Russia, a professor, an adviser to the RAASN, who has a higher architectural education (we do not have "clean" city planners at all, unfortunately, since all city planners here, as I understand it, have an architectural education). Consequently, he possessed the special knowledge necessary to carry out an examination of the urban planning context of the Perm master plan. We have not in any way subjected and do not question his qualifications.
However, an expert should carry out an examination only in part of his competence, in the case of the Strategic Master Plan of Perm - as an expert-urban planner. S. D. Mityagin, on the other hand, carefully studied the contracts between the Bureau of Urban Projects and the developers of the Perm master plan, including analyzing the deadlines for the execution of work, the procedure for accepting the results of work, and reviewed the master plan of Perm for compliance with the Urban Planning Code of the Russian Federation. Was this his task, his competence as a city planner, architect?
Of course, in my opinion, for objectivity and greater validity, such an examination should be carried out by a commission, that is, not by one person, but by a group of experts. It would be necessary to conduct a commission examination, in which, in addition to architects, lawyers, economists, designers with experience in developing master plans would also participate.
In addition, Russian experts have no practical experience in the development or examination of master plans. Has expert Mityagin previously participated in the development or examination of the master plans? In his conclusion, nothing is said about this. But, as I understand it, the overwhelming majority of Russian urban planners do not participate in the development or examination of master plans. At the same time, such a question may arise in court if the criminal case comes to him.
On the status of the master plan as a scientific work
NN: In your legal opinion, you disagree with expert Mityagin regarding the fact that the Perm Strategic Master Plan is not a research work. Could you comment on this moment?
N. K.: Yes, this point is reflected in our legal opinion. On the one hand, expert Mityagin concludes that the Strategic Master Plan is an unscientific work, on the other hand, throughout the research part of his conclusion, he discusses the provisions of the Perm Master Plan precisely from the position of a scientist-urban planner.
This discrepancy between the preliminary analysis and the final conclusion is somewhat surprising. At first, the expert argues with the provisions of the Perm master plan from the perspective of a professional: that, for example, the mission of the city was not defined, and then he concludes that this is not a scientific research, but some kind of practical work.
In the Russian Federation, the Federal Law "On Science and State Scientific and Technical Policy" is in force, in which scientific research is subdivided into two categories: fundamental scientific research and applied scientific research. Applied scientific research is research aimed primarily at applying new knowledge to achieve practical goals and solve specific problems.
In our opinion, the master plan of Perm is applied scientific research. This work, both formally (there is a structure of the work, bibliography, glossary, appendices), and meaningfully meets the requirements for scientific work. Its developers studied foreign experience, analyzed the urban planning situation in Perm, formulated proposals on how to improve the urban planning situation in the city, how to develop the city. Naturally, one can argue with these proposals, which the expert Mityagin does in his conclusion, substantiates his point of view as an expert with a doctorate in architecture. How can one then conclude that the master plan of Perm is not a research work, I am not very clear.
The Institute for Legislation and Comparative Law is a research institution and research is a significant part of our daily work. We conduct our own scientific research, study the scientific work of other institutions and individual scientists, participate in scientific events, prepare graduate students and applicants who defend their dissertations in our scientific councils. Therefore, we can judge what constitutes scientific research, even not by legal specialty. In our opinion, the Perm master plan is a shining example of applied scientific research. A certain methodology was laid in it, advanced foreign practices were applied, and again with the use of scientific approaches, scientifically grounded conclusions and proposals were made.
If the expert Mityagin believes that the Master Plan of Perm is not a research work, then the question arises: what kind of work is it then? Is this a project? No, the master plan is not a draft master plan, not a draft land use and development rules, not a planning draft. In our opinion, the Perm master plan is a scientifically grounded strategic vision of the development of the city of Perm, made on the basis of studying the urban planning situation in the city and applying the knowledge and experience of foreign experts in the field of urban development.
About re-examination
NN: Taking into account the results of the legal examination carried out by the Institute of Legislation, your assessments of the expert's opinion S. D. Mityagin, what can be done to obtain substantiated and undeniable expert assessments?
The situation is really difficult. I am not familiar with the materials of the criminal case, but if the investigation or the court want to get really objective and substantiated results, then in this case it would be possible to conduct a new, repeated forensic examination.
It seems to me that the new examination should be comprehensive and be carried out by a commission of experts (and not by one, albeit a well-deserved and qualified expert), taking into account the fact that urban planning, financial, legal and other issues can be investigated within its framework. It is difficult to disagree with the fact that one expert cannot physically master such a volume of work. We will have to preliminarily develop and substantiate a certain research methodology. Such work may take several months even for a group of experts, but the result will be different.
I think that the question should be posed to the experts in a broader way than it was posed to S. D. Mityagin. To establish the truth, it is important to determine to what extent all the work on the preparation of the General Plan of Perm meets the requirements of the legislation. In this case, the master plan of Perm will be one of the documents under study, along with the concept of the master plan and the master plan of Perm.
For such an examination, the maximum number of documents should be submitted that were prepared as part of the development of the master plan for Perm, the concept of the master plan and the master plan for Perm, including various correspondence, decisions of local authorities, minutes of meetings of the Commission for the preparation of the draft Master plan of Perm, municipal tasks, acts of acceptance. This will ensure the comprehensive nature of the study.
I am sure that the results of such a re-examination would have been different, methodologically and factually grounded, the investigation or the court would have received a truly scientifically grounded result. With the approach I proposed, the experts would come to quite definite conclusions, up to the percentage indicators, it would be possible to calculate the use of the Perm master plan in the preparation of the Master plan. But I want to emphasize that 100% coincidence between the master plan of Perm and the general plan of the city cannot and should not be. Let me remind you that the Master Plan is not a preliminary draft of the Master Plan, but an independent research work.
Comparison of the master plan with foreign samples
NN: The master plan of Perm was published in the "Project Russia", many times covered and discussed at public forums and conferences. There is an opinion of international experts that the master plan of Perm fits into the history of urban development as a completely worthy, valuable document, made competently, according to the world standard. If there was an expert who could say, here are several master plans in front of me: Brussels, London, New York, Perm and would compare them with each other, would this be an adequate method for assessing the quality of the Perm master plan?
N. K.: We need to understand what kind of result we want to get from this kind of expertise. In this case, the question posed to the experts could sound like this: “Does the Perm Master Plan correspond to the best practices, examples that exist in the world and are recognized as such, in terms of their parameters, content, structure, and their proposals, or does it not?"
This is the result we could get by asking this question. Yes, I agree with you, Nadezhda, this would be an objective indicator, a conclusion about the proper or inadequate quality of the Perm master plan. The quality of the Perm master plan could be assessed by comparison with documents - analogs, other master plans that have received professional recognition and approval. Such an examination would be a convincing evidence of the quality of the Perm master plan as an independent document, executed in accordance with the best world practices.
But this would not be proof that the Perm master plan was applied in the development of the Perm master plan. And, since there are simply no such documents in Russia, it would have to be compared with foreign counterparts, and accordingly, it would be necessary to invite again foreign experts, whom the law enforcement agencies do not trust anyway. It turns out a vicious circle, which, nevertheless, needs to be broken.
I would like to add that the Russian progressive expert community could act in the current difficult situation in defense of strategic planning in general and the master plan of Perm in particular and demonstrate to the investigation and the court, if it does take place, that the professional community supports the development of such strategic documents and believes that the work on the master plan for Perm was not a violation, corruption, profanation or anything else illegal. That it was very difficult, maybe somewhat controversial work, but it was the first and has already given its useful result. It seems to me that this is important.
On the specifics of Russian urban planning education
NN: Nikolay, in addition to working at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, you are currently teaching, you are an associate professor at the Higher School of Urban Studies in Moscow. This is a fairly new, but already widely recognized research and educational institution in the field of urban planning.
Tell us a little about the Graduate School of Urbanism: what caused its appearance, what areas of urban planning activities are included in its research and educational work?
N. K.: As a lawyer, it is probably not very convenient for me to talk about the prospects for the state of such a profession as urban planning, but when communicating with such professional urban planners as A. A. Vysokovsky, E. K. Trutnev, I come to the conclusion that there are objectively not enough professionals in this field. First of all, not even those who can competently develop urban planning documentation, although they, as I understand it, too, but first of all those who can tell how to do this, give informed recommendations, develop new approaches based on the best practices and experience, including foreign. There are only a few such people, I think, and they can be counted on one hand.
What is the problem here is not for me to judge, but I suspect that this is happening because we simply do not train professional urban planners. As far as I know, only architects, designers, builders are trained in Russia, and city planners are practically not trained. As far as I know, there are almost no such programs in universities, and the fact that a new faculty has been formed at the Higher School of Economics: the Higher School of Urban Studies is, of course, a wonderful example for other universities. I would like to wish success and further development to this important and necessary undertaking.
About the city code of 2004 /|\
NN: That is, in your opinion, there is a certain professional vacuum in the field of urban planning?
N. K.: Yes, there is definitely such a vacuum. This was noticeable even to me, a lawyer, when in 2003-2004 the new Urban Planning Code of the Russian Federation was developed and adopted, and many representatives of the professional community did not perceive the bill, opposed its adoption - and still believe that the code does not work, that it not quite correctly and even not at all correctly prepared. The bill was criticized in almost all public discussions. I didn’t even expect that the professional community would speak out so sharply against the novels contained in the draft code.
NN: What, there were proposals not to accept it?
N. K.: Yes, this point of view has been expressed in many discussions that I have attended. It was stated that the entire system of urban planning was breaking down. Especially the Moscow authorities protested for certain reasons, even appealed to the Constitutional Court of the Russian Federation.
NN: And for what reasons?
N. K.: The Moscow authorities actively opposed the bill because the 2004 Urban Planning Code of the Russian Federation dramatically changed the approaches to the regulation of urban planning relations. He established that the priority in their regulation should remain with the federal center, built, so to speak, a "town-planning vertical".
The City Code of 2004 contained an order of magnitude more norms of direct action than the code of 1998, and also introduced new institutions into law enforcement practice, for example, the urban planning plan of a land plot (GPZU), an information system for urban planning activities.
Meanwhile, Moscow has created its own system of urban planning legislation. For example, a system of urban zoning was created, which was significantly different from the one that was laid down in the 2004 city code. There were many other discrepancies between the bill and Moscow legislation, which sooner or later Moscow would have to eliminate.
The Moscow authorities believed that urban planning activities are exclusively within the competence of a constituent entity of the Russian Federation, because the Constitution of the Russian Federation does not specify that it is federal or joint competence (Articles 71, 72 of the Constitution of the Russian Federation). Therefore, Moscow took the position: since it is not federal or joint competence, it means exclusively the competence of a constituent entity of the Russian Federation, including the federal city of Moscow. Therefore, when Moscow studied the adopted Urban Planning Code of the Russian Federation and realized that they would have to seriously change Moscow legislation, the Moscow City Duma appealed to the Constitutional Court of the Russian Federation with a demand to declare it unconstitutional, since it contradicts the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation ruled that urban planning activities are in the joint competence of the Russian Federation and the constituent entities of the Russian Federation, which means that the urban planning legislation of Moscow and other constituent entities of the Russian Federation must comply with federal legislation, including the Urban Planning Code of the Russian Federation.
More than 8 years have passed since 2004, but nevertheless, many representatives of the professional community still criticize the Urban Planning Code of the Russian Federation and consider its provisions inoperative, inapplicable in full. Of course, this Law is not perfect. Over the past time, many changes and clarifications have been made to it. But the sphere, the subject of regulation of the code is extremely complex. The subject of regulation is at the junction of urban planning, civil, environmental, and many other legal relations. Urban planning legislation is at the stage of active formation; not all legal institutions have been properly regulated yet. Unfortunately, I will note that, as a rule, critics of the code do not offer any alternative proposals in exchange. Such criticism is counterproductive, in my opinion.
NN: Until now … Since 2004, it turns out, almost ten years have passed, during this time there have been specific attempts to abolish the city code?
N. K.: Fortunately, there were no such attempts, with the exception of the appeal of the Moscow City Duma to the Constitutional Court of the Russian Federation, but, as I said, changes are constantly being made to the code. Many changes were made, especially in 2011, for example, the amendments introduced by Federal Law No. 41-FZ in terms of territorial planning changed the approaches to territorial planning advocated by the developers of the code. E. K. Trutnev urged not to make these changes, wrote appeals, justifications, but, unfortunately, was not heard.
The process of coordinating territorial planning documents was simplified, plans for the implementation of master plans were canceled. True, now they seem to be going to be introduced again. The issue of the system and content of urban planning legislation has not yet settled down. For example, some experts oppose urban plans for land plots, and believe that this is a redundant document that should be canceled.
Critics of the code overlook the many positive effects of its adoption. It is important that a document of direct action was created that is applicable throughout the Russian Federation, but at the same time contains enough elements of flexibility to allow the development of regional urban planning legislation, as well as municipal rule-making in this area.
I will dwell on some of the positive aspects of the adoption of the city code, which also apply to the professional community of urban planners. First: since 2004, the state's attention to the issues of urban planning has increased significantly. For the first time since the collapse of the USSR, the state set the task of forming a system of urban planning documentation throughout the country for the first time since the collapse of the USSR, when the state was not up to questions about which general plans, where, how and by whom are being developed. Now the state, no doubt, is interested in these issues: where and what urban planning documentation is being developed, what quality it is. It is obvious that the state wants to streamline the development of urban planning documentation.
The second positive point is that the professional community of urban planners itself, despite the fact that many of its representatives still stubbornly criticize the Urban Planning Code of the Russian Federation and believe that this document is not applicable in our conditions, nevertheless it is very actively involved in the development of urban planning documentation, while keeping silent about the fact that it was the 2004 Urban Planning Code of the Russian Federation that gave a powerful impetus to the development of various urban planning documents: territorial planning schemes, master plans, land use and development rules, planning projects and others.
I think this is very important, as it also directly contributes to an increase in demand for urban planners from the state, municipalities and business. Because when there is no demand for specialists, who should be taught and why? Today, every year, thousands of documents for urban planning documentation of various levels are developed, primarily at the municipal level, which means that specialists will be in demand at all levels of state and municipal administration. This will objectively increase the demand for the profession and professionals. Although many experts say that the urban planning documentation being developed now is weak and formal. It may well be. But this is only the first step, the experience of market town regulation. It seems to me that the quality of these documents will improve over time.
There is also a third positive aspect of the adoption of the Town Planning Code of the Russian Federation: the courts, which use town planning documentation in their decisions, began to play a very active role in the application of town planning legislation. Urban planning documentation is also considered in arbitration courts, courts of general jurisdiction, in the Constitutional Court of the Russian Federation, a solid judicial practice has been developed. The public is actively interested in urban planning documentation, which is fighting against infill developments, deforestation, and the construction of hazardous industries. This is a good sign, I think.
For example, we can take as an example the master plan of the city of Perm, which was completely canceled by the court.
Cancellation of the previous general plan of Perm /|\
NN: Could you tell us a little more about this?
N. K.: In the situation with the cancellation of the general plan of the city of Perm, I was not directly involved. I only know that in the second half of the 2000s, in 2006 or 2007, the General Plan of the city of Perm was adopted, developed by a St. Petersburg company specializing in the development of urban planning documentation. At the same time, part of the territory of the city of Perm, occupied by urban forests, was allocated in the general plan for low-rise buildings. The status of urban forests is still not clearly defined in the legislation; nevertheless, these forests are of great nature conservation value. Apparently, the developers of the General Plan of the city of Perm then considered that changes in the functional zoning in the general plan of the city would be enough to legalize the development of the territory occupied by urban forests. Perm land use and development rules have not yet been adopted. However, one very active citizen by the name of Ogloblina went to court with a demand to cancel the General Plan of the city of Perm, as contrary to the law. As a result, the court decided to invalidate the entire General Plan of Perm in full.
NN: And how was her claim formulated?
N. V.: I did not see the lawsuit, since I did not participate in the trial, but I saw the court's decision to invalidate the general plan of the city. In addition to the public, the prosecutor's office and environmental authorities took part in the case, which confirmed the fact that part of the territory of the city forests was assigned to construction in the General Plan of the city of Perm. As far as I know, this case has caused a significant public outcry. As a result, the General Plan of the city of Perm was canceled by the court in full, the subsequent courts left the original judgment unchanged. And the city of Perm was left without a valid Master Plan.
After the General Plan of the city of Perm was recognized as invalid, Ogloblina decided in court to invalidate the Rules of Land Use and Development of the City of Perm, adopted by that time. She considered that the Perm PZZ did not comply with the legislation in terms of the fact that the territory of urban forests in the Perm PZZ was declared a common area. She feared that the status of the common area could threaten urban forests with deforestation or other negative consequences.
In that case, I participated as an expert. The Institute of Legislation and Comparative Law under the Government of the Russian Federation prepared a legal opinion, in which it substantiated the position on the compliance of the Land Use and Development Rules with the current legislation. In our opinion, the status of the common area does not affect the possibility of cutting down urban forests. After all, public areas are, in particular, city parks and squares. However, the status of a common area does not mean that felling and building can be carried out on its territory. On the contrary, the privatization of land plots is prohibited within the boundaries of the common territory. Based on the results of the consideration of the lawsuit of the public figure, the court dismissed her claim to cancel the PZZ of Perm. Thus, the PZZ in the city of Perm was in effect, but there was no valid Master Plan. That is why the decision was made in 2008 to develop a new general plan for Perm.
As part of the development of the master plan, it was decided to preliminary develop the Strategic Master Plan for Perm. In the absence of a master plan and the presence of a perm zone, it was decided that a master plan is needed for the development of the city. I can assume that since the experience of developing master plans in the Russian Federation was basically absent, it was decided to involve competent foreign companies to develop a master plan using the best practices and international standards. As far as I know, Russian specialists are not yet engaged in the development of master plans for cities. This is a fairly new document for Russia. Therefore, attracting foreign companies with experience in this area, in my opinion, seems to be a logical step.
Why has the situation with the development of the Perm master plan become so aggravated in recent years? I believe, firstly, one of the reasons is that at that time in Russia there was practically no experience in developing master plans. It is still minimal today. I am almost sure that the Perm master plan has not yet been and does not exist in our country. And, unfortunately, it probably won't be in the near future.
Secondly, the reason lies in the amount of funding allocated for the development of the master plan for Perm; if the money was spent minimal, I think, then most likely there would be no problems with it. We have to admit that then, and even today, in Russia, almost none of the cities developed strategic master plans and did not spend so much money on the development of urban planning documentation.
NN: Do you mean the funds that were spent on the development of the master plan for Perm?
N. K.: Yes exactly. I think that the sums spent on the development of the Perm master plan really cause misunderstanding among people who were not immersed in the process, do not know the background, tasks and results, did not see the documents, do not have special knowledge. When significant funds are spent on a document incomprehensible to the general public, this objectively raises questions. In my opinion, this is the expected reaction. I mean just a lack of understanding, and not the initiation of a criminal case against Andrei Golovin.
At the same time, it is surprising that the reaction was also negative from the professional urban planning community of Perm, whose representatives believe that they were not heard, but attracted foreigners who do not understand the local specifics, requirements, etc. This is not entirely true. The draft master plan for Perm was publicly presented to the public and underwent a discussion procedure.
N. N. I am sad to hear that people are outraged about the cost of the master plan. Many times I made financial proposals and conducted contracts for similar projects, and I know for sure that the price of the project was absolutely adequate, corresponding to the volume of work. In addition, perhaps for Perm, such a price may be surprising, but for example, for architects from Moscow, it would be a very low price. The prices for the work of the best Moscow bureaus have long been equal to the European ones. I think this reaction arose simply from ignorance of the real situation and prices and, most importantly, the amount of work.
On the perception of foreign experience / | \
NN: Nikolay, I am interested in your attitude to the relationship between Russian and foreign experience. Do you consider this kind of cooperation possible and necessary, this kind of attempts to introduce new knowledge and technologies into the sphere of Russian urban planning? Does it make sense for us, as people involved in education, to refer to the experience of foreign colleagues, to try to move our sphere forward with the help of foreign experience and scientific developments? Is this the right path, or should we, on the contrary, isolate ourselves from the world around us and try to simply go forward in our own way?
N. K.: It seems to me that it should be obvious to every person that in the conditions of globalization of the economy, scientific and technological progress, it is in no way possible to fence off. Urban planning is a social science, and social sciences cannot develop indirectly and locally. If the exact sciences could still develop in isolation (which, incidentally, is also absolute nonsense today), then social science, in principle, cannot be closed, otherwise it will become obsolete.
Unfortunately, I see the problem of the closed nature of science not only in the sphere of urban planning on the example of the master plan of Perm, I often see it in our legal science. We often reinvent the wheel or use not the best foreign experience, or misinterpret it. Often foreign experts do not understand our experience and do not accept it.
But nevertheless, it is necessary to study and use foreign experience, otherwise we will not be able to develop in the trend of world development. That is why the master plan of Perm is a unique experience that, given the appropriate opportunities and the desire of municipalities, can be applied in other large cities of Russia.
Unfortunately, the situation that has now developed around the master plan and the "Bureau of Urban Projects" testifies to the opposite. Similar documents could be developed in St. Petersburg, Yekaterinburg, Kazan, Khabarovsk, Novosibirsk, Krasnodar, Nizhny Novgorod. The list goes on. But now they are observing the negative experience of Perm, where a criminal case has been initiated, the investigation of which has been dragging on for several years and cannot reach court in any way. A clear signal was given to the municipalities: why do they need to order a master plan, if they can then get such problems as in Perm. It is better, as before, to order the development of a draft master plan of the city to local designers without any preliminary master plans and concepts. Maybe we will attract an authoritative organization from Moscow or St. Petersburg. Let's just remember for a moment that the previous master plan of Perm, developed by a specialized design company from St. Petersburg, was canceled in full in court. Certain budgetary funds of the city were spent on that master plan.
The example of Perm is unique in that significant budget funds were allocated for the preparation of the master plan, the Concept of the master plan and the Master plan of Perm itself. I do not know of any other such examples. But it should be borne in mind that Perm is striving to become a developed European city in the future, to increase its scientific, educational, cultural potential, to become a city convenient for residents. Is this a bad or illegal endeavor? Having developed a master plan for the development of the city on the basis of advanced foreign experience, Perm, it seems to me, has already entered the history of Russian urban planning. Why do I think so? Because a few years after the creation of the Perm master plan, work began on the creation of a document similar in content in the largest metropolis of Russia - in Moscow. And this is no coincidence. Moreover, according to your information, the Perm master plan is actively used in the preparation of a similar document for Moscow.
Of course, Moscow has a completely different economic and image potential in comparison with Perm. Therefore, Western designers themselves are ready to participate in the competition for the development of a master plan for the development of Moscow, investing their own resources. But such a scheme is real, most likely, only in Moscow and St. Petersburg. In Perm, and in most other cities of Russia, it is problematic to submit to an international competition the preparation of a master plan for the development of the city, so that it would be interesting for foreign companies that specialize in this kind of work.
Nevertheless, the fact that Moscow, following Perm, decided to develop a master plan for its development, is evidence of a lot. First of all, that this is an advanced experience that needs to be developed and improved, to create its own methodology for developing master plans, to train specialists, to develop practices. I am sure that in order to develop a master plan not to be “ticked off”, it is necessary to develop a fundamental strategic vision, to present the city's development prospects.
I faced this even before this situation with Perm, when, under the leadership of A. A. Vysokovsky, who created and runs the Higher School of Urbanism, several years ago participated in the development of land use rules for buildings (PZZ) in some cities, for example, in the city of Nakhodka, Primorsky Krai. At that time, there was no active master plan in Nakhodka, and the administration wanted to first develop a PZZ, and then approve a new master plan, which does not contradict urban planning legislation. Alexander Arkadievich, in the process of preparing the PZZ, back in 2006, conducted a study on strategic planning for the development of the city of Nakhodka, the results of which were discussed with the interested public at the seminar for several days.
Based on this experience, I can say that a master plan or other document of a strategic level is objectively necessary for the development of large cities and agglomerations, for the development of master plans, land use and development rules, urban planning standards, planning projects for specific territories. Therefore, I do not see any legislative obstacles and prohibitions in the development of the master plan, I do not think that this is an unnecessary document and I do not agree with the expert Mityagin, who concludes that it was possible to do without the development of a master plan, that it is not applicable in practice document.
The Perm master plan really gives an understanding of where we want to move, what we want to achieve. It reflects, of course, the experience and developments of foreign experts, but these proposals were supported by the leadership of the city and the Perm Territory. The developers of the Perm Master Plan publicly stated that they used the proposals of the master plan in their work, and clearly showed how they used its provisions.
In my opinion, the master plan of Perm is an important and necessary document. Why, then, the Urban Planning Code of the Russian Federation did not provide for such a document as a master plan? There are several objective reasons for this. First, master plans, as formalized documents, began to be developed abroad, and have not yet received widespread distribution in Russia. Secondly, even the best law (and there are no ideal laws in principle, just as there are no ideal people) cannot foresee, regulate all the moments. This is a legal axiom, if you will. Thirdly, many municipalities simply do not have the money to even develop master plans and RPZs, let alone formally non-binding documents such as master plans.
But I will emphasize again that if the master plan is not specified in the Urban Planning Code of the Russian Federation, this does not mean that such a document cannot be developed, that it is some kind of profanity or a crime. This only means that the master plan can be developed at the initiative of the municipality, if it has the appropriate resources. I believe that the Master Plan of Perm, on which 20 teams of professionals worked under the leadership of the Bureau of Urban Projects, is one of the best master plans in Russia, which is based on a number of documents, including the master plan of Perm and the concept of the general plan. That is, it is a document that can be trusted, on the basis of which other documents of urban planning can be prepared.
NN: Which is absolutely applicable …
N. K.: Yes, and that is absolutely applicable. By the way, I would like to specially note that the investigation does not dispute the validity and applicability of the general plan of Perm itself. Therefore, if, as a result of a repeated examination, the connection between the master plan of Perm and the general plan of the city is proved, all questions and complaints about the master plan should be automatically removed.
This will prove that the proposals of the master plan can be realized through the master plan and applied in practice. Despite the fact that the master plan for Perm was prepared by foreign experts and, as the expert Mityagin points out, it does not fully correlate with Russian SNiPs and GOSTs.
This will mean that the Perm master plan set before the developers has been fulfilled. I repeat once again that the development of a master plan in Perm is a unique experience that has not yet been implemented practically anywhere in Russia, only in Perm. Naturally, with such work problems, difficulties arise, everything cannot be taken into account. Including because there were no samples, analogues, both in the result itself and in the process of work. But this is not a reason, in my opinion, to consider the development of a master plan for Perm a criminal offense based on the controversial conclusions of the examination.
I have not seen the materials of the criminal case, I am not a judge, but if the arguments of the investigation are based on the conclusion of expert Mityagin, then I have reasonable doubts about the prospects of this criminal case. The final point in this matter must, of course, be put by the court, but, as far as I know, the court cannot proceed to the consideration of the case, since the materials of the criminal case were repeatedly returned by the court for further investigation, i.e. the court finds it impossible to consider these materials as they are.
The result is a vicious circle: the court cannot consider the criminal case on its merits and understand the situation, and the investigation does not want to terminate the criminal case in the absence of a crime event. I am sure that in this case it is necessary to put an end to it, because there are simply no other options. As a result of the initiation of such criminal cases, we ourselves (I mean the country as a whole) put a reliable barrier on the path of attracting foreign experts, applying advanced experience and knowledge to the development of our cities. As a result, we will again become isolated, reinvent the wheel. Here are the consequences this can lead …
NN:… this is a big reputational risk.
N. K.: Yes, I agree with you. Will foreign companies, if they see that their colleagues have done the job, and they are considered almost scammers, will want to continue cooperation with Perm or with other Russian cities? Good question…
Of course, the topic of our interview cannot inspire optimism. And it's not just the fate of Andrei Golovin, the future of the Bureau of Urban Projects. I am concerned about this situation in a more global context: in terms of the development of urban planning science, education and legislation. We ourselves put a barrier on the attraction of foreigners, declaring that they are ordered low-quality and unnecessary work …
NN:… we prohibit them from entering Russia. Do you know that KCAP colleagues from Holland were sent back from Sheremetyevo, they were not allowed to enter Russia?
I did not know about this fact, but all this is very sad to hear, because urban planning science and knowledge cannot develop in isolation. At any time, there was an exchange, borrowing knowledge in urban planning. To understand this, it is enough to go to St. Petersburg, and in Moscow, in other cities of Russia, there are a lot of buildings designed by foreign architects.
The companies that worked on the Perm Strategic Master Plan are internationally recognized and operate in many countries around the world. At the same time, it is argued that they prepared a low-quality, inapplicable work only on the basis of the conclusion of one expert, while the validity of the conclusions of the expert Mityagin's conclusion raises doubts, which I have already spoken about many times today.
reference
Andrey Golovin - Director of the Perm Municipal Autonomous Institution "Bureau of Urban Projects". In 2008–2010, he oversaw the development of the strategic master plan for Perm and led the team of authors for the general plan for the development of this city.
Nikolay Kichigin - Leading Researcher at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Associate Professor at the Higher School of Urban Studies at the National Research University Higher School of Economics, Ph. D., author of more than a hundred scientific publications on environmental, land and urban planning legislation of the Russian Federation.
Nadezhda Nilina - city planner, leading teacher of the module "Problems of Urbanism" school MARCH.
