Volume 11 - Issue 56
/ August 2022
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DOI: https://doi.org/10.34069/AI/2022.56.08.28
How to Cite:
Tarasiuk, Y., Samsin, I., Bliakharskyi, Y., Epel, O., & Pokhylenko, I. (2022). Administrative law tools regulating high-rise
construction in historic city districts: Ukraine and Germany. Amazonia Investiga, 11(56), 291-304.
https://doi.org/10.34069/AI/2022.56.08.28
Administrative law tools regulating high-rise construction in historic
city districts: Ukraine and Germany
Інструменти адміністративного права, що регулюють висотне будівництво в
історичних районах міста: Україна та Німеччина
Received: September 1, 2022 Accepted: October 3, 2022
Written by:
Yurii Tarasiuk116
https://orcid.org/0000-0001-8616-7431
Igor Samsin117
https://orcid.org/0000-0003-4118-8452
Yaroslav Bliakharskyi118
https://orcid.org/0000-0003-3348-1683
Oksana Epel119
https://orcid.org/0000-0002-4400-7808
Iryna Pokhylenko120
https://orcid.org/0000-0001-5409-7408
Abstract
Historical quarters in cities are a living
embodiment of people’s culture and their
collective memory, which preserve their heritage
and past achievements. Urban identity depends
on meeting the current needs while preserving
the past. At the same time, urbanization exercise
pressure on most countries, therefore they
require updating administrative law regulation
tools capable of protecting the identity of the rich
national heritage. The aim of the article was a
comparative legal analysis of the realities and
prospects of preservation of historical districts of
cities in the context of the practice of
administrative law regulation of Ukraine and the
Federal Republic of Germany. The methods of
comparative legal analysis and observation were
the leading methodological tools. The research
revealed specific physical, socio-economic, and
socio-cultural factors of urbanization, which
caused noticeable and significant changes in the
features of the administrative law tools that
regulate urban planning. It was established that
116
PhD of Law, Associate Professor of the Department of Law, Private Higher Educational Establishment University of Emerging
Technologies, Kyiv, Ukraine.
117
Doctor of Law, in Philology, Professor of the Department of Constitutional, Administrative and Financial Law, Khmelnytsky
University of Management and Law, Khmelnytsky, Ukraine.
118
PhD in Law, Senior Lecturer of Department of Labor, Land and Commercial Law, Faculty of Law, Leonid Yuzkov Khmelnytskyi
University of Management and Law, Khmelnytskyi, Ukraine.
119
Doctor of Law, Judge of Sixth Administrative Court of Appeal, Kyiv, Ukraine.
120
PhD in Law, Associate Professor of Department of Political Sciences and Law, Faculty of Urban Studies and Spatial Planning,
Kyiv National University of Construction and Architecture, Kyiv, Ukraine.
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the widespread German concept providing that
every planning act of a lower-level body must
take into account certain mandatory provisions
established by the acts of higher-level bodies is
gradually being tested in Ukraine. It is
substantiated that the armed aggression of the
Russian Federation forces Ukraine to take further
actions to build new safe real estate objects and
preserving historically significant buildings that
were damaged by war. In this context, the
national administrative law tools that regulate
urban planning in Ukraine will also be
transformed. The vector of further scientific
research will be a comparison of the practice of
implementing administrative law tools that
regulate urban planning in terms of post-war
reconstruction in the selected states.
Keywords: urban planning, historical heritage,
urban areas, urbanization, high-rise construction.
Introduction
An appropriate participation, which determines
the link between heritage and sustainability, is an
integral part of international heritage regulation
(Rosetti et al., 2022). Historic urban areas are
part of the history and memory of the city,
representatives of the style of the city and the
main elements of the urban landscape, which
gives them greater value. The types of urban
interventions in historic districts vary depending
on the situation in their urban structure,
economic, social and environmental contexts.
Urban regeneration is one of the important
practices of urban intervention policy which
deteriorates urban areas, with the aim of adapting
their urban structure and bringing them into line
with modern requirements (El-Basha, 2021). In
this aspect, historical urban areas are key
elements of protecting the genesis of the urban
development and culture of the city. Preserving
their safety involves not only planning, but also
comprehensive efforts with the specific methods
and policies for the safety of historic urban areas
as their components (Bu et al., 2022).
In turn, rapid urbanization leads to shifting
accents from the preservation of historical
heritage in the city’s buildings to the activation
of developers and the construction of a large
number of multi-story buildings to ensure the
comfortable existence of citizens (Ignatenko,
2014, p. 116). High-rise buildings are an integral
part of cities and will exist in the future despite
such reasons as changing social needs and rapid
population growth.
The construction of new high-rise buildings in
the historical district of cities significantly affects
the traditional urban structure. Such buildings
transform the existing infrastructure and
transport systems, thus impacting their historical
component, changing the city’s horizon. From an
aesthetic perspective, high-rise buildings mostly
create contextual problems when located next to
historical buildings. We can observe that local
authorities are increasingly trying to find grounds
for the demolition of old historical buildings in
order to prepare land plots for the construction of
modern buildings. In the 21st century,
construction of an increasing number of
innovative buildings can be expected in historic
cities using advanced technologies (Makaklı &
Özke 2017). Sustainable initiative methods
should be used when designing the location of
high-rise buildings, so that the construction is not
considered as an undesirable manifestation of an
extreme form of technological leap penetrating
the existing historical environment (Baiz &
Hoskara, 2022). Unique historical and cultural
features of buildings are their heritage, which
extends beyond the boundaries of the project
itself to the surrounding area, and is mostly
common property of the people (Foster, 2020).
At the same time, high-rise buildings can be
archaic and belong to cultural heritage. They can
be former places of religious worship,
Tarasiuk, Y., Samsin, I., Bliakharskyi, Y., Epel, O., Pokhylenko, I. / Volume 11 - Issue 56: 291-304 / August, 2022
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aristocratic residences, places of public
gatherings, industrial facilities, early modern
office buildings or military facilities.
In this context, the administrative law regulation
itself is aimed at finding sustainable solutions for
harmonizing the preservation of historical
buildings and the construction of new ones. This
regulation is designed at establishing relations
between that public authorities, and determines
the legal rights and obligations of the participants
in the relevant regulated relations (Bortnyk &
Zarosylo, 2022). The aim of public interest-
oriented administrative management is supposed
to mean as the requirement to take into account
the relevant values and interests of all members
of society and strive to respond to their needs and
their views on policy goals in the best possible
way (Coglianese, 2022). Legal regulation of
administrative and legal relations is carried out
by applying legal provisions. A set of tools
developed for the implementation of the legal
provisions regulating public law relations
performs the role of a mechanism of
administrative law regulation (Korostashova,
2019).
In this context, preservation of the historical and
architectural state of cities, formation of a
complex value perception of the authenticity of
historical buildings, and the prevalence of
territorial approaches to the preservation of urban
monuments are of particular importance to
executive authorities. The given vectors
qualitatively transform both the approaches to
the study of the historical background for
appropriateness of construction of a certain type
of buildings, as well as the content of the relevant
administrative decisions.
In view of the foregoing, the aim of the article is
a comparative legal analysis of the state and
prospects of the administrative law regulation of
high-rise construction in historical districts in
Ukraine and Germany. The aim involved the
following research objectives:
1) identify the major current problems of urban
planning in the historical districts of cities in
the territory of Ukraine and Germany;
2) analyse the impact of negative factors that
can produce an impact on the destruction of
historical buildings of cities;
3) propose reasonable administrative law
solutions in order to find a balance of
comfortable legal development in the states
under research.
Literature Review
The choice of the research topic correlates with
the modern vectors of the theoretical research in
different states. The dissertation of Malokhlib
(2020) entitled Legal Bases of Use of the Ground
Areas for Housing Construction became the main
tool and background for the article. In the course
of research, the scholar summarized the grounds
for defining the concepts of building density and
height of the buildings in the context of
preserving the historical and cultural area. The
work of El-Basha (2021) Urban Interventions in
Historic Districts as an Approach to Upgrade the
Local Communities also had an influence on the
author’s opinion on the researched topic. The
scholar prepared the background for outlining the
research vector of administrative law tools of
regulating high-rise construction in the historical
districts of cities.
In turn, the articles of Bortnyk and Zarosylo
(2022) and Coglianese (2022) revealed the
essence of the subject of administrative law
regulation, as well as economic and social
management in the relevant context for the
author of this article. The achievements of Bu et
al. (2022) and Makaklı and Özke (2017)
regarding the impact of newly built high-rise
buildings on historical urban landscapes were
taken into account in the course of the research.
Special attention should be paid to the works of
Foster (2020) on strategies for the adaptive reuse
of cultural heritage buildings and Yasinsky
(2018) on the administrative law mechanisms of
reproduction of residential quarters in the central
parts of small historical cities.
The work of Rosetti et al. (2022), which is used
in the article, emphasize the importance of
participation in the regulation of the historical
districts of cities, as well as the link between
heritage and sustainability. This work helped to
identify the priority areas of relevant measures
and problematic components.
The author Al-Kodmany (2018) outlined such
relevant vectors as innovativeness (novelty),
objectivity, subjectivity, purposefulness,
demand, implementation in practice,
effectiveness of the potential of new digital
technologies for the sustainability of the
construction of high-rise buildings, which were
taken into account in this research.
A number of theoretical and applied problems
remain unsolved despite thorough theoretical
studies on some aspects of the subject under
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research. In particular, the essence and prospects
of certain administrative law tools to regulate
high-rise construction in historical areas of cities
remain poorly studied. The vector of the research
into the importance of preserving the historical
and cultural heritage in the territory of the cities
of Ukraine and Germany was chosen with due
regard to the fundamental achievements of
scholars.
Methods
There were 34 sources surveyed in the course of
this research. Special attention was paid to the
regulatory acts and documents that introduce
innovations in administrative law tools
regulating high-rise construction in general, and
in historical districts in particular. The research
design is described in Figure 1.
Figure 1. The research design.
The methodological background of the research
was a set of methods and techniques of research,
which allowed to achieve the aim and fulfil the
objectives, as well as ensured the reliability of the
obtained results. The dialectical method formed
the methodological background of author’s
research and was used as a basis for the general
description of the administrative law tools
regulating high-rise construction in the historical
districts of cities, and well as for outlining
vectors for their further improvement.
The main research method was the method of
comparative law analysis, which allowed
comparing the realities of the implementation of
declared regulatory measures in the studied area
in Ukraine and Germany. This method also
helped to determine the prospects of the post-war
restoration of the historical districts of the cities
of Ukraine in the context of the practice of
Germany after World War II.
The observation method allowed identifying
adaptive vectors of transformation of the set of
competencies of executive authorities in order to
Basic experiment
1. Sampling, survey of the
legal regulation of the
subject under research in
Ukraine and Germany.
2. Primary comparison of
the legal background of
high-rise construction in the
historical districts of cities,
and the relevant
administrative law
procedures.
3. Drawing general primary
conclusions for this
research vector.
First pilot study
1. A detailed comparison of
the process of approval of
high-rise construction in
historical districts of cities
in Ukraine and Germany.
2. Analysis of the impact of
negative factors on the
destruction of historical
heritage and the importance
of the discretionary powers
of executive authorities in
this context.
3. Generalization of the
obtained conclusions.
Main experiment
1. Outlining promising,
adaptive and innovative
tools of administrative law
regulation aimed at
achieving a balance
between urbanized and
comfortable development
and preserving the national
identity of cities.
2. Outlining the prospects
for the transformation of the
national legal field and
powers of the executive
authorities of the selected
states, taking into account
the results of the
comparative analysis.
Analytical stage
Analysis of the obtained
conclusions, formation of a
comprehensive view of the
subject of research and
author's proposals of
innovations in the outlined
area.
Assessment of the impact of
the war in Ukraine on the
transformation of the
administrative law tools
regulating urban
development. Finding a way
for Ukraine to implement
positive German experience.
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ensure effective preservation of the historical and
cultural heritage of cities. This method was also
useful during the review of negative factors
influencing the preservation of historically
significant buildings, finding effective ways to
eliminate them.
The formal dogmatic approach was applied for
consideration of the provisions of the legislation
of Ukraine and Germany, which regulate the
legal relations under research. This method
helped to determine the regularities of the
emergence and development of the appropriate
tools of administrative law regulation, as well as
to consider the evolution of doctrinal provisions
on the subject under research. The research
involved a system-structural approach, which
allowed identifying problems in the specifics of
the implementation of the declared
administrative law tools of regulation,
determining their constituent elements,
developing a system of standard versions for
drawing general author’s conclusions and
providing proposals on reforming the relevant
legislation of Ukraine and Germany.
The described methodological background
allowed covering the chosen subject of the
research and establishing a well-founded
author’s opinion on further prospects of
improving the tools of administrative law
regulation in order to effectively preserve the
historical districts of cities.
Results
According to the Washington Charter (ICOMOS,
1987), the protection of the historic urban centre
of the city and other historic landscapes requires
special attention to spatial planning and the
relationship between the historic block and its
surroundings. Protection of historical and
urbanized areas of cities should be an integral
component of the general understanding of the
urban structure and the surrounding area. This
requires a coordinated policy of economic,
environmental, cultural and social development,
wit due regard for the historical districts of the
city at all levels of planning, pays special
attention to their social structure and cultural
diversity (The Valletta Principles, 2011). In turn,
historical and architectural areas are supposed to
mean any group of buildings, structures and open
spaces, including archaeological and
paleontological sites, that represent human
settlements in an urban or rural environment
(UNESCO, 2011). Their integrity and value are
confirmed from an archaeological, architectural,
prehistoric, historical, aesthetic or socio-cultural
perspective. The local authorities should develop
a specific plan with a detailed analysis of the
relevant values for this purpose. It should be
accompanied by constant monitoring.
It is appropriate to emphasize that both Ukraine
and Germany have ratified the international
agreements referred to above and have
undertaken to ensure compliance with the
declared provisions. Therefore, it is reasonable to
compare the achievements of the states in the
effective implementation of administrative law
tools of regulation in the area under research.
In Ukraine, the planning and development of
territories remain the main directions of urban
planning (Law No. 2780-XII, 2020). Among
other things, it is appropriate to include the
protection of cultural heritage and the
preservation of the traditional environment of
settlements to the requirements related to such
activities. This requires a coordinated
mechanism of inter-agency cooperation. In
particular, the activities of government bodies,
institutions, ordinary citizens and economic
entities aimed at ensuring an effective balance of
preservation of architectural monuments and the
introduction of innovative technologies into
urban planning are becoming increasingly
important (Law No. 2780-XII, 2020). The
effective and legal development of territories
necessitates a comprehensive planning of
settlements, latest zoning with appropriate
detailing. Planning restrictions regarding the
preservation of legally protected historical areas
and monuments of cultural heritage should not
remain outside the attention of the authorities
responsible for making reformation decisions on
the development of these areas (Law No. 3038-
VI, 2020).
In this context, it is appropriate to indicate the
bodies authorized to regulate and ensure the
urban planning. Article 5 of the Law of Ukraine
(Law No. 1704-VI, 2022) regulates the range of
subjects that have the relevant competence. The
authorized bodies must also take into account the
Building Code in their activities DBN B.2.2-
12:2019 Planning and Development of
Territories (Order No. v0104858-19, 2019). It
should be emphasized that it is the Ministry of
Culture and Information Policy of Ukraine and
its authorized bodies that are responsible for
determining the boundaries and appropriate
regimes for the use of historical areas (Decree
No. 318-2002-п, 2018). In turn, historical sites
can be separated only in territories that are
included in the List of Historical Settlements of
Ukraine (Decree No. 878-2001-п, 2001).
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The technical component of development
transformation also requires attention. New
buildings and reconstructed objects are subject to
certain restrictions that coordinate their binding
with historical structures. In particular, the height
of high-rise buildings directly depends on the
height of historical buildings within a particular
historical area (Law No. 1805-III, 2022). The
provisions of this Law detail the mentioned and
other restrictions related to the preservation of
cultural and historically significant heritage. It
can be stated that the components of the new
proposed high-rise building in the historical
districts of the city should be of high architectural
quality and ensure a sustainable approach to
construction as a whole. The architectural quality
of a building includes scale, shape, mass
proportions and silhouette, facing materials,
relationship with other structures, impact on the
horizon line, impact on the urban landscape and
surrounding views. This type of buildings should
be quite urban, but they should also respect the
historic district of the city, as its impact on the
public space and skyline is different in its scale
and density. It is extremely important to
responsibly manage urban development around
objects of historical value to the city. In this
regard, it is necessary to take into account the
regulation of the buffer zone and maintenance,
which are necessary for the protection of
historical objects from negative effects.
At the same time, the powers of the executive
bodies of Ukraine include the implementation of
measures aimed at preserving high-rise historical
monuments, which should be based on high-
quality contractual legal relations. Such
measures are legally divided into rehabilitation,
restoration and reconstruction (Figure 2), which
require appropriate administrative law tools of
regulation.
Figure 2. The main measures for the preservation of high-rise historical monuments in Ukraine
(summarized by the authors based on the results of the analysis of legislative and doctrinal definitions)
Therefore, the above technical components
produce their direct influence on decision-
making by competent authorities in the field of
proper regulation of high-rise construction in
historical districts of cities. It is worth noting that
in 2019, the Draft Concept of Public
Administration in the Field of Urban Planning for
2019-2030 was prepared (Сabinet of Ministers of
Ukraine, 2019). This Draft Concept established
and recognized qualitative transformations in
spatial development on the territory of Ukraine,
which led to irreparable negative changes in the
field of preservation of historical and natural
environments. The developers of this document
also noted a critical decrease in the public trust in
government bodies in the field of urban planning.
This Draft Concept was never approved by the
Cabinet of Ministers of Ukraine. Instead, a rather
significant event was the adoption of the
Procedure for Developing, Updating, Amending
and Approving Urban Planning Documentation,
approved by Resolution No. 926 of the Cabinet
of Ministers of Ukraine of September 1, 2021
(Decree No. 926-2021-п, 2021). This document
has become an effective regulator that currently
ensures the implementation of administrative law
tools regulating high-rise construction in
Ukraine.
However, the events of February 24, 2022 will
force to revise the entire global system of urban
planning in qualitative terms, focusing on the
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construction of new safe buildings and the
preservation of historically significant buildings
that were damaged by the war. Besides,
according to the data of the Ministry of Culture
and Information Policy, 367 episodes of war
crimes committed by the aggressor state against
the cultural and historical heritage of Ukraine
have already been recorded as of the end of May
2022 (Interfax Ukraine, 2022). The data are
illustrated in Figure 3.
Figure 3. Regional distribution of the destruction of historical and cultural buildings in Ukraine as a result
of the armed aggression of the Russian Federation as of the end of May 2022 (grouped by the authors on
the basis of data published by the Ministry of Culture and Information Policy)
It is obvious that the post-war reconstruction of
the state will only support this thesis and
determine the processes to implement the
measures to ensure the sustainable development
of territories, the reproduction and further
preservation of objects of historical and cultural
purpose with the simultaneous expansion of the
areas of high-rise buildings. Such ambitious
goals will require legal support at the level of
material and procedural legislative acts and by-
laws. Besides, further deregulation of economic
activity which significantly reduced the
institutional capacity of the state in exercising
control over the development of settlements and
territories outside their borders should be
considered conceptually correct in terms of
revival of the investment attractiveness of the
relevant construction.
The decentralization reform that expands the
powers of local self-government bodies to
manage territories is being implemented slowly
and improperly because of the lack of
documentation on spatial planning (urban
planning documentation), lack of experience,
shortage of qualified personnel and difficult
access to public cadastral information.
The rate of informal influence of business on
making decisions by government bodies and
officials still remains extremely high. This
significantly complicates the implementation of
the necessary legislative changes in the country.
The lack of public access to the necessary
information about urban planning, complex
permitting procedures, lack of a competitive
environment and numerous conflicts with the
public lead to abuses and reduce the investment
attractiveness of the urban planning industry. We
can single out three leading factors that will
shape post-war public administration in the field
of urban development (Figure 4).
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Figure 4. The main factors of post-war public administration in the field of urban development (proposed
by the authors based on the results of the analysis)
The concept of public administration in the area
under research should include, in particular, the
need for transition from budgetary to pure
investment financing. There is no doubt that
persistent administrative barriers, corruption
risks, low development of transport and
inefficient engineering infrastructure, the lack of
highly qualified research, engineering personnel
and workers will significantly reduce the pace, in
particular, of high-rise construction. However,
one more important issue in this process — the
coordination of regulations for the development
of the territory with the simultaneous
preservation of the historical and cultural area —
requires attention. The concept of public
management in the field of urban planning in this
aspect provides that it is possible to enshrine a
complete ban on new construction and
reconstruction of buildings and structures within
historical areas, and in the absence of their
approved boundaries — on the entire territory of
historical settlements, in cases where no clear
boundaries of monument protection areas are
established, in the absence of an approved
historical and architectural reference plan.
Besides, the legislation on the organization and
holding of architectural and urban planning
competitions should be harmonized with the
current urban planning legislation and
international standards, encouraging customers
to practice competition in the central parts of
cities and within the historical areas of historical
settlements.
The main principle of high-rise construction
should primarily be the publicity of procedures
for consideration and approval of documentation
regarding land works, urban transformations in
historical settlements. It is necessary to enshrine
the procedure for conducting public
examinations of draft legal acts on the
preservation of cultural heritage, as well as the
introduction of mandatory public hearings of
construction projects in historical areas of
settlements at the regulatory level.
Another legislative act that should regulate the
issue of high-rise construction is the Urban
Planning Code of Ukraine (Liga360, 2010). The
Draft Urban Planning Code (Article 72) proposes
the following types and composition of
functional areas in settlements:
1) areas of public, business and commercial
activity;
2) residential areas;
3) industrial areas;
4) non-industrial areas;
5) special purpose areas;
6) utility and storage areas;
7) recreation areas;
8) promising development areas.
Besides, this project provides that areas will be
determined for historical settlements, for which a
special regime of use is established in accordance
with the legislation on the protection of cultural
heritage:
a) historical areas of historical settlements;
b) lands of historical and cultural purpose;
c) cultural heritage protection areas (Liga360,
2010).
A new wave
of
technological
changes that
will enhance
the role of
innovation in
urban
planning
Reduced role of
human capital as
the main factor
of economic
development
Increasing
global
competition
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That is, the mentioned zoning should exclude the
possibility of high-rise construction on land plots
of historical and cultural purpose and historical
areas.
It is necessary to consider the foreign experience
of such activities on the example of the Republic
of Germany for a more thorough and
comprehensive analysis of the problems of
administrative law regulation of high-rise
construction in the historical districts of cities.
The system of land use planning on the territory
of Germany was launched in 1935 with the
creation of a special national body (Imperial
Office for Spatial Planning). In 1936, this office
determined the vectors of planning land use
within the boundaries of both the entire state and
individual territories.
Moreover, until 1960, governments and local
self-government bodies on the territory of
individual lands were delegated unlimited
powers to develop the rules of local land use and
their zoning.
The above had its negative consequences,
manifested in the uneven development of
territories and the loss of objects of historical and
cultural heritage.
In Germany, there are currently almost a million
archaeological sites, settlements, churches,
workers’ buildings, palaces, cultural areas,
industrial and administrative buildings that
belong to the cultural heritage. Along with
international charters and conventions, Germany
also adheres to international recommendations
for the development and implementation of
strategies related to the protection and
preservation of monuments and cultural
landscapes. Examples include the 1972
Recommendation concerning the Protection, at
the National Level, of Cultural and National
Heritage Paris; the 2011 Recommendation on the
Historic Urban Landscape, Paris; the 2018
Warsaw Recommendation on Recovery and
Reconstruction of Cultural Heritage.
In the Federal Republic of Germany, the
protection of historical heritage is the
responsibility of individual federal states. Each
federal state issues its own regulatory act, which
regulates issues of security, protection,
conservation and study of historical heritage.
Federal laws on the state protection of historical
monuments describe the goals, principles,
organizational structures, and duties of agencies
that deal with the protection of monuments and
other entities entrusted with protection. Besides,
general safety control tools and procedures are
legally enshrined. The rights and obligations of
the owners of monuments are also established,
funds which can be directed to the financial
support of measures for the preservation of
historical monuments are determined.
The Federal Building Code (Federal Ministry of
Justice, n.d.), the Federal Regional Planning Act
(Federal Law Gazette, 1997) and the Federal
Land Utilisation Ordinance (BauNVO, 1962)
together form a comprehensive legal background
for spatial and urban planning with regard to the
protection of cultural values of the Federal
Republic of Germany. These legislative acts
contain provisions on urban development and
construction projects, the parameters of urban
land use planning, specify conservation and
design laws, as well as the duties of the
authorities that issue permits. At the local level,
the authorities develop specific protection rules,
which are coordinated with the protection
authorities that deal with the monuments located
at the federal land. In addition to the state, private
organizations or individuals, such as the German
Foundation for Monument Protection (Deutsche
Stiftung Denkmalschutz) or volunteers for
heritage protection, are involved in the protection
of monuments.
Many German cities have historic districts that
preserve cultural history, support the functioning
of commercial districts, and attract tourists.
Historic cities have assets of both cultural and
economic value with high growth potential in a
sustainable perspective. Historical buildings
become protected by the state after their
inclusion in the relevant list. The list is made by
the state heritage protection authorities at the
proposal of the owner or the municipality where
the historic building is located.
The territorial planning of the German lands
takes place at several levels because Germany is
a federation and a member of the European
Union: at the EU level, the federal level, the level
of federal states, regions and communes
(territorial communities). Besides, land use
planning has been intensified as part of cross-
border cooperation. It should be noted that other
countries, in particular in Ukraine, also have a
multi-level hierarchical system of territorial
planning. Each of the federal self-governing
entities of Germany, the federal state
(Bundesland), adopts its own separate legislation
on territorial planning and land zoning on the
basis of national provisions. At the same time,
the latter should be based on federal legislation
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and only supplement it with due regard to local
characteristics.
Urban and rural territorial planning is carried out
directly at the level of local administrative units
— municipalities (Gemeinden), and usually
consists of two levels. The first level is Land Use
Plans (Flachennutzungsplan or F-plan). They
must take into account the guidelines approved
by federal and local legislation and establish the
specifics of the development of certain zones on
the territory of the municipality. Designation of a
certain area as a functional zone under the F-plan
is not binding, but helps local municipalities in
developing their detailed planning. Documents
of the second level of planning in the
municipality are binding and determine the
detailed planning of the territories and zoning of
the lands of the municipality. In Germany, they
are called building plans (Bebauungsplan or B-
plan). They have a graphic part that defines
individual functional areas, it is regulatory in
nature and is binding for all landowners and land
users. Such plans are not developed for all
territories, but only for those that are either
planned to be actively developed, or, on the
contrary, it is planned to limit commercial
activity in a certain area.
The plans developed in Germany establish the
requirements for the development of land plots
which provide for a number of criteria, in
particular, the type of building, the method of
construction, the area of the land plot allocated
for streets, schools, kindergartens, etc. In turn, if
a local authority in Germany intends to carry out
new construction or renovation, its
representatives must discuss these intentions
with those to be directly affected. Ways of
implementing the planned measures and
collecting the necessary municipal and private
funds are discussed. If the implementation of the
zoning plan (development plan) will adversely
affect those who live or work in the area, the
administration must prepare relevant materials
and discuss them with the citizens concerned.
The community should help those individuals
who will be forced to change their place of
residence or work, as well as companies and
enterprises that will need to change their
location. The results of discussions and
sociological surveys, as well as proposals
developed jointly with the public, shall be
documented. Such documents are called social
plans in Germany.
From the perspective of practice in Germany,
owners need to take into account the cost of
maintaining a historical building preserved.
However, buyers of such properties can receive
support for their investment and further
maintenance of the building through subsidies
and tax incentives. In improved condition, such
properties can generate high demand among
tenants and corresponding income. In turn, the
requirements for historic buildings are regulated
by the law on the protection of monuments of the
respective federal state where the building is
located. The local or state administration for the
protection of historical monuments carries out
relevant administrative law regulation. In
addition to the year of construction, information
on historical buildings includes data on the rarity,
quality of the structure and architecture of the
object. The conditions that property owners must
adhere to, for example, when it comes to
extensions, modifications or renovations shall be
the result of the categorization.
The purpose of preservation of historic buildings
is to protect and permanently preserve cultural
monuments and historically significant buildings
without their alteration, damage or destruction.
This means that a building included in the list of
architectural monuments cannot be altered or
transformed in any way, or can only be altered or
transformed to a limited extent. Major
renovations are only possible after consultation
with the heritage authority and only if they do not
change the appearance of the building.
Preservation of the property is also the owners’
responsibility, they are obliged to repair and
modernize the building while preserving its
historic appearance. Funds for the preservation of
historical buildings are the contact persons on
these issues.
Investors who want to renovate a property and
then rent it out get some tax incentives. The
Denkmal-AfA regulates the amount and time for
claiming maintenance costs for tax purposes.
Accordingly, the property owner is entitled to
deduct nine percent of the cost of modernization
and repair from taxes during the first eight years
after the purchase of the property, and seven
percent during the next four years. Besides, the
depreciation for traditional capital investment is
provided (AFA: Absetzung für Abnutzung). This
includes the wear and tear of the Altbau
buildings, so the acquisition costs are also
deductible. In addition, there are other subsidy
options, such as the KfW subsidy, which can be
requested when architectural monuments are
renovated to improve energy efficiency.
Germany gives appointed urban planners great
powers to accept or reject a building proposed by
developers based on contextual suitability,
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thereby preventing chaotic urban design in the
city.
In view of the foregoing, it can be concluded that
the so-called “counterflow principle” is used to
regulate territorial planning in Germany. It
provides that every planning act of a lower-level
authority must necessarily take into account
certain binding provisions established by acts of
higher-level authorities.
The implementation of these practices in the
national administrative legislation of Ukraine in
the field of high-rise construction in the historical
districts of the cities of Ukraine would be very
useful, especially in the post-war period. This
will contribute to the complex and sustainable
development of territories in Ukraine and the
development of uniform approaches to the
control of land use and protection.
Discussion
In the current context, the issues of proper
regulation of high-rise construction in the
historical districts of cities are becoming urgent,
requiring the executive authorities to ensure the
balance of state and private interests. Malokhlib
(2020, p. 39-40) expressed a rather essential
opinion that the development of cities in Ukraine
has been taking place without expanding their
borders in the last two decades due to more
rational use of urban territories and the
completion of the development of each
microdistrict and quarter. Besides, the vast
majority of high-rise residential buildings are
built with a high urban density, mostly in the
immediate vicinity of existing buildings and
structures. At the same time, the increased
density and the height of the building are being
revised against the background of the actual
backwardness of the engineering infrastructure
of settlements, the levelling of socio-cultural,
health improvement services for residents by the
development, including violations of the
provisions on preservation of the historical and
cultural area. In this context, the developer’s
obligation to preserve the historical and cultural
heritage of the relevant locality must be
documented in the contracts concluded between
the developer and the local self-government
body. Moreover, the relevant local self-
government body should be entrusted with
monitoring compliance with the contractual
obligations.
Therefore, balanced actions in the administrative
law regulation require the regimes that signal
when and where further approval is appropriate
or urgent (Kessler & Sabel, 2021). The result is
the need to take additional measures to delay the
adoption of a final decision or decisive action to
preserve historically significant buildings.
In the context of increased urbanization,
executive authorities need to identify and
establish “complex protected areas” of fragments
of traditional urban buildings that reflect
important stages of the city’s history in order to
reflect and preserve the continuity of the history
of the city’s development. The transformation of
the city into a territory solely for the satisfaction
of its modern needs can affect the preservation of
these fragments of urban development. The
limited area of urban land available for new
construction and the economic benefit from this
construction are the reasons why historical
heritage is mostly affected by developers.
Moreover, the protection of historical heritage
faces new challenges. Cultural heritage faces
such problems as the threat of demolition,
unqualified reconstruction with changing
parameters, old age, desolation, and improper use
because of the gaps in the legislative framework,
incompletely coordinated institutional
interaction, and the complex bureaucratic
process of registration of historical and cultural
areas (Ragheb et al., 2022).
Therefore, it is necessary to take into account
both the preservation of cultural and historical
heritage, and the satisfaction of the needs of a
living and dynamic city. A delicate balance
should be found between both phenomena, as
high-rise buildings can create a powerful and
positive image in the context of collective urban
memory and can become elements that enrich the
urban texture (Makaklı & Özke, 2017). Elegant
and logical design combined with research and
experiments with new forms is necessary in the
construction and renovation of high-rise
buildings in historic urban areas. In this case, it is
very important to use modern technologies, local
culture, historical context, natural environment
and cost-effective solutions (Al-Kodmany,
2018).
It is very important to introduce patronage and
public control over historical heritage objects in
order to comply with the legislative requirements
in the field of cultural heritage protection
(Yasinsky, 2018). According to the researcher, it
is also necessary to improve the system of
preferential taxation of organizations and
enterprises that can take responsibility for the
preservation of relevant objects. The result can
be an increase in their interest in the protection of
cultural heritage and the attraction of additional
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investments. It is appropriate to emphasize that
administrative law tools of regulation are the
balancing link between urban planning,
architectural design and business.
The guiding principles and methods of
sustainable development of the historical districts
of cities can be implemented through preserving
the spatial characteristics of the historical urban
environment, its social content, as well through
the qualitative transformation of the urban
environment based on the constant development
of local culture, traditions and the preservation of
the memory of the area (Pietrostefani & Holman,
2021). The researchers have supported the
author’s position (Minghang & Guanghu, 2021)
that modern strategies aimed at preserving urban
heritage should be people-oriented and satisfy
their needs, shall take into account cultural
traditions, and even established social ties.
Further effective activity at the level of local
executive authorities will be the balance lever on
the way to resolving the critical situation of
destruction of historical heritage.
Conclusions
Preservation of the architectural, aesthetic,
historical and cultural significance of historical
buildings has become a cornerstone of urban
planning for current and future generations.
High-rise buildings, which are an integral part of
modern cities, will exist in the future despite the
evolution and change of social needs, rapid
urbanization and population growth. Urban
development is certainly not destructive, but
disorderly development, unmanaged
modernization, uncoordinated planning and lack
of awareness of heritage values create significant
problems. It can be stated that excessive
population growth, economic development and
the lack of an institutional or legal framework
have currently prepared the background for the
destruction of historical heritage — viable
buildings and structures — in the world. In this
context, the administrative law tools regulating
the development require urgent reform. The
realities require new guidelines for planning,
development and implementation of reforms that
will include such factors as cultural and
architectural heritage.
The conducted research showed that Ukraine and
Germany have a phased procedure for approval
of high-rise construction in the historical urban
areas. At the same time, the mechanisms of such
approval remain insufficiently transparent, and
regulatory legal acts have inaccuracies, which
gives rise to misinterpretation. The introduction
of a completely transparent procedure for
approval of the development of historical urban
districts, with due regard to the latest
achievements of the digitalization of the state and
active involvement of the public in making
relevant decisions, seems quite promising for
Ukraine. At the same time, the high risk of
corruption, which can lead to biased decision-
making before the approval of the latest reforms,
remains an extremely negative factor in the
territory of this state. This problem exists in
many areas and directly affects the gradual
destruction of historical buildings in cities.
Besides, the fate of historically significant
buildings and structures destroyed on the
territory of Ukraine as a result of the military
operations of the Russian Federation remains
uncertain. In the future, the public and leading
specialists in the field of historical and urban
planning should take a balanced approach to this
issue, defending the possibility of preserving the
national identity of Ukraine.
It is appropriate to emphasize that Germany quite
effectively implements the declared decisions
made in compliance with the administrative law
in order to find a balance of comfortable legal
construction and preservation of the state’s
heritage. Despite the strict prescriptions of the
legislation, the approbation of certain tools of
regulation is based on the value criteria of
preserving the historical urban districts and the
active participation of society in the formation of
such criteria.
A comparison of the administrative law
background of regulation in the studied area in
the territory of Ukraine and Germany evidenced
thorough groundwork in Ukraine and significant
positive practical experience in Germany. At the
same time, the vector of further research in the
context of comparison with Ukraine will be the
analysis of Germany’s experience in the field of
state and regional protection of war monuments
in the context of urbanization.
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