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Public Easement: Updates and Prospects for the Development of Laws
 
PIIS231243500028029-9-1
DOI10.61525/S231243500025621-1
Publication type Article
Status Published
Authors
Pavel V. Sizintsev 
Occupation: General Counsel of the Legal Department Legal Department of Transneft PJSC
Affiliation: Transneft PJSC
Address: Russian Federation,
Journal nameEnergy law forum
EditionIssue 3
Pages97-108
Abstract

The article analyzes the procedures provided for by the laws related to the establishment of a public easement in accordance with Chapter V.7 of the Land Code of the Russian Federation, in view of the general requirements for the regulation of easement in accordance with the civil and land laws of the Russian Federation, current changes in this institution of limited real rights in order to identify ambiguous requirements that prevent the formation of consistent law enforcement practice at the level of decisions of government authorities, local self-government and courts in the absence of authoritative guidelines such as, for example, the generalization of judicial practice in the relevant category of cases, and the ways of possible development of public easement institution are formulated.

The purpose of this research is to formulate questions arising during the analysis of the requirements of Chapter V.7 of the Land Code of the Russian Federation and identify gaps in legislative regulation, as well as reasonable judgments thereto in order to find possible directions for further development of the public easement institution.

Keywordsenergy law, legal framework of oil and gas transportation infrastructure facilities, easement, public easement, limitation of right
Received16.05.2023
Publication date12.10.2023
Number of characters46980
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1 Among the many types of facilities, the creation of which may be in demand in the modern world, the most acute issue from the point of view of legal regulation of construction procedures is the placement of linear facilities, since the legal relations arising in the process are at least at the intersection of civil, land, urban planning and environmental laws. The importance of the Russian FEC facilities, including oil and gas transportation infrastructure, heat supply, electric power industry, etc., can hardly be overestimated, their effective functioning ensures Russia’s national security in the energy industry and creates real conditions for the country’s economic growth. As noted by Marat Khusnullin, Deputy Prime Minister of the Russian Federation, at the meeting of the Head of State with members of the Government of the Russian Federation held on March 10, 2022, “...the construction industry will be one of the drivers of the recovery and development of our country’s economy” (meeting of the President of the Russian Federation with members of the Government of the Russian Federation held on March 10, 2022, >>>> The main characteristic of a linear item of immovable property from the standpoint of the immovable property registration laws is its length. In this regard, it should be mentioned that the length of main oil pipelines and petroleum product pipelines in Russia in 2018 exceeds 70 thousand km [1], heating networks at the end of 2020 are 167.4 thousand km, the total length of the gas transportation system today is 178.2 thousand km, and electric power transmission lines of only 110–750kV voltage class more than 490 thousand km. The development and modernization of the Russian FEC infrastructure, the creation of safe conditions for its operation require the construction of new and reconstruction of existing FEC facilities, their scheduled repairs and timely maintenance. The above, as well as some other circumstances (from unresolved issues with crossing the boundaries of land plots to sanctions pressure from other states) one way or another, they require increased attention and the introduction of additional features and exceptions from the general rules when regulating relations arising from the placement of linear facilities.
2 As Gennady A. Volkov, Aleksandr K. Golichenkov, Dmitry V. Khaustov rightly note: “the regulation of easements enshrined in the Russian civil laws currently in force does not take into account the modern, significantly changed conditions. The regulation that existed in the days of Ancient Rome cannot always be applied unconditionally today” [2].
3 An important event of 2018 for the entire industry and scientific community was the adoption of Federal Law No. 341-FZ dated August 3, 2018, “On Amendments to the Land Code of the Russian Federation and Certain Legislative Acts of the Russian Federation in Terms of Simplifying the Placement of Linear Facilities” (hereinafter referred to as Federal Law No. 341-FZ), whereby the legislator significantly modernized the existing institution of public easement or established a completely new institution for domestic laws; an issue that may still be studied by representatives of Russian legal science. At the same time, as Mikhail V. Bocharov rightly notes, “From the point of view of social development, this Law is necessary and useful”. [3].
4 Federal Law No. 341-FZ introduced large-scale changes in laws (10 federal laws were amended, a new Chapter consisting of 14 Articles of the Land Code of the Russian Federation was introduced), which revolutionarily simplified and accelerated procedures related to registration of land rights in order to fulfill objectives for construction, reconstruction, major repairs (the possibility of establishing a public easement for the purposes of engineering structure major repairs was introduced later with the adoption of Federal Law No. 284-FZ dated July 14, 2022? “On Amendments to Certain Legislative Acts of the Russian Federation”, which will be discussed later) and the operation of engineering structures. With the adoption of the said law, utility structures in land laws are understood as electric grid facilities, heating networks, water supply networks, wastewater disposal systems, communication lines and structures, linear gas supply system facilities, oil pipelines and petroleum product pipelines, integral technological parts thereto, if these facilities are facilities of federal, regional or local significance, or are necessary for the organization of public electricity, gas, heat, water supply and wastewater disposal system, connection (technological connection) to the utilities system, or are transferred in connection with the expropriation of land plots on which they were previously located (Article 39.37(1) of the Land Code of the Russian Federation).
5 There is no need to dwell in detail on its advantages in comparison with the existing mechanisms for registration of land rights for similar purposes by land expropriation and/or registration of lease relations, since these innovations, including the lack of the need for the registration of land plot formation in order to encumber them or the possibility to proceed with the implementation of a public easement prior to the registration of relations with the owner of the property, the authors have repeatedly noticed [4]. As Mikhail Bocharov notes, speaking about the terms of registration of permits and approvals in accordance with Federal Law No. 341-FZ, “It allows arranging the placement of utility structures in which there is a public need three to four times as fast.” [5].

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