Situation: The client, being the owner of the land plot, decided to place a retail pavilion on it. The type of permitted use of the site - “for the organization of trade”, allowed him to use the site for the placement of trade objects.
Having begun construction of the foundation, he received an order from the local administration to stop construction work before obtaining a building permit. At the same time, a prosecutor's investigation began.
Question: Is a building permit required for the construction of a retail pavilion?
Answer: In the situation described, obtaining a construction permit was not required for the construction of the Client’s trade pavilion. Because according to its technical characteristics, the specified object is an object of non-stationary trade.
Rationale for answer: The developer's right to construct a capital construction project is certified by a construction permit. The developer can receive such a document in the manner prescribed by Article 51 of the Town Planning Code Russian Federation.
However, not in all cases the law requires obtaining a construction permit. For example, part 17 of Article 51 of the Town Planning Code of the Russian Federation states that it is not necessary to obtain a construction permit for the construction of kiosks, canopies and other objects that are not capital.
So what distinguishes a capital object from a non-capital one?
According to the position of the Supreme Court of the Russian Federation, reflected in the Determination of December 3, 2008 No. 9-G08-19, legal concepts a capital construction project and a real estate property are identical. This means that non-capital objects are not real estate.
The concept of real estate is contained in Article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the “Civil Code of the Russian Federation”), according to which real estate includes everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible.
According to the legal position Supreme Court of the Russian Federation, reflected in paragraph 38 of the Resolution of the Plenum of June 23, 2015 No. 25, when resolving the issue of recognizing an object as an immovable thing, it is necessary to establish that at least the foundation construction work or similar work has been completed on it.
Thus, the most significant technical characteristic of an object that allows it to be qualified as real estate is the presence of a foundation and the impossibility of moving the object without disproportionate damage to its purpose.
On the other hand, the legislator introduced the concept of non-stationary shopping facility. Note to clause 3.14. "GOST R 51773-2009. National standard Russian Federation. Trade services. Classification of trade enterprises" (approved and put into effect by Order of Rostekhregulirovaniya dated December 15, 2009 No. 771-st), revealing the concept of a non-stationary retail facility, includes pavilions, kiosks, tents, vending machines and other temporary retail facilities. At the same time, the specified GOST R does not reveal the answer to another interesting question.
How does a stationary pavilion differ from a non-stationary one?
« Non-stationary retail facility - a retail facility that is a temporary structure or structure that is not firmly connected to the land plot, regardless of the presence or absence of a connection (technological connection) to utility networks technical support, including a mobile structure...".
pp. 6) Art. 2 of the Federal Law of December 28, 2009 No. 381-FZ “On the Fundamentals government regulation trading activities in the Russian Federation"
In a similar way, this term is disclosed in “GOST R 51303-2013. National standard of the Russian Federation. Trade. Terms and definitions" (approved by Order of Rosstandart dated August 28, 2013 No. 582-st).
Local legislation, supplementing the terminology, clarifies what technical characteristics non-stationary retail facilities must have. For example, Rules for improvement of the territory of Istra municipal district Moscow Region (approved by Order of the Ministry of Housing and Communal Services of the Moscow Region dated July 20, 2015 No. 158-RV) contain the following definition:
“Objects that are not capital construction projects (non-capital objects) - objects the placement of which does not require a construction permit, made of easily erected structures without buried foundations, communications and underground structures, for seasonal or auxiliary purposes, including summer pavilions, small warehouses, as well as trade kiosks, pavilions and other small objects retail, greenhouses, hotbeds, gazebos, stopping pavilions, above-ground toilet cabins, box garages, and other similar structures.”
Thus, a non-stationary trade pavilion must have the following features:
- Should not be firmly connected to the ground (no buried foundation);
- Built from easily erected structures (possibility of relocation without disproportionate damage to the purpose of the object);
- Absence of underground technological connections to engineering support networks (aerial connections are allowed).
ADMINISTRATION OF THE MOSCOW REGION
RESOLUTION
ABOUT THE PROCEDURE FOR LOCATION OF NON-STATIONARY SEASONAL TRADE FACILITIES
Lost force on the basis of the resolution of the administration of the Naro-Fominsk municipal district of the Moscow Region dated July 25, 2017 N 2347.
____________________________________________________________________
Guided by the Federal Law of October 6, 2003 N 131-FZ "On the General Principles of the Organization of Local Self-Government in the Russian Federation", Federal Law of December 28, 2009 N 381-FZ "On the Fundamentals of State Regulation of Trade Activities in the Russian Federation", in order to ensure the settlements of Naro -Fominsk Municipal District in the services of non-stationary seasonal trade, guided by the Charter of the Naro-Fominsk Municipal District, I decree:
1. Approve the Regulations on the procedure non-stationary objects Naro-Fominsk municipal district (attached).
2. Post this resolution on the official website of the administration of the Naro-Fominsk municipal district on the Internet and publish it in the socio-political newspaper "Osnova".
3. Entrust control over the implementation of this resolution to the first deputy administration of the Naro-Fominsk municipal district Shamne R.L.
Head of Administration
Naro-Fominsk municipal district
M.A. Breus
REGULATIONS ON THE PROCEDURE FOR LOCATION AND ORGANIZATION OF OPERATION OF NON-STATIONARY SEASONAL TRADE FACILITIES ON THE TERRITORY OF NARO-FOMINSK MUNICIPAL DISTRICT
Approved
by administrative decree
Naro-Fominsk municipal district
Moscow region
dated April 25, 2016 N 787
1. General provisions
1.1. This Regulation on the procedure for the placement and organization of operation of non-stationary seasonal trade facilities on the territory of the Naro-Fominsk municipal district (hereinafter referred to as the procedure) establishes the procedure for the placement and operation of non-stationary seasonal trade facilities (hereinafter referred to as seasonal trade facilities) on the territory of the Naro-Fominsk municipal district, as well as requirements for legal entities and individual entrepreneurs engaged in the placement, arrangement and operation of seasonal trade facilities.
1.2. For the purposes of this procedure, the following concepts are used:
Scheme - layout of non-stationary shopping facilities on the territory of the Naro-Fominsk municipal district, approved by the resolution of the administration of the Naro-Fominsk municipal district, in the manner established by the resolution of the administration of the Naro-Fominsk municipal district dated 04/13/2015 N 447;
Applicant - a legal entity or individual entrepreneur who has applied for the placement of seasonal trade facilities;
Permit - permission to locate a seasonal trade facility, issued by the administration of the Naro-Fominsk municipal district in the manner established by this procedure (Appendix No. 2);
Permit holder - a legal entity or individual entrepreneur who has received permission to locate a seasonal trade facility;
Objects of seasonal trade - objects based on vehicles; easily erected prefabricated structures, equipped with a counter, on the area of which inventory is placed (tankers, sales tent, melon stand, Christmas tree market);
A tanker truck is a non-stationary mobile trading facility, which is an isothermal container installed on the base of a vehicle or trailer (semi-trailer), designed to carry out delivery trade liquid goods in bulk - kvass, milk.
A sales tent is a non-stationary retail facility, which is an easily erected prefabricated structure equipped with a counter, forming an internal space not enclosed by the counter, intended to accommodate one or more workplaces for sellers and inventory for one day of trading, for sale exclusively seasonal goods(fruits and vegetables and potatoes);
Bakhchevoy collapse is a non-stationary retail facility, which is a specially equipped temporary structure in the form of a separate open area or an established trade tent, intended for the sale of seasonal melons;
The Christmas tree bazaar is a non-stationary trading facility, which is a specially equipped temporary structure in the form of a separate open area for the New Year (Christmas) sale of natural coniferous trees and coniferous tree branches.
1.3. Seasonal trade facilities are located only in places included in the scheme.
1.4. Seasonal trade facilities are located on the territory of the Naro-Fominsk municipal district on the basis of a permit.
2. Basic requirements for seasonal trade facilities
2.1. The placement of seasonal trade facilities and their technical equipment must comply with fire, sanitary, sanitary and epidemiological, architectural norms and rules, rules for landscaping and maintenance of the territory.
2.2. The placement of seasonal trade facilities and their technical equipment must provide the seller (legal entity, individual entrepreneur) with the opportunity to comply with working conditions and personal hygiene rules for its employees.
2.3. The area of a non-stationary retail facility cannot be more than 8 square meters. m.
2.4. The placement of objects for seasonal trade in fruits and vegetables and potatoes, melons, and kvass is carried out in the spring and summer (from May 1 to October 31). Depending on actual weather conditions and in accordance with temperature conditions The terms of seasonal trade for these types of products can be reduced or extended accordingly.
2.5. When carrying out trade, the seller engaged in retail trade must have in stock:
Permission to place a seasonal trade facility;
Quality certificates or declarations of conformity confirming the quality and safety of products (for products included in the Unified List of Products Subject to Mandatory Certification, or the Unified List of Products, confirmation of conformity of which is carried out in the form of accepting a declaration of conformity);
Trade and technological equipment in technically sound condition;
Medical records, employment contracts.
Additionally, when selling coniferous trees, sellers carrying out trade must have in stock:
Agreements with an organization that has the right to harvest and cut down coniferous trees, or documents confirming the legal acquisition of coniferous trees;
Invoices confirming the source of receipt of goods;
A quarantine certificate issued in accordance with the procedure established by the legislation of the Russian Federation by the state supervisory authority, certifying the compliance of regulated products with the requirements of the rules and regulations for ensuring plant quarantine.
2.6. At the place of retail trade, information for consumers must be posted about the operating hours, the organizational and legal form of the seller, telephone numbers of regulatory authorities, the seller must have a badge indicating the full name, name of the legal entity or individual entrepreneur. Samples of all commercially available food and non-food products must be provided with uniform and clearly written price tags indicating the surname and initials of the individual entrepreneur or the name of the legal entity, the name of the product, its grade, the price per unit of measurement of the product, the signature of the financially responsible person or the seal of the legal entity or individual entrepreneur, the date of registration of the price tag.
3. The procedure for issuing permits for the placement of seasonal trade facilities
3.1. Permits are issued by the administration of the Naro-Fominsk municipal district. The permit is issued on the basis of an application from a person interested in placing a seasonal trade facility, in the form in accordance with Appendix No. 1 to this procedure.
The permit is issued free of charge.
The permit expires upon expiration of the period for which it was issued. The maximum validity period of the permit is 90 calendar days.
3.2. If several applications are received for one placement, a permit is issued to the person whose application was received first.
3.3. Information about issued permits is entered into the register.
3.4. The application processing period is 10 working days.
3.5. The administration of the Naro-Fominsk municipal district refuses to issue a permit in the following cases:
The application was not submitted in the form approved by this procedure and does not contain necessary information and (or) the information is not reliable;
The location of seasonal trade facilities indicated in the application is not provided for by the scheme.
3.6. Places for placing seasonal trade facilities are provided to legal entities and individual entrepreneurs registered in the manner prescribed by the legislation of the Russian Federation.
3.7. Trade in the places specified in the permit is carried out exclusively by persons specified in the permit. Transferring the permit to other legal entities and individual entrepreneurs is not permitted.
3.8. The permit is canceled in the event of repeated (two or more times) bringing a trading entity to administrative responsibility for violating the rules of trade, improvement and sanitary maintenance of the place of trade and the adjacent territory established by the current legislation of the Russian Federation, the Moscow region, and regulations of the Naro-Fominsk municipal district , as well as for non-compliance with the requirements for appearance specified in the permit. A notice of cancellation of the permit (Appendix No. 3) is sent to the owner of the seasonal trade facility within 3 business days from the date of the decision to cancel the permit. The owner is obliged to vacate and improve the accommodation within 5 working days from the date of receipt of the notification or after 10 calendar days after sending the notification.
4. Final provisions
4.1. Unauthorized installations of seasonal trade facilities are subject to dismantling by the owner. In this case, the road surface and landscaping elements that were disturbed during the installation of a seasonal trade facility must be restored in the form in which they existed before the installation of the seasonal trade facility, by the efforts and means of the person who carried out the unauthorized installation of the seasonal trade facility.
4.2. Upon expiration of the permit, the owners of seasonal trade facilities are required to dismantle them (disassemble, demolish), vacate and improve the location of the seasonal trade facility.
Appendix No. 1. STATEMENT
Appendix No. 1
to the Regulations on Procedure
placement and work organization
non-stationary objects
seasonal trade in the territory
Naro-Fominsk municipal district
To the administration of Naro-Fominsk
municipal district
from ____________________________
STATEMENT
I request permission to establish a non-stationary seasonal trade facility at
address: ___________________________________________________________________
for trade in seasonal products __________________________________________
(list of product range)
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Operating period: from "______" __________ 20___ to "______" _____________ 20____
Opening hours: from __________________ to _____________________
Information about the applicant: _____________________________________________________
___________________________________________________________________________
(name of organization or surname and initials
individual entrepreneur)
___________________________________________________________________________
(address, place of registration)
___________________________________________________________________________
(N and date of registration certificate, issued by)
___________________________________________________________________________
___________________________________________________________________________
Application: Sketch non-stationary object seasonal trade (in color in
3D format) on ________ sheets.
Signature
Appendix N 2. PERMISSION N for the right to locate a non-stationary seasonal trade facility
Appendix No. 2
to the Regulations on Procedure
placement and work organization
non-stationary objects
seasonal trade in the territory
Naro-Fominsk municipal district
This certificate was issued: _________________________________________________
(full name of the legal entity,
Full name, individual, individual
entrepreneur)
___________________________________________________________________________
___________________________________________________________________________
(address of location of the legal entity, registration of permanent place
residence of an individual, individual entrepreneur)
___________________________________________________________________________
___________________________________________________________________________
(top seasonal property indicating the type of activity)
___________________________________________________________________________
at: ________________________________________________________________
Working days: ________________________________________________________________
Opening hours: ______________________________________________________________
Validity period of the certificate: from "______" __________________ 20__
by "______" __________________ 20__
For appearance requirements, see overleaf
Job title
authorized person (signature) (full name)
Appendix No. 3. Notice of cancellation of permission to locate a non-stationary seasonal trade facility
Appendix No. 3
to the Regulations on Procedure
placement and work organization
non-stationary objects
seasonal trade in the territory
Naro-Fominsk municipal district
Form of the administration of the Naro-Fominsk municipal district
__________________________
(name of organization,
Full name manager, individual entrepreneur)
Notice of cancellation of permission to locate a non-stationary seasonal trade facility
Hereby the administration of the Naro-Fominsk municipal district
notifies about the cancellation of permission to place a non-stationary
seasonal trade object N _____, issued by the administration of Naro-Fominsk
municipal district "_____" ___________ 2016, regarding placement
non-stationary object of seasonal trade according to address references:
___________________________________________________________________________
for a period until "_______"___________ 2016, in connection with identified violations
__________________________________________________________________________.
According to clause 3.8 of the Regulations on the procedure for placement and organization
operation of non-stationary seasonal trade facilities on the territory
Naro-Fominsk Municipal District you are obliged to release and
improve the location within 5 working days from receipt
notifications.
_______________________________ ________________ __________________________
(job title (signature) (full name)
authorized person)
Placement of non-stationary retail facilities
Small business owners often use non-stationary retail facilities. Such retail facilities mean mobile retail structures that are temporarily located on a specific plot of land without being attached to it. Typically they are not connected to utility networks. AT first glance, it may seem that the design and placement of such an object is not difficult. But in practice everything turns out to be much more difficult, since there are now strict requirements for obtaining permission to this type trade. It is especially difficult to obtain permission to place an object in a building or on a plot of land owned by the state. A non-stationary retail facility must be included in the layout plan. It is developed by the city authorities for a certain period of time, and after its expiration is subject to re-examination.
The placement of non-stationary retail facilities is carried out in accordance with Federal law dated December 28, 2009 No. 381 - Federal Law “On the fundamentals of regulation of trade activities in the Russian Federation.” If an NTO is planned to be located on a land plot owned by a private individual, then the procedure for its placement and operation is agreed upon with the owner of the stationary facility on whose territory the NTO’s activities are planned.
In the case of placing a non-stationary retail facility on land plots, in premises that are municipal or state owned, the process must be carried out according to the placement scheme, in order to provide residents with the most rational retail space and sustainable development of the city.
Problems for a businessman arise precisely in the second case, so he will have to go through two stages of registering an NTO.
The first stage of registration is that the NTO is included in the placement scheme. Local authorities are responsible for its creation. We list what documents are required for inclusion in this scheme:
- For legal entities- charter, certificate of state registration
- For individuals entrepreneurship - certificate of state registration of a person as an individual entrepreneur
- certificate of registration with the tax office, as well as a certificate of issuance of a TIN
- a project describing a non-stationary retail facility
If your NTO is included in the placement scheme, then the second stage is to receive permitting documents, which specifies the service life of the facility, as well as other individual conditions.
The main question that arises in the process of obtaining permission is who should raise the issue of including NTOs in the placement scheme. The reason for this is the lack of an answer to this question in the legislation, as well as the lack of judicial precedents. City authorities claim that the inclusion of NTOs in the placement scheme is only their prerogative and the owners have nothing to do with this issue. This runs counter to government policy to promote small and medium-sized businesses, as it does not provide favorable conditions for their activities and does not contribute to the sale of goods and services. That is, the state takes care of small and medium-sized businesses without taking into account their opinions.
Another problem for the owner of an NTO is the lack of confidence in the future, or more precisely, in the fact that after revising the placement scheme, he will be able to continue to carry out his activities in the same place, since they do not have the right of priority placement for a new term.
The legislation does not oblige the authorities to include existing NTOs in the schemes, but only guarantees them the right to conduct activities until the expiration of the period for providing land for their location.
If you do manage to place a retail outlet, then it must meet certain requirements and standards. Firstly, all goods and services sold must be of appropriate quality.
At a small retail trade facility there should be a sign with the company name, location ( legal address), as well as work schedule.
NTOs must meet fire, sanitary, environmental and other standards. Also, the owner of the NTO must provide appropriate working conditions for employees.
If the activities of the NTO are completed upon expiration of the permit for the placement of the NTO, the dismantling and removal of equipment is carried out by the entrepreneur at his expense.
To summarize, it can be said that authorities should establish a clear procedure for obtaining permission to locate point of sale and guarantee the entrepreneur the fact of receiving a permit after the expiration of the current one.
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