Ministry of Economic Affairs and Communications of the Republic of Estonia Suur-Ameerika 1, Tallinn, 10122, Estonia Ministry of Transport of the Republic of Latvia Gogoļa iela 3, Riga, LV-1743, Latvia Ministry of Transport and Communications of the Republic of Lithuania Gedimino av. 17, 01505 Vilnius Estonian Technical Regulatory Authority Sõle 23 A, Tallinn 10614, Estonia RAIL BALTIC ESTONIA OÜ Endla 16, Tallinn, 10142, Estonia Sabiedrība ar ierobežotu atbildību “EIROPAS DZELZCEĻA LĪNIJAS” Maskavas iela 12, Riga, LV-1050, Latvia AB “LIETUVOS GELEŽINKELIAI” Mindaugo g. 12, LT-03603 Vilnius, Lithuania Regarding the issuance of the Utility Requirements Introduction On 20 March 2019 the Rail Baltica Technical Reference Group endorsed Rail Baltica Utility Requirements manual prepared by RB Rail AS. On 13 May 2019 RB Rail AS management board approved Rail Baltica Utility Requirements manual endorsed by the Technical Reference Group (hereinafter – “the Requirements” ). Hereby RB Rail AS is glad to share the Requirements with the Beneficiaries and the Implementing Bodies. The main purpose of the Requirements The Requirements specify conditions for the design and construction of the utility networks and other engineering utilities (hereinafter – “the Utilities” ) in the territory of the Rail Baltica Railway line and adjacent to it. The issued Requirements should be binding to the third-parties applying for construction of their Utilities and other objects next to and/or crossing the Rail Baltica railway corridor. Issuance model of the Requirements At the moment RB Rail AS has no clear legal mandate to arrange the issuance of the conditions. Nevertheless, RB Rail AS sees advantages of the centralized issuance model and will be ready to provide such a service to Beneficiaries. Strengths of the centralized model: Rail Baltica is considered as one homogenous asset with centralized design, which justifies application of the Requirements in a similar centralized manner ; Centralized model ensures future operational homogeneity, ensuring aligned safety requirements, operational rules and principles; RB Rail AS personnel have necessary expertise and practical experience to issue the Requirements for linear infrastructure objects; RB Rail AS maintains BIM model, which facilitates population of the digital drawings with data from 3 rd parties; RB Rail AS is fulfilling role of the Quality Controller in Rail Baltica project implementation. RB Rail AS request RB Rail AS hereby kindly asks you to: Address the matter urgently and decide on the issuance model of the Requirements. In case if the centralized issuance model is preferred, please provide your principal confirmation on the centralized way of issuance of the Requirements to the third-parties by RB Rail AS at your earliest convenience, but not later than by 30 June 2019. If no answer will be received, centralized issuance model will be considered as accepted by the respective institution . In case another issuance model is preferred, please provide details of the target Requirements issuance model (responsibilities, supervision of compliancy, fulfillment of 3D models etc.) at your earliest convenience, but not later than by 30 June 2019. Upon receipt of approval from all addressees of this letter, RB Rail AS will contact each addressee separate ly to agree on the next steps required to issue the Requirements. Annexed (attachments are sent by e-mail only): Legal report in respect of the application of the Requirements for the Utilities on 79 pages. Technical Reference Group endorsed Rail Baltica Utility Requirements manual. Sincerely, _________________________ Timo Riihimäki RB Rail AS Chairperson of the Management Board _________________________ Mart Nielsen RB Rail AS Management Board Member THIS DOCUMENT IS SIGNED ELECTRONICALLY WITH A SAFE ELECTRONIC SIGNATURE AND CONTAINS A TIME STAMP
Legal report
Prepared for RB Rail AS
in respect of the application of the Requirements for the Utilities
Riga, 14 December 2018
Contents
Section page
Section 1 Scope of the Report 8
Section 2 Comparison of the main issues 11
Section 3 Regulation in Estonia 15
Section 4 Regulation in Latvia 29
Section 5 Regulation in Lithuania 45
Section 6 Manual for preparation and application of the UR 61
Section 7 Disclaimer 78
2
Glossary of Terms
Term / Abbreviation Definition
GENERAL
Beneficiaries Ministry of Transport and Communications of the Republic of Lithuania, Ministry of Transport of the Republic of Latvia, Ministry of
Economic Affairs and Communications of the Republic of Estonia
Changes Changes to the Railway Line and its related objects identified within the CPTD and design stage.
Client RB Rail AS
Consolidated Preliminary Finalized results of the review, evaluation and optimization of the preliminary design’s solutions arising from interoperability, user
Technical Design (CPTD) and railway business, optimum life cycle cost, efficiency, sustainable and environmentally friendly railway operation as well as the
Rail Baltica Global Project perspective. CPTD covers the set of identified necessary modifications and improvements to be evaluated
in detail within the design phase. The improvements identified might result in railway alignment modifications. CPTD is an additional
voluntary designing stage and it does not fall within the scope of any of the design phases prescribed under the construction
regulation.
Contracting Scheme Agreement Agreement on The Contracting Scheme for The Rail Baltic / RAIL BALTICA between RB Rail AS, Ministry of Economic Affairs and
(CSA) Communications of The Republic of Estonia, Ministry of Transport of The Republic of Latvia, Ministry of Transport and Communications
of The Republic of Lithuania, Estonian Technical Regulatory Authority, Rail Baltic Estonia OU, Eiropas dzelzceļa līnijas SIA, Lietuvos
geležinkeliai AB, Rail Baltica Statyba UAB on 30 September 2016.
Detailed Technical Design The final stage of the design process in accordance with national construction law / building act regulations and it gives the right to
(DTD) start construction works.
UR (Utility Requirements) Requirements for various Utilities and Utilities networks like underground cables, electricity masts, and other Utilities which will be
prepared by the Client and determine a minimal set of requirements that would become mandatory for any person interacting with
the perspective Railway Line in the Baltic States.
Implementing Bodies Rail Baltic Estonia OU and the Estonian Technical Regulatory Authority in Estonia, Eiropas Dzelzceļa līnijas SIA in Latvia, Rail Baltica
Statyba UAB and Lietuvos geležinkeliai JSC in Lithuania.
Inter-Beneficiary Agreement Inter-Beneficiary Agreement between RB Rail AS, Ministry of Economic Affairs and Communications of The Republic of Estonia and
Ministry of Transport of The Republic of Latvia and Ministry of Transport and Communications of The Republic of Lithuania on 16
June 2016.
Inter-Governmental Agreement Agreement between The Government of The Republic of Latvia, The Government of The Republic of Estonia, and The Government
of The Republic of Lithuania on The Development of The Rail Baltic/Rail Baltica Railway signed on 31 January 2017.
Master Design Consolidated approach of full design documentation package aimed towards detailed technical design by considering all legal
requirements set out in national construction legislation and following the established design guidelines for the railway. The result
3
of the Master Design is a set of documents (incl. 3D model drawings) which clearly shows the scope of the project, includes a
situation plan with an accurate placement of the railway, main signalling, contact line and electrical network details. The scope of
this set has to be wide and precise enough so that the main details are clear. The Master Design is required by RB Rail AS as an
additional requirement to align the Global Project solutions and at the early level of the detailed technical design preparation together
with all requirements specified in the technical specification for the Master Design.
Project Rail Baltica project in the territory of Latvia, Estonia and Lithuania, including the Railway Line and all related infrastructure and
solutions.
Railway Line European standard gauge public railway infrastructure line Rail Baltica in all three Baltic States.
Report This legal report.
Shareholders Agreement Shareholders' Agreement relating to RB Rail AS entered into between OÜ Rail Baltic Estonia, SIA "Eiropas dzelzceļa līnijas" and UAB
"Rail Baltica statyba" on 28 October 2014, as amended.
Utilities Engineering networks consisting of piping, cables, wires, equipment, devices and facilities, which are intended for the production,
transmission (transport), storage or distribution of electricity, thermal energy, gas, electronic communications, water and other
resources, as well as engineering and internal engineering networks.
ESTONIA
ACA Administrative Co-operation Act, adopted by Riigikogu on 29 January 2003 with subsequent amendments.
Building Act Previous act that regulated building, repealed on 07 May 2015 and was substituted by the Building Code.
Building Code Building Code, adopted by Riigikogu on 11 February 2015 with subsequent amendments.
Building design document A document or set of documents that is prepared in the course of designing the construction work and that contains the information
necessary to build the construction work.
Building notice Notification of building construction work to the competent authority (usually local government). Must be submitted 10 days before
commencement of construction work.
Building permit Grants the right to build the construction work that corresponds to the building design documentation on the basis of which the
building permit is issued.
County-wide spatial plan Spatial plan for an entire county. It serves as the basis for the preparation of comprehensive plans for municipalities and cities,
also it has to be followed when issuing building permits etc.
EVS Estonian standards, adopted by Estonian standardisation bodies (Estonian Centre for Standardisation).
IBCPA An Act to Implement the Building Code and the Planning Act, adopted by Riigikogu on 18.02.2015 with subsequent amendments.
4
LOPA Law of Property Act, adopted by Riigikogu on 9 June 1993 with subsequent amendments.
Ministry Estonian Ministry of Economic Affairs and Communications.
Planning Act Planning Act, adopted by Riigikogu on 28 January 2015 with subsequent amendments.
Railway Line Corridor The position of Rail Baltica in Estonia, fixed in the county-wide spatial plans for Harju, Rapla and Pärnu counties. Consists of the
land necessary for building the Railway Line, the protection zone surrounding the Railway Line and the shifting space (the area
inside the Railway Line Corridor which can be used to change the alignment of the Railway Line if the planned alignment is not
usable for some reason).
TRA Estonian Technical Regulatory Authority.
LATVIA
Cabinet Cabinet of Ministers of the Republic of Latvia.
Construction Law Construction Law, as adopted by Saeima on 9 July 2013 with subsequent amendments.
LVS Latvian State Standards (Latvijas Valsts standarts), applied on voluntary basis unless otherwise indicated by the Cabinet Regulations.
ONI Object of National Interests according to Article 7.1(11) and Article 17 of the Spatial Development Planning Law.
ONI Territory The territory of the Railway Line in Latvia as defined in Order 467 and Order 468.
Order 467 Order No.467 issued by the Cabinet of Ministers on 24 August 2016, approving the activities planned for the construction of the
European standard gauge public railway infrastructure line Rail Baltica.
Order 468 Order No.468 issued by the Cabinet of Ministers on 24 August 2016, determining the status of national interest object for the
European standard gauge public railway infrastructure Rail Baltica.
Protection Zone Law Protection Zone Law, as adopted by Saeima on 5 February 1997 with subsequent amendments.
Railway Law Railway Law, as adopted by Saeima on 1 April 1998 with subsequent amendments.
Regulations 240 Regulations of the Cabinet of Ministers No.240 dated 30 April 2013 “General Regulations for the Planning, Use and Building of the
Territory”.
Regulations 500 Regulations of the Cabinet of Ministers No.500 dated 19 August 2014 “General Construction Regulations”.
Regulations 574 Regulations of the Cabinet of Ministers No.574 dated 30 September 2014 “Regulations on the construction standard LBN 008-14
“Layout of engineering networks".
Regulations 79 Regulations of the Cabinet of Ministers No.79 dated 1 February 2005 “Exploitation requirements for the railway right of way".
5
Regulations 91 Regulations No.91 issued by the Cabinet of Ministers on 13 February 2018, determining regulations for use of national interest object
- European standard gauge public railway infrastructure line Rail Baltica.
Spatial Plan Spatial planning instrument of the whole territory of a local municipality, i.e., a municipality spatial plan as defined by the Spatial
Development Planning Law.
LITHUANIA
Railway Transport Code Railway Transport Code adopted by the Parliament of Lithuania (Seimas) on 22 April 2004 with subsequent amendments.
Construction Law Law on Construction adopted by Seimas on 19 March 1996 with subsequent amendments.
Spatial Planning Law Law on Spatial Planning adopted by Seimas on 12 December 1995 with subsequent amendments.
Land Law Law on Land adopted by Seimas on 26 April 1994 with subsequent amendments.
Expropriation Law Law on Expropriation of Land for The Implementation of Projects of Specific National Importance adopted by Seimas on 12 April
2011 with subsequent amendments.
Builder The initiator of Utility construction.
LTSA Lithuanian Transport Safety Authority.
SSPCA State Spatial Planning and Construction Authority under the Ministry of Environment of Lithuania.
Decision on Special Plan Decision of the Government of the Republic of Lithuania No. 31 ‘On Agreement on Special Plan of European Standard Railway Line
Kaunas-State Border of Lithuania and Latvia and the Beginning of the Expropriation for the Needs of the Society to Lay the European
Standard Railway Line Kaunas-State Border of Lithuania and Latvia’ adopted on 11 January 2017.
Special Plan Special Plan of European Standard Railway Line Kaunas - State Border of Lithuania and Latvia, approved by the Decision of the
Government of the Republic of Lithuania No. 31, dated 11 January 2017.
Decision on Special Land Decision of the Government of the Republic of Lithuania No. 343 ‘On Approving of Special Conditions for Land and Forest Usage’
Conditions adopted on 12 May 1992 with subsequent amendments.
Decision on National Importance Decision of Seimas No. XI-1612 ‘On Declaring the Project ‘Rail Baltica’ as a Project of a National Importance’ adopted on 11 October
Project 2011.
CTR Structure Design Order No. D1-738 issued by the Minister of Environment on 7 November 2016 ‘On Approving the Construction Technical Regulation
STR 1.04.04:2017 ‘Structure Design. Design Expertise’ with subsequent amendments.
CTR Construction Permitting Order No. D1-878 issued by the Minister of Environment on 12 December 2016 ‘On Approving the Construction Technical Regulation
Documents STR 1.05.01:2017 ‘Construction Permitting Documents. Completion of Construction. Suspension of Construction. Removal of the
6
consequences of wilful construction. Removal of consequences concerning construction under the illegally issued permission’ with
subsequent amendments.
CTR Construction Works Order No. D1-848 issued by the Minister of Environment on 2 December 2016 ‘On Approving the Construction Technical Regulation
STR 1.06.01:2016 ‘Construction works. Supervision of the Constructions of the Structure’ with subsequent amendments.
CTR Classification of Structures Order No. D1-713 issued by the Minister of Environment on 27 October 2016 ‘On Approving the Construction Technical Regulation
STR 1.01.03:2017 ‘Classification of Structures’ with subsequent amendments.
7
SECTION 1: SCOPE OF THE REPORT
Section 1.
Scope of the Report
8
SECTION 1: SCOPE OF THE REPORT
Scope of the Report
1 The Client’s Beneficiaries have recently approved the Design Guidelines for the Rail Baltica Project. The Design Guidelines determine a unified set of
requirements for the Project in the three Baltic States. They are mandatory for the outsourced designers of the perspective railway track. Currently the Client’s
technical team is drafting the Utility Requirements (hereinafter – the UR). The UR will determine a minimal set of requirements that would become mandatory
for any person interacting with the perspective railway track in the three Baltic States. For example, if any person would like to build a new pipeline that would
cross the Railway Line, the Client shall be able to enforce the UR and the respective third party would have to comply with the requirements of the UR. The UR
will regulate, for instance, minimal horizontal clearances from underground Utilities to the perspective railway track, minimal horizontal distances between
underground Utilities under the track, and other technical issues. In order to prepare the UR, the Client needs legal advice to ensure the possibility to effectively
implement the UR towards third parties in the three Baltic States. It is also our understanding that the conclusions made herein will be applied throughout all
the implementation stages of the Project – design, construction and operation of the Railway Line. The Client also intends to prepare and implement the
documents identified as necessary in this Report for effective implementation of the UR.
2 According to the Client’s instructions, in this Report we have analysed three main legal issues: (1) if and how the fact that the land under the Railway Line is
currently not owned by the Client, the Beneficiaries or Implementing Bodies affects the Client’s possibilities to implement the UR with a binding nature towards
third parties; (2) whether it is possible to enforce the UR with stricter technical requirements than currently stated in the laws of the three Baltic States; (3)
Client’s unclear interaction procedure with third parties, Beneficiaries, Implementing Bodies, state authorities or any other institutions in the three Baltic States
regarding the implementation of the UR. We have also analysed if and how the enforcement of the UR would be affected in case the alignment of the Railway
Line currently approved in all three Baltic States would be changed.
3 We have divided the Report in the three main Sections in each Section analysing and giving answers to the following questions with respect to each of the
Baltic States: (1) Is it possible to enforce the UR in a manner that is binding to third parties while the Client, the Implementing Bodies and the Beneficiaries
are not the owners of the land under the Railway Line? If no, how can this issue be solved? (2) If yes, is it possible to enforce the UR in a manner that is
binding to third parties with stricter technical requirements than currently stated in the laws and regulations? (3) If the answer to question 1 is positive, how
shall the Client interact with the third parties, Beneficiaries, Implementing Bodies, state authorities or any other institutions to actually enforce the UR? (4) If
the answer to question 1 is positive, what documents (for example, letter, notification, order, power of attorney) shall the Client issue, to whom and when?
We have also included a comparison of the regulations of all three Baltic States in the first Section and a practical manual in Section 6.
4 Please note that the legal analysis carried out in the framework of this Report reveals that no legislation in the Baltic States has been specifically adapted to
the implementation of the Project - the objectives to be achieved by the Project have not been sufficiently assessed in the existing regulatory framework.
However, with the understanding that the deadlines for the implementation of the Project cannot be extended until all national legislation is ideally arranged
for smooth and successful implementation of the Project, in this Report we have drawn rather robust conclusions, based mainly on the interpretation of the
legal framework in accordance with its purpose in light of the objectives of the Project and its international nature.
5 In this Report, we have not reviewed and analysed technical matters and requirements in substance (including national and EU construction standards), nor
the agreements with designers and engineers already concluded or to be concluded.
6 We have assumed that the information provided to us for the purposes of this Report is complete and accurate, that all relevant information on public registers
searched by us is complete, accurate and up to date at the time of the relevant search, that all copies are complete and correct copies of the originals, that all
documents have been validly executed and are fully enforceable in accordance with their terms and any authorizations have not been revoked or rescinded
within these documents.
9
SECTION 1: SCOPE OF THE REPORT
7 Our Report is based on the review and analysis of documents directly referred to in the Report, information provided by the Client during the course of
preparation of the Report, as well as information available on the Client’s webpage and the following documents:
a. Inter-Beneficiary Agreement on 21 (twenty-one) pages, its Amendment No 1 on 4 (four) pages;
b. Shareholders Agreement on 51 (fifty-one) pages, its Amendment No 1 on 4 (four) pages;
c. Contracting Scheme Agreement on 29 (twenty-nine) pages;
d. Relevant Latvian, Estonian and Lithuanian law and case-law related to the task.
10
Section 2.
Comparison of the main issues
11
SECTION 2: COMPARISON OF THE MAIN ISSUES
Comparison of the main issues
The table below shows a concise comparison of the main issues discussed in this Report between the three Baltic States.
ESTONIA (Section 3) LATVIA (Section 4) LITHUANIA (Section 5)
1. Enforcement of the UR Possible via the issuance of the approval Possible via the issuance of the requirements Possible via the issuance of the
in a manner that is of the Ministry to the building authority. for the construction in the ONI Territory requirements for construction in the
binding to third (territory designated for the construction of railway protection zone (only after the
parties the Railway Line) by the Ministry of railway protection zones are registered
Transport. with the Register of Real Estate).
2. Involvement of the Direct involvement (towards the Direct involvement (towards third parties) Direct involvement (towards third parties)
Client in determining building authority) possible. possible. possible.
the binding A cooperation agreement between the A delegation agreement between the Client A cooperation agreement between the AB
requirements for the Ministry and the Client to be concluded and the Ministry of Transport to be concluded Lietuvos geležinkeliai and the Client to be
construction of the pursuant to which the Client is pursuant to which tasks under Regulations concluded pursuant to which the Client and
Utilities authorized to issue the requirements to 91 are delegated to the Client – the Client AB Lietuvos geležinkeliai would agree on
the building authority directly on behalf issues the requirements in its own name. the procedure of issuing consents to third
of the Ministry. parties directly on behalf of AB Lietuvos
geležinkeliai. Please see section 5.3 for
further information.
3. Involvement of A letter to be sent inviting to take notice A letter to be sent: (1) reminding about the A letter to all relevant (inter alia –
municipal of the county-wide spatial plans requirements under Regulations 91; (2) municipal) authorities participating in
construction explanatory memorandum point 3.3.1 informing about the authorisations of the approving / supervising construction
institutions and other and the cooperation agreement between Client set in the Inter-Governmental inviting them to take notice of the
competent the Ministry and the Client upon Agreement and in the CSA (3) informing agreement between the Client and AB
construction handling requests for permits and about the delegation agreement between the Lietuvos geležinkeliai and the
authorities building notices in the Railway Line Client and the Ministry of Transport (if authorisations of the Client set in the Inter-
Corridor. concluded before the letter is sent); (4) Governmental Agreement as well as in the
inviting to inform about all significant CSA.
construction initiatives in the territories
adjacent to the ONI territory.
4. Stricter requirements Minimal clearances for the Utilities Minimal clearances for the Utilities mainly Minimal clearances for the Utilities mainly
option regulated mainly by regulations and regulated by Cabinet Regulations. regulated by government regulations and
non-mandatory standards. Although not clearly stated in the laws or standards.
Stricter requirements should be possible case-law, stricter requirements should be Although not clearly stated in the laws or
with a reasonable justification and with possible in case of a necessity if reasonable case-law, stricter requirements should be
a reference to laws (if possible) and not justification exists.
12
SECTION 2: COMPARISON OF THE MAIN ISSUES
exceeding maximum clearances if such possible with a reasonable justification in
are stipulated. place.
5. Description of the
process – main steps
5.1. Submission of the third The construction initiative of the third Submitted to the Ministry of Transport or to Submitted to AB Lietuvos geležinkeliai and
party for issuance of party is submitted to the competent the Client directly if agreed so in the later forwarded to the Client according to
the requirements for construction institution who requests delegation agreement. the cooperation agreement or without it.
the construction in the the issuance of the approval of the
territory of the Railway
Ministry.
Line
5.2. Issuance of the Issued by the Client to the competent Issued by the Client to the third party. Issued by the Client to the third party on
requirements for the building authority on behalf of the behalf of AB Lietuvos geležinkeliai. For
construction of the Ministry. more information please see Section 5.3.
Utilities in the territory
of the Railway Line
5.3. Further involvement of The Client may set a condition in the Approval of the technical design of the If construction permitting documents are
the Client in the technical requirements to conduct on- respective Utility by the Client (if determined required for construction of the Utilities:
construction process of site inspections. In case of issues with as a request in the technical requirements) 1) approvals of the technical design by
the Utilities the construction (not built according to and involvement in the commissioning of the the Client on behalf of AB Lietuvos
the building design document which has Utility structure (depending on the type of geležinkeliai and the LTSA;
been amended with the technical the Utility) with inspection rights before the 2) site visits by the Client on behalf of
requirements), the Client will notify the commissioning. AB Lietuvos geležinkeliai;
law enforcement to take action. 3) participation in the commissioning
procedures by the Client on behalf of
AB Lietuvos geležinkeliai.
If construction permitting documents are
not required:
1) the Client’s consent for construction
within the Railway Line protection
zone on behalf of AB Lietuvos
geležinkeliai;
2) site visits by the Client on behalf of
AB Lietuvos geležinkeliai /
13
SECTION 2: COMPARISON OF THE MAIN ISSUES
Client’s authorisations to act on behalf of
AB Lietuvos geležinkeliai arise from
Intergovernmental Agreement and SCA,
however, shall be precisely stipulated in the
cooperation agreement. Please see section
5.3 for further information.
Disclaimers and time- Not necessary as requirements for A validity term may be included, approval of Not necessary as requirements for
limits to be included in construction are definitively determined the technical design may be requested. construction are definitively determined by
the requirements by the building authority (TRA or local the applicable legal acts.
authority issuing the permit).
14
SECTION 3: REGULATION IN ESTONIA
Section 3.
Regulation in Estonia
15
SECTION 3: REGULATION IN ESTONIA
Summary of Section 3
Is it possible to enforce the UR in a manner that is binding to Is it possible to enforce the UR in a manner that is binding to
third parties while the Client, the Implementing Bodies and the third parties with stricter technical requirements than
Beneficiaries are not the owners of the land under the Railway currently stated in the laws and regulations?
Line?
It is possible to enforce the UR in a manner that is binding to third parties while The regulations in Estonia that regulate the clearances usually set minimal
the Client, the Implementing Bodies and the Beneficiaries are not the owners of clearances between Utilities, and between the Utilities and other objects.
the land under the Railway Line. According to the county-wide spatial plans In large part these clearances are regulated by non-binding standards.
explanatory memorandum point 3.3.1, it is required to ask for the Ministry’s Thus, it is possible to set stricter regulations for the clearances between
opinion when planning to build any construction in the Railway Line Corridor the Utilities and objects of the Railway Line infrastructure in the technical
that requires a building design document, building notice or building permit. requirements issued with the approval or non-approval of the Ministry, if
Keeping in mind the purpose of the county-wide spatial plans and the the regulations or laws state that the clearances are minimal clearances
importance of the Railway Line, this opinion must be interpreted as an approval and don’t stipulate a maximum clearance. When determining the stricter
as stipulated in the Building Code. Therefore, the Ministry can set a binding UR requirements, the Ministry has to present reasonable justification for the
on a case-by-case basis by refusing to give approval unless the conditions for need for such stricter requirements, referencing to concrete legal
Utilities set by the Client have been met. requirement if possible.
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SECTION 3: REGULATION IN ESTONIA
How shall the Client interact with the third parties, Beneficiaries, What documents shall be issued, to whom and when in order
Implementing Bodies and other institutions to actually enforce to enforce the UR?
the UR?
In order to enforce the UR, several options of action were analysed (for In order to enforce the UR, the following documents shall be issued:
more detail please see Section 3.3 below) and the following one found to 1) a co-operation agreement between the Client and the Ministry by
be the most appropriate, clear and less risk involving. which the Ministry authorizes the Client to give approvals along with
In order to enforce the UR, the following actions have to be taken by the technical conditions on the Ministry’s behalf as established in the
Client: county-wide spatial plans explanatory memorandum point 3.3.1 –
1) negotiation and conclusion of a co-operation agreement between the without delay;
Client and the Ministry by which the Ministry authorizes the Client to 2) a letter to all relevant competent authorities (local governments in the
give approvals along with technical conditions on the Ministry’s behalf three counties, TRA) inviting them to take notice of the county-wide
as established in the county-wide spatial plans explanatory spatial plans explanatory memorandum point 3.3.1 and the co-
memorandum point 3.3.1; operation agreement upon handling requests for permits and building
2) sending a letter to all relevant competent authorities (local notices in the Railway Line Corridor – without delay;
governments in the three counties, TRA) inviting them to take notice 3) technical conditions under county-wide spatial plans explanatory
of the county-wide spatial plans explanatory memorandum point 3.3.1 memorandum point 3.3.1 on the Ministry’s behalf to relevant
and the co-operation agreement upon handling requests for permits competent authorities (on a case-by-case basis) – within 10 days of
and building notices in the Railway Line Corridor; the receipt of respective requests by the Ministry.
3) issuing approvals on the Ministry’s behalf along with the technical
requirements under county-wide spatial plans explanatory
memorandum point 3.3.1 to competent authorities within 10 days
after receipt of respective requests by the Ministry.
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SECTION 3: REGULATION IN ESTONIA
3.1. Binding effect of the UR towards third parties
Requirements In Estonia, the Railway Line Corridor has been fixed with county-wide spatial plans. The Railway Line will pass through Harju, Pärnu and Rapla
set by the counties. Estonian county-wide spatial plans for Harju, Pärnu and Rapla counties all specify (explanatory memorandum point 3.3.1) that for
county-wide the construction of the Railway Line, the Corridor must be kept free of all construction and whilst creating comprehensive plans and detailed
spatial plans spatial plans, the Railway Line Corridor and road locations as defined in the spatial plans, must be considered. Also, until the land needed for
(current the establishment of the Railway Line has been acquired by the Republic of Estonia, it is required to ask for the opinion of the Ministry whilst
situation,
planning to build any construction in the Railway Line Corridor that requires a building design document, building notice or building permit.
before
acquiring the Therefore, since there is no way to completely forbid construction work in the Railway Line Corridor, it is required to ask for the Ministry’s
land) opinion.
The entity who has to ask for the Ministry’s opinion depends on who the competent authority is who issues the building permit or to whom
the building notice must be submitted. This is usually the local authority, in some cases it is the TRA. The TRA is also in charge of verifying
whether construction work is safe to use and occupy after it has been built.
One must differentiate between opinions and approvals in an administrative procedure. The final administrative act (e.g. building permit) is
issued by the competent authority at the end of an administrative procedure. Asking for an opinion or an approval happens during the
administrative procedure.
An opinion is not binding to the competent authority responsible for the administrative procedure (i.e. a local government handling a request
for a building permit). For example, Building Code § 42 subsection 8 stipulates that if observations are submitted concerning the proposal of
a building permit in the course of the giving of approvals and opinions, the competent authority takes appropriate consideration of these
observations or states the reasons for not taking them into consideration. This means that the competent authority may issue an administrative
act (building permit) regardless of the fact that there was a request in the opinion to refuse the permit. Nevertheless, the competent authority
is required to reason why the request of the opinion was left dissatisfied.
On the other hand, an approval is usually given by another state or local governmental body to the competent authority and it may be legally
binding to the latter. Therefore, if the body giving an approval refuses to agree with the issuing of an administrative act, the competent
authority is not allowed to issue the administrative act (permit). An approval is binding to the competent authority (local authority or TRA) if
the approval is based on the law or on an administrative act, including general or detailed plan.
Please note that according to spatial plans, the local government handling a request for a building permit is obligated to ask for the Ministry’s
opinion. It is however, reasonable to conclude that the opinion referred to in explanatory memorandum point 3.3.1 of the county-wide spatial
plans is to be interpreted as an approval and not an opinion as mentioned previously. Due to the fact that explanatory memorandum point
3.3.1 of the spatial plans states that the Railway Line Corridor must be kept free of all buildings, it is justified to argue that the Ministry’s
opinion has to be considered as an approval as stipulated in the Building Code, otherwise it wouldn’t be possible to ensure the safety and the
proper construction of the Railway Line.
18
SECTION 3: REGULATION IN ESTONIA
According to IBCPA § 13 subsection 2, spatial plans concerning the selection of the corridor of linear construction works that run through the
territory of several local authorities are regarded as national designated spatial plans within the meaning of the Planning Act. Since the Railway
Line Corridor runs through several local authorities, the county-wide spatial plans for Harju, Rapla and Pärnu Counties are therefore considered
as national designated spatial plans.
According to the Planning Act § 27 subsection 1, the aim of a national designated spatial plan is to erect a construction work which has a
significant spatial impact and whose chosen location or whose functioning elicits significant national or international interest. Therefore, the
Railway Line has significant national and international interest, which means that the safety of the Railway Line has to be prioritized over
other construction work.
Also, Building Code § 42 subsection 7 point 1 obligates the competent building authority to ask for approval from the institution in whom the
law vests competencies that are related to the subject matter of the application for building permit. According to the explanatory memorandum
of the Building Code, the building of Utilities and railways is in the competence of the TRA and therefore the competent authority must ask
for the TRA’s approval. In turn, the TRA is within the area of government of the Ministry. Since the county-wide spatial plans explanatory
memorandum point 3.3.1 refer to the Ministry regarding building in the Railway Line Corridor, it must be understood that the Ministry’s opinion
as stipulated must be considered as an approval according to the Building Code § 42 subsection 7 point 1. In other words: the opinion of the
Ministry is to be considered as a binding approval.
According to the Building Code § 42 subsection 9, if the institution whose approval (or opinion) is requested has not within ten days from
receiving the proposal of the building permit refused to give the approval or opinion or applied for an extension of the time-limit, the proposal
of the building permit is deemed to have been tacitly approved by the institution or the person or institution is deemed to have declined to
express an opinion regarding the proposal, unless otherwise provided by law. Therefore, if the Ministry or the Client acting on the basis of the
delegation agreement concluded with the Ministry wishes to express non-approval to the planned building the Ministry or the Client must
inform the competent authority of its position within 10 days of the receipt of the relevant documents.
For example: Company A wishes to build a pipeline in the Railway Line Corridor in Tallinn. The local authority in Tallinn begins the building
permit proceedings and asks for the approval of the Ministry. The Ministry forwards the request with the design documents to the Client (as
explained in part 3.3 of the Report). The Client notices that Company A wishes to build the pipeline 3 meters below surface. In order to ensure
the safety of the railway, the Client wants the pipeline to be 10 meters below surface and maybe set other conditions as well. The Client will
then send conditional approval to the local authority in Tallinn which basically states that the Client (on behalf of the Ministry) gives its
approval to building the pipeline, if the design meets the requirements set by the Client. If Company A refuses to change the design plan
accordingly, the local authority in Tallinn is obligated to refuse the permit since the approval/non-approval of the Ministry is binding on the
local authority.
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The rights of According to the Building Code Annex 1, the construction of most utilities in Estonia requires a building permit. Others require just a building
the land notice. For example, a sewage treatment unit with a capacity below 5 m 3 per 24-hour day requires a building notice and building design
owner documentation for construction but not a building permit.
(situation
after acquiring It shall be noted that the Estonian spatial plans are rather general regarding restrictions for the land use in the Railway Line Corridor and only
the land) stipulate that (i) the area must be kept free from buildings and (ii) if a person was to apply for a building permit or submit a building permit,
the building authority (TRA or local government) will ask for the Ministry’s opinion (interpreted in this Report as an approval in the meaning
of the Building Code). It is our understanding that it is not impossible that there might be some Utilities or constructions that relate to the
Utilities that the Client wishes to set the conditions to but which do not require a building permit/submission of building notice at all. However,
if this is the case, it is not possible to set the terms to these. Also, we believe that it is rather unlikely that there are many such structures
which would impose a danger to the Railway Line but do not require a permit or a notice. Most Utilities need the approval of a building
authority – please see Annex 1 of the Building Code for a list of these: https://www.riigiteataja.ee/tolkelisa/5030/7201/8002/1.pdf#.
The difference between building permits and notices is that with building permits, there is usually a proceeding where the competent authority
either gives a permit or declines. Building notices are given to the competent authority to notify them of building work 10 days prior to
commencement of the work.
According to § 42 subsection 6 of the Building Code, if the application for a building permit is not submitted by the owner of the registered
immovable named in the application, the competent authority invites that owner to join in the proceedings and, if necessary, also invites the
owners of the adjacent registered immovables.
Building Code § 36 subsection 5 specifies that where needed, the competent authority carries out a verification of whether, in relation to the
construction work or building work stated in the building notice, it is necessary to involve the owner of the registered immovable or the owners
of adjacent registered immovables (p 4). If the competent authority decides to involve the owner or the neighbour, the rules established in
relation to building permits are to be observed according to subsection 6 of the same paragraph. The situation is the same, if the competent
authority decides to involve another administrative organ (in this case, the Ministry).
Therefore, it is obligatory to include the owner of the property in building permit proceedings. When submitting a building notice, the competent
authority has the discretion to decide whether or not to include the owner. However, building notices are usually required mostly in cases
where the utility is meant to be used by a single property or to connect the property to another utility and are therefore usually submitted by
the owner of the property.
Also, even though the Building Code doesn’t mention it specifically (as it was stipulated in the previous Building Act), construction work on a
property is usually not allowed without the consent of the owner of the property. However, there are certain deviations from this rule, especially
for utilities.
According to the LOPA § 158 and § 1581, the owner of a property is required to tolerate:
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1) utility networks and utility works (heating, water supply or sewerage systems, electronic communications or power networks, weak current
installations, gaseous fuel installations, electrical installations or pressure assemblies and construction works necessary for servicing
thereof) to be built on the owner's immovable on the ground, in the earth and in the airspace if these are necessary for the intended use
or management of other immovables, the building thereof is not possible without using the immovable or the building thereof at another
location would cause excessive expense.
2) utility networks or utility works on the immovable of the owner and permit the building thereof on the immovable if the utility networks
or utility works are required in the public interest and there is no other technically and economically more expedient possibility to connect
to utility networks or utility works the consumption site of a person who wishes to connect to the utility networks or utility works or to
develop the utility networks or utility works.
In the case provided for in LOPA § 158 subsection 1, the owner of the immovable may demand from the owner of the other immovable
encumbering of the immovable with a real servitude.
In the case provided for in LOPA § 1581 subsection 1, compulsory possession may be established. However, LOPA § 158 1 subsection 2 states
that a person shall not be subject to the obligation to tolerate, if the restriction arising from the utility networks or utility works to the owner
of the immovable is significantly greater than the public interest in the utility networks or utility works or the interest of the person who wishes
to connect to the utility network in connecting to the utility network and there is a possibility of building the utility network or utility works so
that the owner of another immovable is not placed in an equivalent or worse situation.
Therefore, even if the Beneficiaries or the states become owners of the properties in the Railway Line Corridor, it is not always possible for
the property owner to forbid the construction of Utilities altogether if the owner of another immovable has to use the property to build utilities
or if the utilities are needed in the public interest. Due to this, it is important for the Client to have the right to issue UR to third-parties even
after the state becomes the owner of the land.
However, it is stated in the county-wide spatial plans explanatory memorandum point 3.3.2 that whilst building the Railway Line, under the
permission of the land owner or possessor, it is permitted to store building materials, move construction machines and use private roads. This
would insinuate that during the building of the Railway Line, the construction is not permitted.
Requirements According to the county-wide spatial plans explanatory memorandum point 3.3.3, after the Railway Line is built, the protection zone
set by the surrounding the Railway Line will be regulated by the Building Code. According to the Building Code, the protection zone of a railway includes
protection the ground underneath the railway and extends up to 30 metres from the centre of the railway track or from the centre of the outermost
zone railway track in the case of multitrack railways and railway stations. In the protection zone of a railway, it is prohibited to endanger rail traffic
(situation and to obstruct visibility on the railway.
after the
Railway Line
has been
built)
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The owner of the registered immovable, where the protection zone is located, is obligated to tolerate the presence of a construction work
belonging to another and within which the use of the registered immovable and operations on the registered immovable are restricted for the
purposes of safety and of ensuring the functionality of the construction work.
Therefore, due to the protection zone, it is possible to restrict construction after the Railway Line is built, even in cases where as a land owner,
the state would not be able to stop others from constructing.
Conclusion In conclusion, before and after the state acquires the land needed for the Railway Line and before building the Railway Line, it is not possible
to restrict construction of Utilities in the Railway Line Corridor completely since the county-wide spatial plans state the possibility to build in
the Railway Line Corridor and the LOPA § 158 and § 1581 obligate land owners to tolerate the building of Utilities on their property to an
extent. However, pursuant to the county-wide spatial plans explanatory memorandum point 3.3.1, it is required to ask for the Ministry’s
opinion which shall be interpreted as the Ministry’s approval as stipulated in the Building Code and this could give the opportunity to set
binding rules to third persons who wish to construct Utilities in the Railway Line Corridor.
The “opinion” as stated in the county-wide spatial plans explanatory memorandum is not the same as an opinion mentioned in the Building
Code, because in order to achieve the aim of the county-wide spatial plan and ensure the construction of the Railway Line, which has a
significant national and international importance, the Ministry has to be able to set binding conditions. Therefore, it is grounded to conclude
that the word “opinion” must be interpreted as an approval as stipulated in the Building Code.
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3.2. Legal regulation for technical requirements of the UR
Legal In Estonia, the Building Code is very general when it comes to specific requirements. It sets very general principles and principal requirements
regulation for building work. According to the Building Code, construction works must be designed, built and maintained according to good practice (§7),
construction works, building work, the use of construction works and any other operations related to building work must be safe and
construction works, building work, the use of construction works and any other operations related to building work are safe if they do not
pose a danger to humans, property or the environment (§ 8), they must be as environmentally sound as possible (§ 9) and the principle of
professionalism must be followed in all activities (§ 10).
Building work must be carried out according to building design documentation and in conformity with the requirements for construction works
and the requirements for building work (§ 12 subsection 1). The minister responsible for the area may make regulations to establish
requirements for building work (§ 12 subsection 5) or specify the requirements for construction works (§ 11 subsection 4).
Next to the Building Code, there are other laws that regulate specific areas regarding building but usually these don’t set any specific
parameters either. Mostly, the requirements for building are stipulated in regulations given by ministers (see point 5.2 of this Report) under
the Building Code § 12 subsection 5, § 11 subsection 4 and relevant paragraphs in specific laws that give ministers or the government the
right to set more specific requirements for building or construction works.
Since the Client wishes to regulate the horizontal and vertical clearances between the railway tracks and railway infrastructure objects and
different Utilities, it is important to note that these clearances are mostly set in EVS standards which we have not reviewed and also in
regulations given by ministers or the government.
As in Latvia, EVS are usually not mandatory in Estonia. There has been some confusion in court practice as to what the EVS actually is and
where it belongs in our legal hierarchy. It is usually perceived as being part of good practice as stipulated in § 7 of the Building Code. At the
same time, these standards are mostly considered non-mandatory unless specifically said so in law. This means that even if the standard is
referenced in law, it is not mandatory unless the law stipulates, for example, that “when building this line, EVS XXX must be followed.” This
means that in most cases, EVS is not binding and therefore it is possible to deviate from the rules set in these standards, especially if the
Client wishes to set higher standards than those stipulated in EVS.
Possibility to The regulations we have reviewed mostly set the minimal clearances between the Utilities and between the Utilities and other objects, also
set stricter vertical clearances. In some situations, laws may stipulate maximum clearances (see 5.2). It is our opinion that stricter regulations for the
regulations clearances between the Utilities and the railway infrastructure objects may be determined by the Ministry in the technical requirements issued
for the construction of Utilities in the Railway Line Corridor, if the clearances are stated as minimal requirements.
As mentioned in point 3.1 of this Report, the Ministry will issue technical requirements as part of their approval or as conditions for their
approval (if the building design documents don’t meet the Ministry’s requirements, they don’t issue their approval). These requirements are
issued to the competent authority due to the fact that the giving of approvals and opinions is between administrative organs, these are not
issued by the Ministry to the person directly. The competent authority (local government or TRA) will then communicate with the person
requesting the building permit or submitting the building notice and if they do not change their building design documents accordingly, the
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competent authority has to deny their request for a permit because they will not get the Ministry’s approval. However, according to Estonian
case-law, the non-approval must be based on law.
Therefore, if the legislation sets minimal requirements, the technical requirements could set higher requirements in order to ensure the safety
of the Railway Line, public security, other properties, human life and the environment. This could be done by referencing § 8 of the Building
Code (principle of safety) and § 12 subsection 2 which says that the construction work that is being built and the building work, must conform
to the restrictions and spatial plans. Since the county-wide spatial plans set the general principle that the area must be kept free from
constructions, one could argue that it is proportional to have higher demands regarding the construction, since even allowing construction in
the Railway Line Corridor is an exception.
Also, even though the protection zone will be formed once the Railway Line has been built, whilst issuing stricter regulations, the Client or
the Ministry could reference the protection zone regulation in Chapter 8 of the Building Code. In the protection zone, it is prohibited to
endanger the construction work or any use of the construction work that follows established procedure (§ 70 subsection 2 point 1) and in the
protection zone of a railway, it is prohibited to endanger rail traffic (§ 73 subsection 2). Even though the regulation regarding the protection
zone is not applicable at this point, these provisions could be used to justify the higher demands because the end-goal is to construct a railway
that is safe and not compromised due to Utilities that are built in a way that could harm the integrity of the railway.
As mentioned in Latvia’s point 4.2 of this Report, in case of a court dispute, the Ministry/Client will have to be ready to provide reasonable
justification for the stricter requirements. This justification should also be included in the technical requirements issued by the Ministry.
As an additional suggestion, we believe stricter rules could be enforced if the UR would be somehow incorporated into Estonian legislation, by
the Ministry’s regulation for example. As mentioned, it is possible for ministers to give out regulations under the Building Code. The Ministry
could give out a regulation with stricter demands regarding Utilities for the Railway Line and annex the UR. This could give the Ministry or the
Client the opportunity to reference this regulation whilst issuing technical conditions on a case-by-case basis.
Conclusion The regulations we reviewed mostly set the minimal requirements for clearances which means that if well grounded, it would be possible to
deviate from the requirements set in regulations and set stricter requirements with the Ministry’s approval/non-approval.
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3.3. Interaction procedures and documents to be issued
Possible We have formed our opinion based on the information we have, which is that the right to give opinions which must be considered as approvals
involvement according to the county-wide spatial plans explanatory memorandum point 3.3.1 has been given to the Ministry.
forms of the
As previously explained, the county-wide spatial plans oblige local governments and the TRA to ask for the opinion of the Ministry and not the
Client in
Client. Since it is the Client’s wish to be able to give technical conditions, we have looked at different possibilities in this situation.
issuing the
technical We have identified the following possibilities based on the Client’s request:
requirements
in the Railway 1) Change of legislation in a way that directly gives the Client the right to issue approvals and set technical requirements;
Line Corridor 2) The Ministry delegates the right to give approvals to the Client with a delegation agreement and the competent authorities will ask for the
Client’s approval directly;
3) The Ministry forwards the request for approval to the Client and the Client issues the technical requirements with the approval/non-
approval directly to the competent authority on behalf of the Ministry based on a co-operation agreement.
Change of Since the Client sees this as an optional alternative, we will not go into much detail but shortly explain our suggestions.
legislation
The Inter-Governmental Agreement was ratified with a legal act by the Estonian Parliament (Riigikogu) on 19.06.2017. Article 5 of the
(option 1)
agreement states that the Client is the project coordinator. Our plan was to make amendments to this legal act or add implementing provisions
that would require competent authorities to ask for the approval of the Client whilst planning to build any construction in the Railway Line
Corridor that requires a building design document, building notice or building permit. Also, as mentioned in point 3.2 of the Report, we would
have suggested that the Ministry could give out a regulation under the Building Code with stricter demands regarding Utilities for the Railway
Line and annex the UR which the Client could then reference while giving their approvals or non-approvals and setting the technical conditions.
The reason we wanted to suggest the changes in legislation was to specify the terms of the Inter-Governmental Agreement and the CSA in
order to ensure that it is clear to outside parties that the Client has certain rights according to these agreements. However, we understand
that changing legislation takes a lot of time and would not be the best option for the Client which is why we have proposed other, non-
legislative options which we believe will give the Client the opportunity to be directly involved in giving legally binding conditions to third
parties without having to change legislation. As we will explain in option 3, the agreement between the Ministry and the Client will be sent to
competent building authorities as well and thus setting these terms with legislation will not be necessary.
The Client as We considered the possibility to replace the Ministry with the Client in the issuance process of the approval and technical requirements to
the direct competent authorities. This could be possible via a delegation agreement.
issuer based
As explained in point 4.3 of the Latvian Report, the Inter-Governmental Agreement and the CSA shall be interpreted in a way that the Ministry
on a
has actually authorized the Client to determine the requirements for construction of the Utilities in the Railway Line Corridor.
delegation
agreement Differently from the Inter-Governmental Agreement however, the CSA has not been ratified by the Estonian parliament, which makes the
(option 2) validity of the authorization given in the CSA problematic, taking into account the way delegation of public duties has been regulated in
Estonia. Also, since the wording of these agreements is quite general, we believe an additional agreement to set more exact terms regarding
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the issuing of UR is necessary. Therefore, the CSA is both vague and also not ratified as a legal act and could therefore be in violation with
the Building Code.
Disregarding the fact that the CSA has not been ratified, we believe it could be argued that with the CSA, the Ministry has given the Client
the right to give approvals since it is the Client’s duty to procure the DTD. Thus, we considered the possibility for the Client and the Ministry
to conclude a delegation agreement that would give the Client the right to communicate with competent authorities directly and give out
approvals or non-approvals with technical conditions on the Client’s behalf.
The problem with this approach is that According to the ACA, this type of power delegation can’t be done without following public procurement
procedure.
According to ACA § 3 subsection 1, a local government, another legal person in public law, a legal person in private law or a natural person
may be authorised to perform an administrative duty of the state by law, by an administrative act issued on the basis of law or by a contract
under public law entered into under the conditions and pursuant to the procedure provided for in this Act on the basis of law.
ACA § 13 subsection 1 states that the entry into a contract under public law with a person to grant the person authority to perform an
administrative duty shall be based on the conditions for awarding a public service contract and the procedure for organisation of public
procurement provided for in the Public Procurement Act. Therefore, it is in our opinion not possible to authorize the Client to perform this
public duty instead of the Ministry without following the procedure of public procurement.
Thus, we believe it would legally be a safer option to have the requests for approvals go through the Ministry, who will forward these to the
Client who will then issue the technical conditions on the Ministry’s behalf to the competent authorities which we will explain in the next
section.
The Client as Our proposal is to have the Client be the issuer of these conditions but the request will go through the Ministry and the Client will issue the
the issuer on conditions on the Ministry’s, not the Client’s behalf. In order to do this, the Client and the Ministry will conclude an agreement in Estonia as
behalf of the well, referencing the CSA and explicitly stating the Client’s right to submit approvals on the Ministry’s behalf. The content of the agreement
Ministry based will be that the Ministry is obligated to send all requests to the Client immediately and the Client has the right to give these approvals directly
on a co- to the competent authorities, on behalf of the Ministry. This will be called the co-operation agreement. To avoid confusion among local
operation governments, this agreement will be sent to them as well, also the TRA.
agreement
In this case the competent authorities (local governments and TRA) would submit their approval requests to the Ministry. The competent
(option 3)
authorities will be notified of the fact that they will receive approvals and technical conditions straight from the Client. The Client would then
issue the approval and the technical requirements to the competent authority directly on the Ministry’s behalf. The competent authority will
then pass these on to the third parties who will have to adjust their documentation or they will not get the approval of the Client (the Ministry)
and the competent authority can’t issue a permit or allow the third person to start building work (according to Building Code § 44 point 6,
they must refuse to issue a permit). If the third party adjusts the building design documents according to the technical requirements, the
competent authority may issue the permit.
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We consider that this solution would be the most efficient as it ensures a direct communication between the Client and the competent
authorities when issuing building permits to third parties whilst making sure that the requests go through the Ministry as stipulated in the
county-wide spatial plans explanatory memorandum.
Building The Client also wanted to know, what are the possibilities regarding building permits which have already been issued but where building hasn’t
permits started yet.
already issued
According to Building Code § 46 subsection 2, the competent authority may revoke the building permit if:
1) the holder of the building permit or the owner of the registered immovable requests the corresponding revocation, except where other
persons have a legitimate interest in the validity of the building permit, or
2) the construction work or building work does not conform to the building design documentation, the detailed spatial plan, the design
specifications, a national or local special spatial plan, or the requirements for construction works or for building work.
Therefore, once Estonian state acquires the land, the owner has the right to ask for a revocation. Also, it is possible to argue that the building
work does not conform to the county-wide spatial plan (if, when issuing the permits, the Ministry was not consulted for example) or that the
building work or construction interferes with the railway as it has been set in the county-wide spatial plans.
Terms for The county-wide spatial plans stipulate that the local governments must adhere to the dates set in the Building Code when asking for opinions.
issuing the
According to the Building Code § 42 subsection 9, if the institution whose approval (or opinion) is requested has not within ten days from
requirements
receiving the proposal of the building permit refused to give the approval or opinion or applied for an extension of the time-limit, the proposal
and validity
of the building permit is deemed to have been tacitly approved by the institution or the person or institution is deemed to have declined to
period of
express an opinion regarding the proposal, unless otherwise provided by law.
these
requirements Therefore, the Client should give their approval and necessary conditions within 10 days after receiving the request from the competent
authority. Since these requests will be sent to the Ministry, the Ministry must forward these to the Client immediately. It is also possible to
ask for an extension, however the law doesn’t state the length of the extension. Since the time-limit in Latvia is 20 days, we believe it would
be reasonable to ask for an extra 10-day extension. However, it must be noted that it is important to give the approval or non-approval within
this timeframe or ask for an extension because if the Ministry or the Client doesn’t answer to the request, it will be considered approved, as
previously mentioned.
Building Code § 42 subsection 5 states that the competent authority issues the building permit within 30 days of the submission date of the
application. However, this doesn’t include the time period where the third party has to modify their application (building design
documentation).
There is no time-limit for the validity period of the approval (nor the conditions given with the approval) according to the Building Code.
However, a building permit is valid for five years and commencement of work according to a building notice must be started within 2 years.
Therefore, it is not possible or necessary to set a term for the validity of the approval since it is not a final administrative act but a measure
within an administrative proceeding. Considering the above, it is also our opinion that it is not necessary to set disclaimers in the conditions
due to the fact that the administrative act (building permit for example) will be issued by the competent authority.
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Involvement According to Building Code § 130, the right to exercise state supervision is given to local authorities and the TRA who have the right to verify
in the further whether construction works or the building of construction works conforms to the requirements. The county-wide spatial plans don’t give the
construction Ministry nor the Client the right to do so.
process
Therefore, it is not possible for the Client to be further directly involved in the construction process according to legal acts. However, since
the building permit will only be given by the local governments or TRA as long as the third party changes the design documentation based on
the technical conditions (otherwise the design will not get the Client’s/Ministry’s approval), this will become part of the building permit. If the
local government or TRA discover that the third party has not built according to the requirements, the third party can be fined and it is possible
to have the construction demolished.
According to Building Code § 132 subsection 3, law enforcement agency decides on the demolition of the construction work above all if:
1) the construction work does not conform to the requirements for construction works, and the non-conformity entails a significant or
heightened danger;
2) the unlawful building of the construction work has resulted in a permanent negative impact on the owner of the registered immovable or
the owners of the adjacent registered immovable, and that impact is excessively burdensome and it is not possible to sufficiently avoid
or alleviate it.
The Client could also set a condition in the approval letter that the third party has to allow the Client to do on-site inspections and make sure
the construction has been conducted according to the building design document. The Client is not able to fine the third party or have the
construction demolished, however they may make a suggestion to the law enforcement agency to do so as explained above, if the grounds
for demolition stipulated in Building Code § 132 subsection 3 or the building violations stipulated in §§ 134-140 become known to the Client.
Documents In order to enforce the UR, the following documents need to be prepared:
that need to
1) a co-operation agreement between the Client and the Ministry by which the Ministry authorizes the Client to give approvals along with
be prepared
technical conditions on the Ministry’s behalf as established in the county-wide spatial plans explanatory memorandum point 3.3.1;
2) a letter to all relevant competent authorities (local governments in the three counties, TRA) inviting them to take notice of the county-
wide spatial plans explanatory memorandum point 3.3.1 and the co-operation agreement upon handling requests for permits and building
notices in the Railway Line Corridor;
3) technical conditions under county-wide spatial plans explanatory memorandum point 3.3.1 on the Ministry’s behalf to relevant competent
authorities.
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Section 4.
Regulation in Latvia
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Summary of Section 4
Is it possible to enforce the UR in a manner that is binding to Is it possible to enforce the UR in a manner that is binding to
third parties while the Client, the Implementing Bodies and the third parties with stricter technical requirements than currently
Beneficiaries are not the owners of the land under the Railway stated in the laws and regulations?
Line?
It is possible to enforce the UR in a manner that is binding to third parties on a The Latvian Construction Regulations determine only minimal clearances
case-by-case basis while the Client, the Implementing Bodies and the between the Utilities and between the Utilities and other objects (including
Beneficiaries are not the owners of the land under the Railway Line. Each railway tracks). The laws and case-law are silent as to whether the issuer of
allowed construction initiative within the ONI Territory (except the state or the technical regulations can determine stricter regulations by requesting
municipal transport infrastructure of public use) is to be coordinated with the greater clearances between the Utilities and other objects. We consider that
Ministry of Transport and the Ministry of Transport would issue requirements
in case of a substantiated necessity stricter regulations for the clearances
(conditions) for the construction of engineering structures and engineering
networks (i.e., Utilities) within the ONI Territory. The construction initiator has between the Utilities and the Railway Line infrastructure objects may be
to comply with the requirements issued by the Ministry of Transport. If the UR determined in the binding requirements issued by the competent institution
are incorporated in the requirements for construction issued by the Ministry of to third parties for the construction of the Utilities in the ONI Territory. When
Transport (or by the Client on behalf of the Ministry of Transport) for the determining the stricter requirements, the competent institution (i.e., the
construction within the ONI Territory, the UR will become binding to the Client) must have reasonable justification for the need for such stricter
respective third party who intends to build the Utilities in the ONI Territory. requirements.
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How shall the Client interact with the third parties, Beneficiaries, What documents shall be issued, to whom and when in order
Implementing Bodies and other institutions to actually enforce to enforce the UR?
the UR?
In order to enforce the UR, several options (for more detail please see In order to enforce the UR, the following documents shall be issued:
Section 4.3 below) of action were analysed and the following one found to 1) Preparation step 1: provisions included in the delegation agreement to
be the most appropriate, clear and less risk involving. be concluded between the Client and the Ministry of Transport regarding
Accordingly, the following actions should be taken by the Client: the fulfilment of the administrative tasks towards third parties
3) further negotiations with the Ministry of Transport and incorporation of established in Regulations 91 – without delay;
the Client’s rights and duties to perform the tasks established in 2) Preparation step 2: a letter to all relevant construction authorities
Regulations 91 (Clause 7, in particular, but other clauses, like 6, 8 and inviting to take notice of Regulations 91 and the concluded delegation
10 might also be included) towards the third parties in the delegation agreement when reviewing construction initiatives in the ONI Territory
agreement; – without delay;
4) a letter to all relevant (inter alia – municipal) construction authorities 3) Implementation: issuance (on a case-by-case basis) of technical
with the following main content subjects: (1) invitation to take notice requirements (conditions) under Regulations 91 to the relevant third
of Regulations 91 when reviewing construction initiatives in the ONI parties within 20 days of the receipt of a respective request, review and
Territory, (2) information about the concluded delegation agreement approval of the technical project of the respective Utility, inspection on
and the authorization of the Client to issue the binding requirements site before commissioning of the Utility structure.
under Regulations 91; (3) invitation to inform the Client about other
significant construction initiatives in the territories adjacent to the ONI
Territory;
5) upon the respective specific request from a third party received via the
Ministry of Transport (or directly): issuance of the requirements
(conditions) for the construction in the ONI Territory under Regulations
91 to the third party.
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SECTION 4: REGULATION IN LATVIA
4.1. Binding effect of the UR towards third parties
Requirements Pursuant to the general principle stipulated in the Construction Law (Article 15), a construction permit is issued only if the construction intention
set by the has been agreed with the owner of the land and the owner of the structure in case the construction works are intended in an existing structure,
land owner or the owner of the land has been informed in case it is requested by laws.
(situation
To agree or not to agree to a construction on the land is the land owner’s prerogative (except for specific situations prescribed by laws). Thus,
after
before agreeing to a construction, the land owner may determine the requirements for the particular construction, including horizontal and
acquiring the
vertical clearances between different objects. The clearances set by the land owner may not be smaller than the minimal clearances defined
land)
by Cabinet Regulations, however, they could exceed them.
Additional After the construction of the Railway Line, the requirements set by the Protection Zone Law, Railway Law and Regulations 79 will apply to the
requirements protection zones of the Railway Line. The general principle of the Protection Zone Law states that all legal persons and individuals shall comply
in the with the lawful requirements of the respective object owner. In addition, Article 42(2)c of the Protection Zone Law states that it is prohibited
protection to carry out any construction or ground digging and displacement work without coordination with the railway infrastructure manager. Pursuant
zones of the to Article 17(1) of the Railway Law, legal and natural persons may carry on any type of activity within the railway right of way, only with the
railway (after permission of and under the supervision of the railway infrastructure manager. Article 17(3) of the Railway Law states that any placement,
construction relocation, and renovation of the Utilities in the railway right of way must not diminish the operational quality of the railway infrastructure
of the facilities or traffic safety. Article 7 of Regulations 79 lists the objects the placement of which is allowed in the railway rights of way (electro
Railway Line) transmission lines and objects, access roads and squares, household buildings, other objects if they do not affect the operation of the railway
and the safety of the train movement).
Considering the above, after the Railway Line is constructed, the manager of the Railway Line will be able to determine lawful requirements for
the construction works in the protection zone (railway right of way) of the Railway Line, including horizontal and vertical clearances between
Utilities and the Railway Line infrastructure objects.
Obligation to Agreement with the land owner on a construction in general should be separated from the legal obligation to obtain technical requirements
receive and from certain institutions and comply with them. The existence or non-existence of the land ownership does not directly affect the obligation to
comply with receive technical requirements if such an obligation is provided for in the legislative acts.
technical
Pursuant to Regulations 500 (Article 15), the building authority shall request the initiator of the construction to receive technical and special
requirements
requirements (lat.val. – “tehniskos un īpašos noteikumus”) from the state institutions, if it is stated in the laws and regulations of the relevant
(current
field. If the construction concerns protective zones for exploitation of objects and engineering networks, the technical requirements of the
situation,
owners of the relevant objects and engineering networks should be received for the design.
before the
land is Regulations 500 (Article 13) also state that before filing a submission for intent to construct, the initiator of the construction has the right to
acquired) receive the technical and special requirements of the institutions, if the laws and regulations of the relevant field determine such a necessity
for technical requirements, and also to receive technical requirements for connection (disconnection) or crossing of engineering networks from
the owners of engineering networks.
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SECTION 4: REGULATION IN LATVIA
Regulations 500 (Article 16) state that technical and special requirements of the state and local government institutions should be drawn up
and issued within 20 days of the receipt of the request.
The building authority, upon receipt of the technical project ascertains that a consent of the issuer of technical requirements has been received
for the solutions of the building design approving that all requirements of the technical requirements, and, where necessary, the requirements
for accessibility of the environment and insolation have been complied with (Article 74 of Regulations 500). (Therefore, it is important to keep
the municipal construction authorities informed and reminded of the requirements of the Ministry of Transport necessary for construction within
the ONI Territory.)
Considering the above, under Latvian construction regulations, not only the land owner may determine requirements for construction,
but also state and municipal institutions if provided so by the laws. If the intended object crosses or shall be connected to (or
disconnected from) engineering networks, technical requirements shall also be received from the owners of the engineering networks.
The construction initiator has to comply with the received technical and special requirements. The usual practice is that the issuers of the
technical and special requirements also approve the technical design, confirming that the design complies with the issued requirements. The
building authority is obliged to verify if the issuers of the technical requirements have approved the technical design. Thus, the technical and
special requirements of the public institutions (and the owners of the engineering networks) are binding to third parties (construction initiators).
The current Regulations 91 define conditions for the use of the ONI Territory during the design and construction phases of the Railway Line. Regulations
role of the 91, among others, stipulate the following:
Ministry of
1) only short-term structures (the exploitation term does not exceed 5 years) can be constructed in the ONI Territory. After the
Transport
determined exploitation period, the owner has to demolish the structure at their own cost (Article 4);
2) the use of the territory which has been lawfully commenced may continue, as well as subject to conditions of Article 4 (short-term
use and demolition) the following uses are allowed: (1) agricultural activities; (2) objects for tourism, recreation and sports; (3)
transport infrastructure objects; (4) vegetable gardens (Article 5);
3) the allowed construction initiatives, as well as the exploitation period of the structures shall be coordinated with the Ministry of
Transport (Article 6);
4) in order to develop a land use planning project or in order to construct any engineering structures or engineering networks (i.e., the
Utilities) in the ONI Territory, the conditions (lat.val. – “nosacījumi”) from the Ministry of Transport shall be received (Article 7).
Considering the above, any allowed construction initiative in the ONI Territory shall be coordinated with the Ministry of Transport, currently the
Ministry of Transport shall determine the exploitation period of the structures and issue the conditions for the Utilities in the ONI
Territory.
Although no uniform terminology is used in Regulations 500 and Regulations 91, we have reasonable grounds to believe that the term
“conditions” in Regulations 91 is to be interpreted as “technical requirements” under Regulation 500. Therefore, further in this
Report we refer to the conditions of the Ministry of Transport under Regulations 91 as “technical requirements” or “requirements” in the meaning
of the construction process under Regulations 500.
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SECTION 4: REGULATION IN LATVIA
Exception Regulations 91 are not applied to territories where the state or municipal transport infrastructure of public use is located. As indicated in the
related to explanatory note of Regulations 91, as the ONI Territory is crossed by many state and municipal transport objects (streets, roads, railway), the
public development of these objects may not be restricted. Thus, the Ministry of Transport will not be directly involved under Regulations 91 in
transport construction/reconstruction projects of state or municipal transport infrastructure of public use. Therefore, coordination between the Client,
infrastructure municipalities and state institutions responsible for transport infrastructure of public use in the ONI Territory should be ensured
in order to guarantee that the interests of the Project are respected in the development of the transport infrastructure of public
use in the ONI Territory.
Taking into account the principles laid down in the Inter-Governmental Agreement, we would suggest that the letters to be sent to the
construction authorities of the municipalities whose territory is crossed by the Railway Line, draw attention to the need to coordinate, as far as
possible, the development of public use transport infrastructure with the Client, taking into account the objectives of the Project and the
international nature of the Project.
Objects It shall be noted that some structures are exempted from municipal permission procedures and may be constructed and placed without
which do not submission of any documents to the construction authority. However, pursuant to the special construction regulations, these are rather
require insignificant objects (benches, open terraces, child playing devices, sports equipment, separate lanterns and lighting bodies, flag masts with a
construction height of up to 12 m, garden fireplaces, street indication poles, road marks, free-standing waste tanks, fence and first group sports areas
permissions (without engineering networks) outside the public outdoor and other similar objects) and usually do not include permanent Utilities.
Conclusion Our conclusion is that it is possible to enforce the UR in a manner that is binding to third parties on a case-by-case basis while the Client, the
Implementing Bodies and the Beneficiaries are not the owners of the land under the Railway Line. According to the current legislation, each
allowed construction initiative within the ONI Territory (except the state or municipal transport infrastructure of public use) should be coordinated
with the Ministry of Transport and the Ministry of Transport would issue the requirements for the construction of the Utilities in the ONI Territory.
The construction initiator has to comply with the requirements issued by the Ministry of Transport. If the UR are incorporated in the requirements
for construction issued by the Ministry of Transport for construction in the ONI Territory, the UR will become binding to the respective third
party who intends to build the Utilities in the ONI Territory.
Further in Section 3.3 of this Report additional mechanisms are considered for the Client to step in the shoes of the Ministry of Transport for
issuing the above-mentioned requirements.
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SECTION 4: REGULATION IN LATVIA
4.2. Legal regulation for the technical requirements of the UR
Legal It is our understanding that the Client would like to regulate the horizontal and vertical clearances between the railway tracks and railway
regulations infrastructure objects and different Utilities which may be placed near the Railway Line and related infrastructure objects or which may cross
the Railway Line. The UR will include the technical requirements for the horizontal and vertical clearances when placing Utilities near or across
the Railway Line. The UR will be binding to the Client’s contracting partners (used for designing the Utilities necessary for the operation of the
Railway Line) and should become binding to the third parties who intend to construct Utilities near or across the Railway Line.
The Construction Law contains the most important construction rules for the construction process in Latvia. More detailed construction rules
are contained in Regulations 500 and in other Regulations approved by the Cabinet regarding each type of the structure (buildings, roads,
railway, other engineering structures etc.). However, it is mainly the procedural rules that are established by the mentioned Cabinet
Regulations. Technical requirements are usually included in the Latvian Construction Regulations (in Latvian – Latvijas būvnormatīvi)
also approved by the Cabinet in the form of Cabinet Regulations. There are a number of Latvian Construction Regulations (currently there are
34 Latvian Construction Regulations in force), however, only some of these relate to the Utilities.
Latvian Construction Regulations LBN 008-14 “Layout of engineering networks”, which are issued as Cabinet Regulations 574, determine
the minimal horizontal and vertical clearances between different Utilities and other objects. Regulations 574 shall be taken into
account (1) in drawing up technical requirements and special regulations for construction projects, as well as in issuing a construction permit
with the conditions contained therein; (2) in developing construction projects and technical schemes; (3) in carrying out the construction and
installation of the Utilities.
We have reviewed also other Latvian Construction Regulations determining technical requirements for the design and construction of the
Utilities (Regulations No.328, No.335, No.341, No.329, No.327 and No.326 – please see sub-section 6.1 for details). Some of the mentioned
Regulations (for example, No. 326 and No.341) contain additional requirements for minimal clearances in respect of the railway objects, and
the others refer to Regulations 574 directly or indirectly.
Additional technical requirements for structures are set by the Latvian State Standards (LVS). The application of the LVS is on a voluntary
basis unless the Cabinet Regulations determine the application thereof as mandatory. Please note that for the purposes of this Report, we
have not reviewed the LVS possibly regulating the clearances between the Utilities and the Utilities and other objects.
It shall be also noted that in respect of design and construction of electric lines Latvian Electric Energy Standards exist
(http://www.lekenergo.lv/) approved by the Latvian Association of Electric Energy Designers and Constructors. Some of the standards contain
requirements for the minimal vertical and horizontal clearances between the electric lines and the railway infrastructure objects (for example,
the standard LEK 015, Section 13.5, http://www.lekenergo.lv/sites/default/files/lek_015.pdf). The legal status of the Latvian Electric Energy
Standards is unclear as they are not mentioned in the laws or Cabinet Regulations but are widely used in practice by the engineers of electric
energy objects. We have not found that the application of these standards would be mandatory.
Pursuant to Article 137 of Regulations 240, the local municipalities may determine the clearances between structures in the Spatial Plans.
However, as the clearances between the Utilities and between the Utilities and other objects are already regulated by Regulations 574, the
municipalities tend to determine only the distances between different buildings in their Spatial Plans. We have examined the Spatial Plans of
the relevant 15 municipalities at general level (no detailed review was conducted) and we have found that the majority of the municipalities
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SECTION 4: REGULATION IN LATVIA
has not determined the clearances between the Utilities and between the Utilities and other objects. We have found that Ropazu district
municipality has determined some horizontal clearances between Utilities and foundations of buildings and structures in Article 4.24.6 of the
local Regulations on the Construction and Use of the Territory (adopted in 2006). Section 6.13.4 of Olaines district Regulations on the
Construction and Use of the Territory (adopted in 2008) contains a reference to Cabinet Regulations regarding clearances between the Utilities
that are not in force any more. Considering the above, we conclude that in general the municipalities have acknowledged that the clearances
between the Utilities and the Utilities and other objects is the competence of the Cabinet of Ministers. In any case, if a conflict occurred
between the Spatial Plans and the Cabinet Regulations in respect of the distances between the Utilities and other objects, the Cabinet
Regulations prevailed as acts of higher legal force.
No regulation It shall be noted that in Regulations 574 only the clearances between the Utilities and 1520 mm and 750 mm gauge railway tracks are
for clearances regulated. However, there are reasonable grounds to believe that, if necessary, the same minimal clearances may be used in order to
between the determine the technical requirements for the clearances between the Utilities and the Railway Line. Pursuant to the Administrative Procedure
Utilities and Law (Article 17(2)), if an institution finds a gap in the system of law, it may rectify it by using the method of analogy, that is, by a systematic
European analysis of the legal regulation of similar cases and by applying the principles of law determined as a result of this analysis to the particular
gauge railway case. Thus, the clearances indicated in Regulations 574 may be used in order to determine and set the minimal clearances in the UR.
On the other hand, the fact that only the clearances between the Utilities and 1520 mm and 750 mm gauge railway tracks are regulated, may
be used as substantiation for the clearances in respect of the European standard gauge railway to be even greater if the necessary reasonable
justification exists.
The Client should also consider to commence communication with the Ministry of Economy to discuss the necessity for amendments to the
Regulations 574 in relation to the clearances between the Utilities and the European gauge (1435 mm) railway with the aim to avoid disputes
at the later stages of the implementation of the Project.
Possibility to Regulations 574 and other Latvian Construction Regulations determine only minimal clearances between the Utilities and between the Utilities
set stricter and other objects (including 1520 mm and 750 mm gauge railway tracks). The laws and case-law are silent as to whether the issuer of the
regulations technical requirements can determine stricter requirements by requesting greater clearances between the Utilities and other objects.
We have informally contacted the Ministry of Economy and their first view was that the technical requirements shall comply with all applicable
regulations and therefore the issuer of technical requirements would not be entitled to determine stricter requirements than required by
Cabinet Regulations. In the opinion of the Ministry of Economy, Regulations 574 protect also the interests of the Utility developers (managers)
and therefore Regulations 574 should be followed by the issuers of technical requirements - stricter requirements could be determined only
if mutually agreed with the respective third party. However, the Ministry of Economy did not exclude that, if required to ensure the essential
requirements for a structure (as defined in Article 9 of the Construction Law), deviations from the minimal clearances by requesting greater
clearances would be substantiated. A general advice was given to consult with the industry organizations and the Ministry of Transport in
order to identify whether more stringent requirements can be set by means of interpretation of the existing framework or whether legislative
amendments are necessary.
We are of the opinion that in case of a substantiated necessity, stricter regulations for the clearances between the Utilities and the
Railway Line infrastructure objects may be determined by the competent institution with the technical requirements issued for the
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SECTION 4: REGULATION IN LATVIA
construction of the Utilities in the ONI Territory. However, the competent institution, if requested (e.g., in case of a dispute), should
be able to provide reasonable justification for the necessity to determine stricter regulations in respect of the clearances to be respected
by third parties. In any case, the competent institution could not require clearances between the Utilities and between the Utilities and Railway
Line objects that are unreasonable or for which any justification is missing.
Reasonable Neither the laws nor the available case-law contain any indication or guidance of whether and what kind of justification should be available to
justification impose stricter requirements in respect of the clearances between the Utilities and between the Utilities and other railway infrastructure
for stricter objects.
requirements
We consider that the following considerations could be taken into account when determining the existence of reasonable justification for
stricter technical requirements for construction of the Utilities in the ONI Territory:
1) Article 3 of Regulations 574 pursuant to which the location of engineering networks (the Utilities) in the territory shall be planned in such
a way as to comply with the requirements of the Construction Law, as well as to ensure the quality of the environment, the rational use
of the territory, energy and natural resources and the availability of the environment.
2) Article 12 of Regulations 574 pursuant to which it is prohibited to place all types of Utilities in the railway substructure (“dzelzceļa zemes
klātnē”), except for technological communications of the railway.
3) Essential requirements for a structure (in this case – the Railway Line) in accordance with Article 9 of the Construction Law - mechanical
strength and stability, fire safety, environmental protection and hygiene, including harmlessness, safety of use and accessibility of the
environment, acoustics (noise protection), energy efficiency, sustainable use of natural resources.
4) Article 17(3) of the Railway Law pursuant to which any placement, relocation, and renovation of the Utilities in the railway right of way
must not diminish the operational quality of the railway infrastructure facilities or traffic safety.
5) Impacts of vibration, maintenance requirements, possible consequences of an accident (damage or collapse of the respective Utility);
6) Any available international best practice for placement of the Utilities in the railway right of way of European gauge railway.
7) Any available technical expertise and expert’s suggestions for the horizontal and vertical clearances of the Utilities to be placed in the ONI
Territory.
8) The regulatory framework contained in the Protection Zone Law as a guideline, which, among others, states that it is prohibited in the
protection zones along railroads: (1) to perform activities that will result in the visibility of the railroad being decreased or covering with
snow being increased; (2) to perform activities as a result of which the hydrological conditions in the railroad protection zone may
deteriorate or the functioning of the amelioration systems and structures of the protection zone and adjacent to it or crossing it may be
disturbed; (3) to perform any building or ground digging and displacement works without co-ordination with the manager of the railway
infrastructure; (4) to block service roads and accesses to the servicing objects of the railway. Although the protection zone regulation is
directly applicable after the object (railroads) has been constructed, it may as well assist in finding justification for determining stricter
requirements for the clearances in the designing stage of the Railway Line.
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SECTION 4: REGULATION IN LATVIA
In addition, please note that we did not succeed in finding any court judgements where a dispute over the clearances between the Utilities
and between the Utilities and other structures would have been reviewed. Therefore, we conclude that there is currently no sustainable case-
law in Latvia on the issues concerned.
Risks related Although the technical requirements issued by the competent institutions are not final administrative acts within the meaning of the
to disputes Administrative Procedure Law, pursuant to the case-law example (the Supreme Court’s decision of 13 October 2009 in administrative case
No. A42459807, SKA – 624/2009) the technical requirements might be disputed before the administrative courts if substantial addressee’s
rights are infringed. Considering the above, a sufficient justification should be in place for determining stricter requirements for clearances
as, in case of a court dispute, the Ministry of Transport (or the Client) would have to be able to provide reasonable justification for the stricter
requirements.
Consultations The option to consult the industry organizations could be considered to obtain the views of the largest Utility owners and administrators. The
with the NGO “Inženierkomunikāciju turētāju Sadarbības Padome” (Cooperation Council of Utility Administrators) was indicated by the Ministry of
industry Economy as the most prominent NGO to consult with.
organizations
Preparation of amendments to the legislative regulation (Regulations 79 or Regulations 574) in cooperation with the Ministry of Transport and
and legislative
the Ministry of Economy could also be considered to implement the UR in the legislative acts as special requirements for the European gauge
changes
railway and thus avoid the potential disputes over the interpretation of the existing legal framework.
Conclusion The laws and case-law are silent as to whether the issuer of the technical regulations can determine stricter regulations by requesting greater
clearances between the Utilities and other objects. We consider that in case of a substantiated necessity stricter regulations for the clearances
between the Utilities and the Railway Line infrastructure objects may be determined in the binding requirements issued by the competent
institution to third parties for the construction of the Utilities in the ONI Territory. When determining the stricter requirements, the competent
institution (i.e., the Client) must have reasonable justification for the need for such stricter requirements.
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SECTION 4: REGULATION IN LATVIA
4.3. Interaction procedures and documents to be issued
Role of the As indicated in the previous sections of the Report, according to the current provisions, the Ministry of Transport is the competent institution
Ministry of in Latvia which may issue requirements for the construction of the Utilities in the ONI Territory. The competence of the Ministry is established
Transport by the Regulations 91, Article 7 and by the Land Management Law. Pursuant to Article 5(4) of the Land Management Law, in the territories
necessary for the development of technical public infrastructure, in coordination with the institution which has proposed to reserve these
territories, it is allowed to carry out activities that would not make it difficult to implement the intended public infrastructure project. In order
to coordinate the intended activity, the owner, legal possessor or the user of the real estate shall apply to the respective institution informing
about the intended activity. As the Ministry of Transport is the institution which proposed to reserve the territories necessary for the Railway
Line as a result of which Order 467, Order 468 and Regulations 91 were adopted, the Ministry of Transport is appointed by the Land
Management Law and Regulations 91 as the competent institution which currently shall coordinate construction initiatives in
the ONI Territory and issue binding requirements to third parties.
Possible We have considered the possible forms of Client’s involvement in issuing the technical requirements for third parties for the construction of
involvement the Utilities in the ONI Territory. We have identified the following four options for the involvement of the Client:
forms of the
1. Current situation – soft involvement (option 1): The Ministry of Transport issues the technical requirements by itself, but they are
Client in
based on the UR prepared by the Client. The Client has no direct or guaranteed impact on drafting the specific case-by-case based
issuing the
technical requirements. From the practical point of view, we understand that this option is unfit as the Ministry of Transport lacks the
technical
knowledge and capacity for issuing the technical requirements and evaluating the technical aspects and risks of each construction initiative
requirements
in the ONI Territory. Considering the above, we do not analyse this option in detail for the purposes of this Report.
in the ONI
Territory 2. Agreement with Ministry of Transport – invisible involvement (option 2): In case the legal and contractual framework remains
unchanged, the technical requirements can be prepared by the Client and incorporated in the response letter of the Ministry of Transport
to the respective third party or a copy of the technical requirements prepared by the Client can be enclosed to the response letter of the
Ministry of Transport to the respective third party. The relations between the Ministry of Transport and the Client would remain unclear
and unstable, i.e., based upon oral agreement or mutual understanding. It would also create a risk of lacking terms for the issuance of
the technical requirements due to internal and the Ministry-Client procedures, since the final answer to the third party would still have to
fit into the 20-day term.
3. Delegation by an agreement – direct involvement (option 3): The Ministry of Transport remains the authorised institution indicated
in Regulations 91, but it enters into a delegation agreement (or the currently drafted delegation agreement is supplemented with the
respective clauses) with the Client, delegating to the Client the task to issue technical requirements (and/or execute other tasks under
the Regulations 91). Particular procedure would afterwards be the following: the Ministry of Transport forwards the request of the third
party to the Client and the Client issues the technical requirements directly to the third party instead of the Ministry of Transport based
on the delegation agreement. The third party may also file the request directly to the Client.
4. Delegation by Regulations 91 – direct indication (option 4): It is also possible to consider amendments to Regulations 91 to be
adopted replacing the Ministry of Transport in all or some of the articles of Regulations 91 with the Client. In this case the technical
requirements would be requested directly from the Client and the Client would issue the requirements directly to third parties without any
39
SECTION 4: REGULATION IN LATVIA
mandatory involvement of the Ministry of Transport. However, we do not further analyse this possibility due to: (1) the Client’s instructions
for seeking solutions that would remain within the current legal framework; (2) the time and effort consuming procedure for amending
the Regulations 91; (3) a direct delegation to the Client incorporated in the Cabinet Regulations would not correspond to the best public
task delegation practise.1
The Ministry of Having analysed the Inter-Governmental Agreement and the CSA, we are of the opinion that the Ministry of Transport has actually authorized
Transport as the Client to determine the requirements for construction of the Utilities in the ONI Territory as this is a necessary part of the Client’s tasks
the issuer in its role of “the project coordinator” and part of “the preparatory activities” under the Inter-Governmental Agreement. The Inter-
based on the Governmental Agreement states that common technical guidelines for design and construction of the railway shall be established (Article 4(3))
information and that the preparatory activities and the construction of the railway until its completion and achieving full technical functionality shall be
provided by coordinated by the project coordinator (Article 5). Also, under the CSA the Client as the Central Purchasing Body is authorized to procure
the Client Design Guidelines, the CPTD, the Master Design and the DTD (Clause 3.1.2(a)). In order to enable the Client to procure the DTD, all the
(option 2) Beneficiaries including the Ministry of Transport have authorized the Client to represent that Beneficiary in relation with any state or
municipality institutions, natural persons or legal entities, with the right to sign, submit, and receive all the documents and ensure all the
activities necessary and related to the preparation of the DTD (Clause 3.2.3(a)), as well as to perform other activities related to the
performance of the given task (Clause 3.1.2(b)). There are no reasonable doubts that in order to prepare the DTD: (1) the necessary
information regarding the existing and planned Utilities in the ONI Territory shall be collected and analysed; and (2) unified design guidelines
for the Utilities servicing the Railway Line shall be in place to ensure its interoperability. No reasonable doubts exist that “the preparatory
activities” under the Inter-Governmental Agreement and the CSA should include also the right of the Client to provide guidance
to third parties on construction in the ONI Territory (although it is not directly (expressis verbis) indicated in the above documents),
taking into account that the Client (and not the Ministry of Transport) is the entity who possesses all the technical information regarding the
Railway Line.
Considering the above, we are of the opinion that the Ministry of Transport should be obliged to respect the competence of the Client in
determining binding requirements to third parties in respect of the placement of the Utilities in the ONI Territory on case-by case basis. Each
time when the Ministry of Transport received a request to issue technical requirements under Regulations 91, the Ministry should inform the
Client and request technical requirements from the Client, as well as forward the Client’s technical requirements to the respective third party.
The technical requirements would be prepared by the Client and incorporated in the response letter of the Ministry of Transport to the
respective third party or a copy of the technical requirements prepared by the Client could be enclosed to the response letter of the Ministry
of Transport to the respective third party.
In order to specify the mutual understanding of the competences under the Inter-Governmental Agreement and the CSA in the conventional
order, for this scenario, it would be advisable that an agreement on cooperation is concluded between the Client and the Ministry of Transport
1 For more detail, please see page 188, Gala ziņojums: Valsts pārvaldes uzdevumu nodošanas analīze un rekomendācijas, available:
https://www.tm.gov.lv/files/archieve/lv_jaunumi_1.pdf
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establishing the obligation of the Ministry to forward all respective requests under Regulation 91 to the Client and to incorporate all the
requirements of the Client into the requirements and other consents issued by the Ministry of Transport to third parties.
We understand that this scenario is currently being applied in respect of the requests by third parties under Regulations 91, having no specific
agreement to cover mutual procedures and liabilities. However, we do not consider this being an optimal and reliable scenario for future as it
involves a lengthy exchange of information and does not precisely envisage the role of the Client in the further process of the construction of
the Utilities in the ONI Territory.
The Client as The replacement of the Ministry of Transport with the Client in the issuance process of the technical requirements to third parties is possible
the direct via a delegation agreement. Pursuant to the State Administration Structure Law, a public administration task may be delegated to a private
issuer based individual by a regulatory enactment or a contract, if it is provided for in a regulatory enactment. In addition, the issuance of administrative
on a acts may not be delegated to private persons, except cases when it is provided for in a regulatory enactment.
delegation
Although we believe that pursuant to the Inter-Governmental Agreement and the CSA the Ministry of Transport has actually authorized the
agreement
Client to determine the requirements for construction of the Utilities in the ONI Territory, the Client’s status versus third parties in the meaning
(option 3)
of the State Administration Structure Law in respect of determining binding requirements towards third parties should be precisely stipulated.
We have carefully evaluated the mentioned documents and are of the opinion that they may imply that the intent of the Ministry of Transport
in the above agreements was to delegate its administrative tasks towards third parties to the Client, however, it is advisable that this intent
is supported by additional legal instruments in order to avoid situations in which third parties and the involved institutions unjustifiably
question the authorisation of the Client. In addition, as the technical requirements to be issued by the Ministry of Transport may be disputed
before administrative courts, they could be compared to administrative acts to some extent and therefore the delegation for the issuance
thereof to the Client would require a clear statement in regulatory enactments (in the Inter-Governmental Agreement, Regulations 91 or
elsewhere).
However, in accordance with the statutes of the Ministry of Transport (issued as Cabinet Regulations No.242 on 29 April 2003), the Ministry
coordinates the implementation of the Rail Baltica state public infrastructure project until the implementation of the project and, by concluding
delegation agreements with the limited liability company “Eiropas dzelzceļa līnijas” and the joint stock company “RB Rail”, delegates to them
the organization of the development (latv.val. – “izveide”) of the infrastructure (Article 5.25).
The above article in the statutes of the Ministry of Transport were amended and put in the current wording with the direct intent of the Ministry
of Transport to facilitate and give legal ground within the external legal enactment for the Ministry to enter into a delegation agreement. Such
a delegation agreement could, inter alia, include a delegation for the Client to issue the technical requirements to third parties and
perform other tasks under Regulations 91. In this case the third parties would submit their requests under Regulations 91 to the Ministry of
Transport or directly to the Client. The Ministry would then forward them to the Client with a copy to the respective third party and with the
indication that pursuant to the delegation agreement the technical requirements will be issued by the Client. The Client would then issue the
technical requirements to the third party directly.
We consider that this solution would be the most efficient as it ensures a direct communication between the Client and third parties and
ensures the involvement (if necessary) of the Client in further construction stages of the Utilities in the ONI Territory.
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Terms for Regulations 91 do not contain any term for issuance of the requirements for the construction of Utilities in the ONI Territory.
issuing the
Pursuant to Article 16 of Regulations 500, the technical and special regulations of the state and municipal institutions shall be prepared and
technical
issued within 20 days of the receipt of the request.
requirements
Pursuant to Article 5(4) of the Land Management Law, in order to coordinate the intended activity, the owner (or the legal possessor or the
user) of the real estate applies to the competent institution informing about the intended activity. If the institution has not sent a refusal to
initiate the proposed activity within one month or has not requested additional information, the institution shall be deemed to have coordinated
the action.
Considering the above, the requirements to third parties for the construction in the ONI Territory should be issued within 20 days of the
receipt of a respective request. If no requirements are issued within one month, the third party may consider the activity as approved by the
competent institution.
Involvement Pursuant to Article 74 of Regulations 500, upon receipt of the documents specified in the construction permit confirming the fulfilment of the
in the further design conditions, the construction authority verifies that the technical design complies with the spatial planning documents, all necessary
construction sections have been developed for the construction project, and the consent of the issuers of the technical requirements to the technical design
process of solutions has been received, confirming that the technical design complies with all the technical requirements and, if necessary, environmental
Utilities in the accessibility and insolation requirements.
ONI Territory
It may be concluded from the above, that the issuer of the technical requirements for the construction of the Utilities in the ONI Territory may
request that the technical design for the Utilities is approved by the issuer of the technical requirements. For the approval of the submitted
technical design the 30-day term would apply.
If the compliance with the technical requirements is not possible, the deviations should be approved by the respective issuer of the technical
requirements.
Depending on the type of the Utility to be constructed in the ONI Territory and depending on the construction regulations applicable in each
particular case, the issuer of the technical requirements may also be requested (within 14 days or within 10 working days depending on the
particular Utility) to issue an opinion on the readiness of the structure for operation, its compliance with the technical requirements and
requirements of regulatory enactments. This means that actually the issuer of the technical requirements is entitled to inspect the structure
and refuse to issue its positive opinion in case the structure has not been constructed in accordance with the issued technical requirements.
In case of a refusal, the structure will not be commissioned as positive opinions have to be submitted to the construction authority before
commissioning of the structure.
From the above we conclude that the issuer of the technical requirements will not only issue the requirements to third parties but
may also request that the technical design for the Utilities is submitted for review and approval, as well as may participate in
the commissioning of the structure (depending on the type of the respective Utility). All derogations from the technical requirements shall
also be submitted for approval to the issuer of the technical requirements.
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Role of Construction permits are usually issued by the construction authorities of the municipalities except for specific structures (e.g. railroads,
construction roads) in respect of which the role of the construction authority is conferred upon other institutions. The construction authority should indicate
authorities in the construction permit’s conditions the state institutions from which technical requirements should be received.
Thus, when issuing the construction permits for the construction of the Utilities in the ONI Territory, the construction authority should indicate
in the construction permit that the technical requirements from the Client are to be received pursuant to Regulations 91.
In order to remind the municipal and other construction authorities of the importance of this aspect, a letter could be sent to all relevant
construction authorities drawing their attention to Regulations 91 and the obligation to include the Client in the list of the issuers of the
technical requirements in the construction permits for structures in the ONI Territory. The letter should also invite the municipal and other
construction authorities to maintain active communication with the Client in order to follow possible changes to the Railway Line alignment,
and also to invite the municipal and other construction authorities to inform the Client of any significant construction intentions in the area
adjacent to the Railway Line, so that, if necessary, the Client could address the Ministry of Transport with a request to exercise the rights
provided for in Article 5(5) of the Land Management Law (if the Ministry considers that these rights can be exercised in respect of the lands
outside the ONI Territory).
Validity term No validity term for the technical requirements to be issued by the Ministry of Transport is indicated in Regulations 91. For comparison, the
and other validity term of the technical requirements issued by the State Environment Service is 5 years. The validity term of the technical requirements
conditions of issued by the JSC “Latvijas dzelzceļš” (Latvian railway) is 1 year with a prolongation option.
the technical
Thus, a reasonable validity term should be indicated in the technical requirements issued under Regulations 91, as well as the obligation to
requirements
submit the technical design for the approval to the issuer of the technical requirements.
Documents to Considering the above analysis, we suggest that the following documents are prepared and issued:
be issued
1) provisions included in the delegation agreement to be concluded between the Client and the Ministry of Transport regarding the fulfilment
of the administrative tasks towards third parties established in Regulations 91 – without delay;
2) a letter to all relevant construction authorities inviting to take notice of Regulations 91 when reviewing construction initiatives in the ONI
Territory – without delay;
3) a template for the technical requirements (to the extent possible considering the case-by-case approach to each construction initiative).
Utilities We note that the possibility to control the construction of the Utilities via the technical requirements relates only to the ONI Territory. If any
outside the Utilities are constructed outside the ONI Territory no technical requirements should be received from the Ministry of the Transport. Thus,
ONI Territory neither the Client nor the Ministry of Transport may directly determine requirements for the Utilities and other structures to be built outside
the current ONI Territory even in case the Changes in the alignment of the Railway Line are identified. Only after the inclusion of the
respective additional territories in the ONI Territory, Regulations 91 will apply.
In case additional territories necessary for the construction of the Railway Line have been identified by the Client but not yet included in the
ONI Territory and any Utilities are constructed in that territory that will significantly burden the construction of the Railway Line, the measure
provided for in Article 5(5) of the Land Management Law could be considered for application by the Ministry of Transport. Pursuant to the
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mentioned regulation, the competent institution may make a reasoned decision which prohibits to continue the commenced use of a real
estate object for the construction, if the real estate object in accordance with the construction project in a minimum composition or the
technical design, or an administrative act issued by the Cabinet or by a municipality will be expropriated for the needs of the society and the
commenced use of the real estate burdens the implementation of the infrastructure project or substantially increases possible additional costs.
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SECTION 5: REGULATION IN LITHUANIA
Section 5.
Regulation in Lithuania
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SECTION 5: REGULATION IN LITHUANIA
Summary of Section 5
Is it possible to enforce the UR in a manner that is binding to Is it possible to enforce the UR in a manner that is binding to
third parties while the Client, the Implementing Bodies and the third parties with stricter technical requirements than currently
Beneficiaries are not the owners of the land under the Railway stated in the laws and regulations?
Line?
It may be possible to enforce the UR in a manner that is binding to third parties The Lithuanian legal acts determine only minimal clearances between the
on a case-by-case basis while the Client, the Implementing Bodies and the Utilities and between the Utilities and other objects (including railway
Beneficiaries are not the owners of the land under the Railway Line once the tracks). The laws and case-law are silent as to whether the issuer of the
special land condition – railway protection zone - is registered in the Register of technical conditions can determine stricter requirements by requesting
Real Estate. greater clearances between the Utilities and other objects. However, it may
Each allowed construction initiative within railway protection zone shall be be considered that stricter requirements could be determined in the
coordinated with the Client on behalf of AB Lietuvos geležinkeliai and on the technical conditions / requirements on case-by-case basis issued by
basis of a cooperation agreement by issuing the written consent for the competent subject for construction of Utilities in the railway protection zone,
construction of Utilities in railway protection zone (please see section 5.3. for given that reasonable justification of the need for such stricter requirements
detailed analysis). If the UR are incorporated in the requirements issued for is in place.
construction in the railway protection zone, the UR should become binding to
the respective third party who intends to build Utilities in the railway protection
zone. Please see the comments regarding the possibility to set stricter
clearances in the UR than established in Lithuanian legal acts in 5.2.
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How shall the Client interact with the third parties, Beneficiaries, What documents shall be issued, to whom and when in order
Implementing Bodies and other institutions to actually enforce to enforce the UR?
the UR?
In order to enforce the UR, several options (for more detail please see Section 1) Preparation step 1: an agreement between the Client and AB Lietuvos
5.3 below) of action were analysed and the following one found to be the most geležinkeliai which would clearly stipulate the Client’s authorisations to
preferable by the Client. perform actions in relation to construction initiatives in the railway
protection zone of the Railway Line (as well as to participate in further
Accordingly, if the Client chooses the option to issue written consent for
stages of implementation of Utilities construction – issue design
construction in the railway protection zone of the Railway Line directly to third
approvals, visit the site, participate in Utilities commissioning
parties (option 3) the following actions should be taken by the Client:
procedures, etc.) and define the interaction process between the parties
1. further negotiations with AB Lietuvos geležinkeliai and incorporation of - without delay;
the Client’s authorisations towards the third parties in the agreement; 2) Preparation step 2: a letter to all municipal and other relevant
authorities participating in approving / supervising design and
2. a letter to all municipal and other relevant authorities participating in
construction of Utilities within the territories crossed by the Railway Line
approving / supervising design and construction of Utilities within the
inviting them to take notice of the Inter – Governmental Agreement,
territories crossed by the Railway Line inviting them to take notice of the
CSA and the agreement between the Client and AB Lietuvos
Inter – Governmental Agreement, CSA and the agreement between the
geležinkeliai and drawing attention to the necessity to coordinate any
Client and AB Lietuvos geležinkeliai (if concluded) and drawing attention
construction initiatives within the railway protection zones of the
to the necessity to coordinate any construction initiatives within the
Railway Line – without delay.
railway protection zones of the Railway Line;
3) Implementation: issuance (on a case-by-case basis) of consents,
3. upon the respective request from a third party received via AB Lietuvos including technical conditions / requirements, to the interested third
geležinkeliai - issuance of the consent to the third party by the Client in parties by the Client in the name and on behalf of AB Lietuvos
the name and on behalf of AB Lietuvos geležinkeliai. geležinkeliai.
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5.1. Binding effect of the UR towards third parties
Requirements Obligation to obtain technical requirements and design approvals
for design and
In Lithuania the planned Railway Line corridor and railway protection zones of the Railway Line have been established under the Special Plan.
construction According to the Land Law the railway protection zones established for a particular land plot shall apply once they are registered with the
set by public Real Estate Register. The railway protection zones of the Railway Line have been registered to certain land plots which are to be expropriated
institutions and under the Decision on Special Plan (please find more details below).
other subjects
Pursuant to the CTR Construction Permitting Documents, if the designed structure falls into the protection zones of other structures, it is
required to obtain the written approvals of the design, issued by the owners / managers of the structures, for which benefit the protection
zones were established, before applying for the construction permitting document. If the Utilities are designed in the railway protection zone,
it is required to obtain written consent of the public railway infrastructure manager (AB Lietuvos geležinkeliai). Prior to applying for the
construction permitting document, it is required to obtain a written approval of the design by AB Lietuvos geležinkeliai, being the manager
of the structures, for which benefit the protection zones were established, also by the Lithuanian Transport Safety Authority (the LTSA).
Before issuing its approval of the design AB Lietuvos geležinkeliai and the Lithuanian Transport Safety Authority verifies if the required
consent of AB Lietuvos geležinkeliai is obtained and whether the requirements issued by the AB Lietuvos geležinkeliai are observed in the
design documentation (please see details below).
If the intended Utility crosses or shall be connected to (or disconnected from) engineering networks, technical requirements (connection
conditions) shall also be received from the owners of the respective engineering networks.
Thus, while preparing the design of the Utilities in the railway protection zone, the Builder has to comply with the certain requirements (the
Requirements) obtained from the competent authorities and other subjects as follows:
- written consent to Utilities construction in the railway protection zone and technical requirements for Utilities construction set by
public railway infrastructure manager;
- connection to engineering networks and communications conditions issued by the owners of the respective networks and
communications;
- technical requirements / design approvals issued by other competent authorities / subjects, in cases when it is required under the CTR
Construction Permitting Documents and other applicable legal acts.
It shall be noted that according to the Construction Law the authorities and subjects which issued the requirements shall ensure their
compliance with the requirements of the applicable legal acts of the Republic of Lithuania.
Inspection of the Utilities design and issuing the construction permitting documents
According to the Construction Law, the construction permitting documents (if required for construction of certain Utility depending on the
type, technical parameters and specifics of the Utilities according to the CTR Classification of Structures) shall be issued by the administration
of the respective municipality on which territory the Utilities shall be constructed. Before issuing the construction permitting documents for
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construction of Utilities in the railway protection zone, the compliance of the Utility design with the requirements of the legal acts and the
obtained Requirements is inspected by the municipality administration, the LTSA, owners / managers of engineering networks and
communications to which the Utilities are intended to be connected as well as other competent authorities (depending on the type and
specifics of Utilities / structures) as established in the CTR Construction Permitting Documents. As mentioned above, prior to issuing the
construction permitting document the Utilities design shall be approved by public railway infrastructure manager, as the manager of the
structures, for which benefit the protection zones were established, also by the Lithuanian Transport Safety Authority (the LTSA).
According to the Construction Law and CTR Construction Permitting Documents, the municipality administration inspects compliance of the
Utilities design solutions concerning normative distances between structures (also between structures and sites) with the respective legal
requirements, also verifies if the Builder has obtained all the required consents / approvals from the subjects indicated in the legal acts,
including AB Lietuvos geležinkeliai. The LTSA inspects compliance of the Utilities design with the requirements of the legal acts regulating
construction of railway objects. AB Lietuvos geležinkeliai verifies the compliance of the design with the requirements issued by AB Lietuvos
geležinkeliai.
Given that all the Requirements issued by the competent authorities / subjects are observed in the Utilities design documentation, the
respective municipality issues the Utility construction permitting documents.
It shall be noted that the consent of public railway infrastructure manager for any construction initiative within the railway protection zone
is required, notwithstanding that for construction of certain Utilities / structures preparation of the design and obtaining construction
permitting documents are not required under the legal acts.
Railway On 11 January 2017, the Government of the Republic of Lithuania by the Decision on Special Plan approved the Special Plan for the Project
Protection Zone and initiated the land expropriation procedures under the Expropriation Law. From the day the Decision on Special Plan came into force, the
regulation owners of the land plots, which are to be expropriated, are prohibited to transfer, mortgage or by any other means restrict their property
rights in land plots indicated in the Special Plan as well as the owners shall have no right to rearrange (separate, portion, divide or merge)
these land plots. From the moment when the land owner and (or) other user of the land is informed about the initiation of procedure of
expropriation, the land owner and (or) other user shall not interfere the implementation of the expropriation procedures.
The Special Plan establishes railway protection zone along the Railway Line. Under the Land Law and Decision on Special Land Conditions
the special land use condition comes into force once is registered in the Register of Real Estate. We have checked number of the land plots,
which are under the process of expropriation, and determined that some of them already have this special condition registered, however,
not all. We consulted with AB Lietuvos geležinkeliai and UAB Kelprojektas (company implementing the expropriation procedure) and they
expect that the registration in the Register of Real Estate of the railway protection zones for all land plots established by the Special Plan
should be finalised until the end of 2018.
Once the railway protection zones are registered in the Register of Real Estate in respect of a land plot indicated in the Special Plan, the
regime and the restrictions specified below shall apply in respect of the construction at this land plot.
Under the Railway Transport Code, special protection zones are designated for railway tracks and their facilities. According to the Railway
Transport Code and the Decision on Special Land Conditions, it is prohibited within the protection zone of railway tracks and their facilities:
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1) to construct and reconstruct buildings not related to railway transport needs;
2) to use land not for its intended purpose.
Also, it is prohibited within the railway and rail facilities protection zone without a written consent by the public railway infrastructure
manager:
1) to excavate deeper than 0.3 m, mechanically level soil surfaces, conduct explosions and carry out land reclamation work;
2) to plant or cut trees and shrubs (exceptions apply);
3) to build crossings;
4) to construct and reconstruct buildings intended for railway transport needs and utilities.
Under Article 23 of Railway Transport Code the public railway infrastructure manager is AB Lietuvos geležinkeliai, therefore, any allowed
construction initiative in the railway protection zone shall be performed upon the written consent of AB Lietuvos geležinkeliai. Please note
that written consent of AB Lietuvos geležinkeliai for construction initiatives in the railway protection zone is necessary irrespective of the
ownership of the land plot.
Please note that the legal acts do not set the term for issuance of such permit, however, considering other terms indicated in construction
laws, it is our opinion that 10-20 working days should be considered as a reasonable term. Please note that AB Lietuvos geležinkeliai may
have some internal procedure for issuance of the consents, including terms, however, we could not find it publicised.
Additionally to the above, CTR Construction Works indicates that land works in the railway protection zone may be initiated only upon
participation of the representative of public railway infrastructure manager and after the written consents for such works are received from
the land owners (possessors) and from public railway infrastructure manager also upon signing the utilities installation, supervision,
reconstruction and removal agreement. The written consents indicated above shall determine the following requirements:
1) until the beginning of works to ensure the continuance of the exploitation of railway (when the works are performed in the railway
traffic place);
2) the terms of land works and obligation to notify the person issuing the consent;
3) obligation to reinstate the railway track parameters according to the requirements of technical design and construction technical
documents until the indicated date using own funds;
4) upon necessity to repair, reconstruct or develop communications and railway infrastructure, the cables or other networks of the builder
(client) within the protection zone shall be transformed under the order set in the agreement between the parties;
5) mechanisms, equipment and other means that are allowed to use while performing the works;
6) to inform the public infrastructure manager and the owner of the road about the works in protection zone three working days in advance;
7) confirmation that the works may be performed only by persons who have the permits to work in protection zones;
8) utilities may be built under the railway only by closed perforation method by having the ends of the utilities outside the protection zone.
If the Builder does not comply with the requirements set in the written consents of the land owner or public railway infrastructure manager,
does not comply with the railway safety requirements or does not have the consents specified above, the institution responsible for the state
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supervision of the constructions on its own initiative or on the initiative of the railway owner, police or other persons may suspend the
constructions.
Requirements Pursuant to Article 27 of the Construction Law, CTR Construction Permitting Documents and CTR Construction Works, the construction the
set by the Builder intending to construct / install / repair any structure on the land plot / structure, which is not owned or otherwise legally possessed
owner of land / by the Builder, has to obtain the respective consents of the land / structure (in case the construction works are intended in an existing
structure structure) owner or possessor or conclude an agreement with the land / structure owner or possessor before applying for the construction
permitting document. Additionally, CTR Construction Works indicates that land works in the railway protection zone may be initiated only
upon written consents for such works are received from the land owners (possessors). It is the discretion of the land / structure owner or
possessor to agree or not to agree to the intended construction (save for the cases when construction without prior obtaining of the discussed
owner consents is permitted by the law, i.e. in case of construction of engineering networks, which corridor was formed under the spatial
planning documents).
According to the CTR Construction Works the owner / possessor of the land / structure shall be entitled to determine certain requirements
for the intended construction by providing its consent. It is likely that the owner / possessor of the land / structure may also specify horizontal
and vertical clearances between different objects constructed on the land. The clearances set by the land owner / manager may not be less
than the minimal clearances defined by the Lithuanian legal acts. It shall be considered that the owner may determine stricter clearances
than those established by the law. However, it shall be noted that the owner may not provide unreasonable and unjustified requirements
concerning the mentioned clearances between the objects to be constructed on the land (please see Section 5.2. below).
Supervision Pursuant to the Construction law and the CTR Construction Works, supervision of construction of Utilities is performed as follows:
and completion - Supervision of execution of the Utilities design conducted by the designer of the Utilities, which inspects whether the Utilities are being
of construction constructed in accordance with their design;
of Utilities - technical supervision conducted by the technical supervisor appointed by the Builder, which controls whether the construction is carried
out in accordance with the legal acts, normative technical documents, Utilities design and the Requirements, etc.
- State supervision conducted by the State Spatial Planning and Construction Authority under the Ministry of Environment (the SSPCA).
Under the Construction Law the design execution and technical supervision of the construction is mandatory in case of construction of special
structures and certain simple structures in cases established by law. Depending on technical parameters and specifics of the Utilities (CTR
Classification of Structures), the Utilities may be classified as special structures (e.g. trunk heat transfer networks with a pressure of more
than 16 bar with an inside diameter greater than 100 mm, water pipes, collectors for sewage networks with an inside diameter greater than
500 mm, 110 kV and higher voltage transmission networks, etc.) or as simple structures. In most cases supervision of construction of simple
structures is not mandatory and may be conducted on the initiative of the Builder.
Under the Construction Law the above referred construction supervisors shall be entitled to demand the Builder / the contractor to remove
/ rectify any inconsistences with the design solutions and the applicable Requirements. In case the instructions and orders of the construction
supervisors are not observed, they shall be entitled to suspend the construction of Utilities.
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According to the CTR Construction Works (Clause 40.5), land works within the railway protection zone can be performed only in the presence
of the authorized representative of the public railway infrastructure manager (AB Lietuvos geležinkeliai). The land works are defined by the
CTR Construction Works as excavation of the land / ground for construction purposes, filling of soil or underground works.
Pursuant to the Construction Law completion of the construction of special structures shall be formalised by the construction completion
deed issued by the construction completion commission (the Commission) formed by the SSPCA in accordance with the requirements of the
CTR Construction Permitting Documents. Construction of simple structures and certain special structures (in cases established by law) may
be completed by issuing the declaration on construction completion by the Builder, which in certain cases shall be approved by the SSPCA.
Procedures for the approval of a declaration are not obligatory if the design expertise has been carried out in accordance with the procedure
established by the STR Structure Design and the compliance of the structure with the essential requirements specified in the Construction
Law was determined.
Before issuing the construction completion deed the commission formed by the SSPCA, which is composed inter alia of the representatives
of the respective municipality and of the owners of engineering networks and communications issued conditions on connection to respective
networks / communications (including AB Lietuvos geležinkeliai, if certain conditions were issued) inspects if the constructed Utilities comply
with the design solutions, requirements of the legal acts as well as the conditions / requirements set in the written approvals of the respective
subjects (which approvals of the design were required under the legal acts) were fulfilled. In case violations in construction works were
determined, the SSPCA decides on suspension of the construction completion procedures until the violations are duly rectified.
In cases when according to the legal acts the completion of the construction may be formalised by the declaration on completion of
construction, an authorised representative of the SSPCA inspects (in cases established by law) if the constructed Utilities comply with the
design solutions, requirements of the legal acts as well as the conditions / requirements set in the written approvals of the respective
subjects (whose approvals of the design were required under the legal acts) were fulfilled.
Conclusion Our conclusion is that it may be possible to enforce the UR in a manner that is binding to third parties on a case-by-case basis while the
Client, the Implementing Bodies and the Beneficiaries are not the owners of the land under the Railway Line in cooperation with AB Lietuvos
geležinkeliai once the special land condition – railway protection zone - is registered with the Register of Real Estate.
Each allowed construction initiative within railway protection zone shall be coordinated with AB Lietuvos geležinkeliai and AB Lietuvos
geležinkeliai shall issue the written consent for the construction of Utilities in railway protection zone. If the UR requirements are incorporated
in the requirements for construction issued by AB Lietuvos geležinkeliai for construction in the railway protection zone, the UR should become
binding to the respective third party who intends to build Utilities in the railway protection zone. Please see the comments regarding the
possibility to set stricter clearances in the UR than established in Lithuanian legal acts in 5.2.
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5.2. Legal regulation for technical requirements of the UR
Legal It is our understanding that the Client would like to regulate the horizontal and vertical clearances between the railway tracks and railway
regulation infrastructure objects and different Utilities which may be placed near the Railway Line and related infrastructure objects or which may cross
the Railway Line. The UR will comprise the technical requirements for the horizontal and vertical clearances when placing Utilities near or
across the Railway Line. The intention of the Client is that the UR will be binding to the Clients contracting partners (used for designing the
Utilities necessary for the operation of the Railway Line) and should become binding to the third parties who intend to construct the Utilities
near or across the Railway Line.
It shall be noted that there is no unified legal act concerning regulation of design and construction of Utilities and railway tracks / structures
in Lithuania. The framework legal act establishing the basic and most essential regulation of construction process is the Lithuanian Construction
Law. Certain requirements related to design and construction of the Railway Line and crossing of the Railway Line with engineering and
communication networks are established in the Special Plan.
Technical requirements concerning design and construction of railway and various types of Utilities, including minimal horizontal and vertical
clearances between the railway tracks / structures and Utilities / other objects, are provided in a number of by-laws, construction rules,
standards, depending on the type of the Utility.
Generally, the mentioned requirements are provided in the mandatory legal acts, such as rules and technical construction regulations,
approved by the Lithuanian Government, the Minister of Environment, the Minister of Energy, Communications Regulatory Authority and other
competent authorities, as detailed in the List of legal acts provided in Section 6.3 below. These minimal requirements shall apply to all
participants of design and construction process.
Additionally, technical requirements for construction of Utilities, establishing minimal horizontal and vertical clearances, are provided in
construction rules and European and Lithuanian standards. According to the Construction Law, the application of these documents is voluntary,
unless it is indicated in the by-laws that application of construction rules and standards is mandatory. Please note that for the purposes of
this Report, we have not reviewed the mentioned documents of non-binding nature.
It shall be noted that the above-mentioned legal acts do not provide any specific / stricter requirements, including minimal clearances between
structures / objects in respect of design and construction of the Railway Line. Therefore, the minimal clearances established in the currently
valid legal acts applicable, basically, to any railway shall be used in order to determine the technical requirements for the clearances between
the Utilities and the Railway Line.
Possibility to As mentioned above, Lithuanian legal acts basically determine minimal clearances between the Utilities and other objects (including railway
set stricter tracks / structures). This shall, generally, mean that it is possible to use greater distances between the Utilities and other objects while
regulations preparing certain Utilities design. However, the applicable legal acts (Railway Transport Code, Construction Law, CTR Construction Works,
etc.) do not provide for an explicit legal ground for establishing stricter requirements concerning minimal horizontal and vertical clearances
between Utilities by the competent subjects (AB Lietuvos geležinkeliai / the Client owners of engineering networks and communications),
while issuing their conditions / requirements towards third parties. Moreover, pursuant to the Construction Law, the authorities and subjects
shall ensure that their issued technical requirements / conditions are compliant with the requirements of the applicable legal acts.
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AB Lietuvos geležinkeliai during the telephone conversation supported the position that only requirements provided in the currently valid legal
acts should be issued to third parties, until stricter requirements are “legitimised” by the legal act(s).
Notwithstanding the above, in our opinion, it may be considered that stricter requirements could be incorporated in the technical requirements
issued for construction of Utilities in the railway protection zone of the Railway Line on case-by-case basis, given that reasonable technical
justification for setting such stricter requirements is in place and can be provided to the Builder or other interested persons, if requested.
Potential arguments that may be invoked for justification of setting stricter regulations could be the following:
- with Articles 4 – 6 of the Construction Law and EU Regulation No. 305/2011 - mechanical strength and stability, fire safety,
environmental protection and hygiene, including harmlessness, safety of use and accessibility of the environment, acoustics (noise
protection), energy efficiency, sustainable use of natural resources, etc.;
- “Rail Baltica” project has been declared as a project of national importance and current regulation is not sufficient for the European
standard gauge railway with the speed of 240 km/h (higher safety, environment, operation and maintenance of the Railway Line
standards shall apply);
- essential requirements for a structure (in this case – the Railway Line) in accordance impacts of vibration, maintenance requirements,
possible consequences of an accident (damage or collapse of the respective Utility);
- quality of the environment, the rational use of the territory, energy and natural resources and the availability of the environment;
- any available international practice for placement of the Utilities in the railway right of way of European gauge railway.
- any available technical expertise and expert’s suggestions for the horizontal and vertical clearances of the Utilities to be placed within
the railway protection zones of the Railway Line.
Additionally, the requirements established in the Railway Transport Code applicable for the activity in railway protection zones (such as
prohibition to construct and reconstruct buildings not related to railway transport needs, excavate deeper than 0.3 m, mechanically level soil
surfaces, conduct explosions and carry out land reclamation work, build crossings within the Railway Protection Zone, etc.), also requirements
concerning the railway protection zone of the Railway Line established in the Special Plan, may be invoked in finding justification for
determining stricter requirements for the clearances in the designing stage of the Railway Line.
However, neither the laws nor the available case-law contains any indication or guidance of whether and what kind of justification should be
available to impose stricter requirements in respect of the clearances between the Utilities and between the Utilities and railway tracks / other
railway infrastructure objects. In any case, it shall be considered that competent institutions / subjects may not set clearances between the
Utilities and between the Utilities and other objects that are unreasonable and lacking proper and firm justification. Otherwise, there is a risk
of disputing the issued stricter requirements by the Builder or other interested persons.
In addition, it shall be noted that we did not succeed in finding any court judgements where a dispute over the clearances between the Utilities
and between the Utilities and other structures would have been reviewed. Therefore, we conclude that there is currently no sustainable case-
law in Lithuania on the issues concerned.
Initiation of amendments to the current legislative regulation or adoption of the new legal act establishing requirements for implementation
of the Project in cooperation with the Ministry of Transport and Communication and the Ministry of Environment could also be considered to
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implement the UR in the legislative acts as special requirements for the European gauge railway and thus avoid the potential disputes over
the interpretation of the existing legal framework.
Conclusion The Lithuanian legal acts determine only minimal clearances between the Utilities and between the Utilities and other objects (including
railway tracks). The laws and case-law are silent as to whether the issuer of the technical conditions can determine stricter requirements by
requesting greater clearances between the Utilities and other objects. However, it may be considered that stricter requirements could be
determined in the technical conditions / requirements on case-by-case basis issued by competent subject for construction of Utilities in the
railway protection zone, given that reasonable justification of the need for such stricter requirements is in place.
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5.3. Interaction procedures and documents to be issued
Role of AB As indicated above in the Report, any allowed construction initiative in the railway protection zone shall be performed upon the written
Lietuvos consent of the public infrastructure manager AB Lietuvos geležinkeliai.
geležinkeliai
In Lithuania there is no separate regulation in respect of issuing consents/ technical conditions in the railway protection zone of the Railway
Line, therefore, the general railway protection zone restrictions are applicable. Functions of AB Lietuvos geležinkeliai, as well as
requirements and restrictions in relation to construction in railway protection zone are established in the Railway Transport Code (Article
19) and Decision on Special Land Conditions.
Based on verbal discussion with the specialists of AB Lietuvos geležinkeliai, we understand that in practice the third parties apply to AB
Lietuvos geležinkeliai with design proposals and request to issue the consent for construction in the railway protection zone. After such
request, AB Lietuvos geležinkeliai issue technical conditions, however, these conditions are generally based on mandatory statutory
requirements valid in Lithuania. Also, the third party and AB Lietuvos geležinkeliai sign the utilities installation, supervision, reconstruction
and removal agreement under which third parties’ obligations in case the development of the railway, etc. are established (to remove /
reconstruct Utilities if it is needed for further development of the railway, etc.). However, please note that the template of this agreement
is not public, therefore, we could not evaluate its provisions and, therefore, the information provided above is based on verbal
communication with the specialists of AB Lietuvos geležinkeliai only.
Possible Since the Client is willing to participate in the process of establishing technical conditions and issuing consents for constructions in the
involvement railway protection zone of the Railway Line, we have looked at different possibilities in this situation:
forms of the
1) Amendments to legislation allowing the Client to issue the consent and technical requirements / conditions for third parties for the
Client in
issuing construction of the Utilities within the railway protection zone of the Railway Line;
written 2) AB Lietuvos geležinkeliai issues the written consent itself based on the UR prepared by the Client or the response letter of AB Lietuvos
consent for geležinkeliai to the respective third party includes a copy of the technical requirements prepared by the Client;
construction 3) AB Lietuvos geležinkeliai forwards the request of the third party to the Client and the Client issues the technical requirements and the
in the railway written consent directly to the third party on behalf of AB Lietuvos geležinkeliai.
protection
zone of the
Railway Line
Amendments As indicated above, in Lithuania there is no separate regulation in respect of issuing consents/ technical conditions in the railway protection
to legislation zone of the Railway Line, therefore, the general railway protection zone requirements are applicable.
(option 1)
It would be possible to consider amendment of legislation / adoption of new legislation by establishing specific regulation for railway
protection zone of the Railway Line and detailed specific requirements for implementation of the Project. However, this process can be
rather complicated and lengthy, also, we understand that this option is not preferred by the Client, therefore, it will not be further
elaborated.
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AB Lietuvos Following the discussion with the Client’s representative in Lithuania, we understand that currently AB Lietuvos geležinkeliai issue the
geležinkeliai written consents and technical conditions to third parties in respect of the construction of the Utilities in the railway protection zone of the
as the issuer Railway Line without consulting the Client. However, this is an issue for the Client, since, in the Client’s opinion, AB Lietuvos geležinkeliai
of the UR does not have the particular knowledge required for issuance of technical conditions which would ensure effective implementation of the
based on the Global Project and construction of the Railway Line.
information
Having analysed the Inter-Governmental Agreement and the CSA, we agree that it shall be interpreted in the way as described in Section
provided by
4.3. of this Report, i.e. that the Client is actually authorised to determine the requirements for construction of the Utilities in the railway
the Client
protection zone of the Railway Line as this is a necessary part of the Client’s tasks in its role of “the project coordinator” and part of “the
(option 2)
preparatory activities” under the Inter-Governmental Agreement.
In order to enable the Client to procure the Detailed Technical Design, all the Beneficiaries have authorized the Client to represent them in
relations with any state or municipality institutions, natural persons or legal entities, with the right to sign, submit and receive all the
documents and ensure all the activities necessary and related to the preparation of the Detailed Technical Design (Clause 3.2.3(a)), as well
as to perform other activities related to the performance of the given task (Clause 3.1.2(b)). AB Lietuvos geležinkeliai as the Implementing
Body by signing the CSA consented to the aforementioned authorization by the Beneficiary, as well as accepted the authorization given in
its name by the Beneficiary for the Client to act in the name and on behalf of AB Lietuvos geležinkeliai as well.
We also agree that there are no reasonable doubts that in order to prepare the Detailed Technical Design: (1) the necessary information
regarding the existing and planned Utilities in the territory of railway protection zone of the Railway Line shall be collected and analysed;
and (2) unified design guidelines for the Utilities servicing the Railway Line shall be in place to ensure its interoperability. Also we agree
that it may be interpreted that “the preparatory activities” under the Inter-Governmental Agreement and the CSA should include also the
right of the Client to provide guidance to third parties on construction in the railway protection zone of the Railway Line (although it is not
directly (expressis verbis) indicated in the above documents), taking into account that the Client (and not AB Lietuvos geležinkeliai) is the
entity who possesses all the technical information regarding the Railway Line.
Therefore, based on the above, we agree that AB Lietuvos geležinkeliai should incorporate the UR drafted by the Client in the written
consents issued to third parties in respect of construction of the Utilities in the railway protection zone of the Railway Line.
However, neither the Inter-Governmental Agreement nor the CSA set a clear order how such cooperation should be implemented.
Therefore, in order to set the mutual understanding of the competences under the Inter-Governmental Agreement and the CSA, as well to
establish the clear and specific order how the Client would be involved in the procedure of issuing written consents for construction initiatives
in railway protection zone of the Railway Line (by just providing the UR to AB Lietuvos geležinkeliai; by preparing individual technical
conditions for each request, etc.), it would be advisable that a cooperation agreement is concluded between the Client and AB Lietuvos
geležinkeliai. The agreement could establish the obligation of AB Lietuvos geležinkeliai to forward all respective requests of third parties in
respect of construction of Utilities in the railway protection zone of the Railway Line to the Client and to incorporate all the requirements of
the Client into the technical requirements and consents issued by AB Lietuvos geležinkeliai to third parties.
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However, this option shall not be considered to be the most optimal and reliable scenario as it involves a lengthy exchange of information
and does not precisely foresee the role of the Client in the further process of the construction of the Utilities in the railway protection zone
of the Railway Line.
The Client as As indicated above in the Report, in Lithuania currently there is no separate regulation in respect of appointing an infrastructure manager
the direct of the Railway Line and well as issuing consents / technical conditions in the railway protection zone of the Railway Line. According to the
issuer of the information provided by the Client the decision regarding the infrastructure manager of the Railway Line should be made until 30 June
UR based on 2019 (indicative date). According to general regulation of the railway protection zones provided in the Railway Transport Code (Article 19)
the and the Decision on Special Land Conditions, AB Lietuvos geležinkeliai is currently the only public railway infrastructure manager, which is
cooperation authorized to issue the written consent to construct Utilities in railway protection zones.
agreement
However, irrespective of the fact that the legislation currently in force does not contain any particular provisions with respect to issuance
with AB
of consents / technical conditions in the railway protection zone of the Railway Line, the following circumstances should be taken into
Lietuvos
consideration.
gelezinkeliai
(option 3) Firstly, the governments of Lithuania, Latvia and Estonia on 31 January 2017 signed Inter-Governmental Agreement and on a level of an
international treaty confirmed the main functions of RB Rail: design, construction and marketing (including branding) of the Railway Line.
Both the Inter-Governmental Agreement and the Shareholders’ Agreement define functions of RB Rail rather broadly, therefore, the
authorizations granted to RB Rail in the CSA should be systematically interpreted in the same manner.
Secondly, RB Rail being responsible for implementation of design phase and partly of construction phase of the Railway Line is the sole
subject which has the required expertise and knowledge regarding the design of the Railway Line. Therefore, from practical perspective as
well as in order to ensure safety, future interoperability of the Railway Line and effective usage of EU funds allocated for implementation
of the Global Project, the Client shall be deemed an appropriate subject to communicate with third parties and determine technical
requirements regarding construction initiatives in the railway protection zone of the Railway Line.
Thirdly, under the current legislation it is not likely that AB Lietuvos geležinkeliai should be considered as the „infrastructure manager” in
respect of the Railway Line infrastructure until the Railway Line is actually constructed. As mentioned above, the decision regarding the
appointment of the infrastructure manager of the Railway Line shall be adopted only in middle of 2019.
As explained in Section 4.3 of the of the Report, we believe that pursuant to the Inter-Governmental Agreement and the CSA, as well as
taking into consideration the arguments above, the Ministry of Transport and AB Lietuvos geležinkeliai has actually authorized the Client
to determine the requirements for construction of the Utilities in the railway protection zone of the Railway Line, since it is necessary for
the Client to properly perform its functions designated to the Client by the Inter-Governmental Agreement. However, we are of opinion
that the Client’s status versus third parties in respect of determining binding requirements towards third parties should be precisely
stipulated in written (please see the potential alternatives for such stipulation described below in this section).
It should, however, be considered that the CSA is not an international treaty ratified by the Parliament of the Republic of Lithuania and the
Lithuanian law is currently silent about the Client’s authorisations to issue consents / technical conditions in the railway protection zone of
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the Railway Line. Therefore, there may be certain risks that the Client’s authorisations in respect of issuing consents / technical conditions
in the railway protection zone of the Railway Line may be challenged in Lithuanian courts by third parties. In addition, certain practical
issues may not be excluded, since the competent state institutions (e.g. municipality authorities issuing permits for construction), third
parties requesting consents may question the authority of the Client as an issuer of the written consents in the Utilities construction process
arising merely on the basis of the Inter-Governmental Agreement and the CSA and not directly established in the Lithuanian railway and
construction legislation. In cases of dispute the Client could support its position in court or in front of other institutions with the arguments
indicated above.
In order to ensure smooth process of cooperation between all the parties concerned (the Client, Lietuvos geležinkeliai, Ministry of Transport,
etc.), we recommend to conclude a cooperation agreement with AB Lietuvos geležinkeliai which would clearly stipulate the Client’s
authorisations to perform the discussed actions in relation to construction initiatives in the railway protection zone of the Railway Line (i.e.
issuing consent for construction, establishing technical conditions / requirements to third parties, verifying the Utilities design and issuing
design approvals, visiting the site, participating in Utilities commissioning procedures, other related authorisations) on behalf of AB Lietuvos
geležinkeliai and define the interaction process between the parties. The content of the agreement could be that AB Lietuvos geležinkeliai
is obligated to send all requests to the Client immediately and the Client has the right to issue its consents / approvals / conditions directly
to third parties on behalf of AB Lietuvos geležinkeliai. Alternatively, the Client may consider sending respective letter to AB Lietuvos
geležinkeliai and the Ministry of Transport with the reminder of the authorisations granted to the Client under the signed Inter –
Governmental Agreement and CSA and the request to forward all third parties applications in relation to Utilities construction initiatives in
the railway protection zone of the Railway Line to the Client so that the consents to be issued directly by the Client to the third parties
based on the authorisations granted under the Inter-Governmental Agreement and the CSA.
Although certain legal risk remains, we consider that the solution discussed in this section would be the most efficient, as it would ensure
the direct communication between the Client and third parties and the involvement (if necessary) of the Client in further stages of design
and construction of the Utilities in the railway protection zone of the Railway Line.
Documents to In order to implement the above alternative, the following documents shall be prepared and issued:
be issued
1) Preparation step 1: an agreement between the Client and AB Lietuvos geležinkeliai which would clearly stipulate the Client’s
authorisations to perform actions in relation to construction initiatives in the railway protection zone of the Railway Line (as well as to
participate in further stages of implementation of Utilities construction – issue design approvals, visit the site, participate in Utilities
commissioning procedures, etc.) and define the interaction process between the parties - without delay;
2) Preparation step 2: a letter to all municipal and other relevant authorities participating in approving / supervising design and construction
of Utilities within the territories crossed by the Railway Line inviting them to take notice of the Inter – Governmental Agreement, CSA
and the agreement between the Client and AB Lietuvos geležinkeliai (if concluded) and drawing attention to the necessity to coordinate
any construction initiatives within the railway protection zones of the Railway Line – without delay.
3) Enforcement: issuance (on a case-by-case basis) of consents, including technical conditions / requirements, to the interested third
parties by the Client in the name and on behalf of AB Lietuvos geležinkeliai.
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Utilities We note that the possibility to control the construction of the Utilities via the written consents relates only to railway protection zones of
outside the the Railway Line. If any Utilities are constructed outside the railway protection zones of the Railway Line, no consent of AB Lietuvos
railway geležinkeliai shall be needed. Thus, neither the Client nor AB Lietuvos geležinkeliai may directly determine requirements for the Utilities
protection and other structures to be built outside the current railway protection zones of the Railway Line, even in case the changes in the alignment
zone territory of the Railway Line are identified, unless railway protection zone is established in such territories.
In addition, it shall be noted that in certain cases established in the CTR Construction Permitting Documents, approvals of the owners /
managers of the adjacent land plots to construction initiatives have to be obtained. Therefore, once the land plots within the Railway Line
corridor are expropriated, the respective consents of the trustee / manager of these land plots (potentially - the Ministry of Transport and
Communication / AB Lietuvos geležinkeliai) may be required for certain construction initiatives in the adjacent land plots.
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Section 6.
Manual for preparation and application of the UR
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6.1. Estonia
Regulations for horizontal and vertical clearances between the Utilities and other structures
The table below reflects regulations and laws that contain regulation on horizontal and vertical clearances between Utilities and other structures. Please keep in
mind that unlike laws, regulations aren’t usually translated to English in Estonia. Therefore, the English headlines for regulations aren’t official translations and we
have added Estonian versions of these regulations. We note that no EVS and other non-published standards were verified for the purposes of this Report.
If it is stipulated in the table below that it is possible to deviate and set greater clearances, the reasonable justification should be mentioned in the technical
conditions given with the approval/conditional approval. As mentioned previously in section 3.1, if the Client does not give their approval to a project with the
condition that certain aspects of the project must be changed (according to the Client’s higher demands), this non-approval or conditional approval has to be based
on law, regulation or a spatial plan. This means that the building authority (TRA or local authority) is legally obligated to abide by the non-approval or conditional
approval, only if it is based on law, regulation or a spatial plan.
Law Date Number Content Possibility to deviate
Water Act 11.05.1994 - The Water Act regulates the use and protection of Possibility to deviate from the minimal
water, relations between landowners and water requirement but probably no higher than the
users and the use of public water bodies and water maximum requirement.
bodies designated for public use.
For example: “A clearance of a storage facility
Sets minimal and maximum clearances to ensure for oil products shall be at least 25 meters but
water protection (§ 26). Specific requirements are not more than 150 meters depending on the
set in regulations. capacity of the storage facility.” It is possible
to deviate from the 25-meter rule but not the
The Water Act and the regulations (171, 172, 23) 150-meter rule.
regarding storage facilities might not be necessary
for the UR, the technical team can assess if these
are relevant.
Regulations Date Number Content Possibility to deviate
Regulation “Requirements for gas installations that 03.07.2015 87 As the headline says, Regulation 87 defines the As only minimal clearances are stipulated,
use heating gas and its construction, installation of requirements for construction of gas installations, deviations are possible for setting greater
gas appliances, storage of gas cylinders and filling of the installation of gas appliances, storage of gas clearances if the reasonable justification
gas containers” cylinders and filling of gas containers. exists.
Määrus “Küttegaasi kasutavale gaasipaigaldisele, It states the minimal horizontal clearances for
selle ehitamisele ja gaasiseadme paigaldamisele mentioned Utilities set forth in the Regulation and
ning gaasiballooni ladustamisele ja gaasianuma other objects. It also sets the minimal vertical
täitmisele esitatavad nõuded” clearance for gas tanks and gas pipelines built
underground.
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Regulation “Water protection requirements for 16.05.2001 171 Defines the planning, construction and operation Even though the regulation stipulates minimal
sewerage facilities” requirements for sewerage facilities. requirements, the Water Act states that the
maximum clearance is 500 meters. Therefore,
Määrus “Kanalisatsiooniehitiste veekaitsenõuded” Sets minimal clearances between aforementioned it is possible to deviate but the clearance can’t
facilities and other objects. be higher than 500 meters.
Regulation “Water protection requirements for 16.05.2001 172 Defines the planning, construction and operation Even though the regulation stipulates minimal
storage facilities for oil products” requirements for storage facilities for oil products. requirements, the Water Act states that the
maximum clearance is 150 meters. Therefore,
Määrus “Naftasaaduste hoidmisehitiste Sets minimal clearances between aforementioned it is possible to deviate but the clearance can’t
veekaitsenõuded” storage facilities and other objects. be higher than 150 meters.
Regulation “Water protection requirements for 15.06.2012 23 Defines the planning, construction and operation As only minimal clearances are stipulated,
storage facilities for shale oil, its subproducts or requirements for storage facilities for shale oil, its deviations are possible for setting greater
biofuels” subproducts or biofuels. clearances if the reasonable justification
exists.
Määrus “Põlevkiviõli, selle saaduste või biokütuste Sets minimal clearances between aforementioned
hoidmisehitiste veekaitsenõuded” storage facilities and other objects.
Regulation “Design standards for land improvement 17.02.2005 18 Sets design standards for different land As only minimal clearances are stipulated,
systems” improvement systems (construction works needed deviations are possible for setting greater
for drainage and irrigation). clearances if the reasonable justification
Määrus “Maaparandussüsteemi exists.
projekteerimisnormid” Sets minimal vertical and horizontal clearances for
land improvement systems.
Regulation “Requirements for the construction of 09.07.2015 43 Sets the minimal vertical clearances for certain As only minimal clearances are stipulated,
dug wells, for the building design documentation, aspects of constructing drilled wells and dug wells. deviations are possible for setting greater
the construction, demolition, rebuilding building clearances if the reasonable justification
design documentation for dug wells and holes, for exists.
the designing, establishing, deployment, upgrading,
demolition and conservation of dug holes and wells
and the forms to drill well or hole location approval,
building permit and permit for use, construction or
operation notice, drilling diary, cavity construction or
operation notice drill well and for depositing data in
the environmental register, and for demolishing drill
wells, drill holes and dug wells”
Määrus “Nõuded salvkaevu konstruktsiooni,
puurkaevu või -augu ehitusprojekti ja
konstruktsiooni ning lammutamise ja
ümberehitamise ehitusprojekti kohta, puurkaevu või
-augu projekteerimise, rajamise, kasutusele
võtmise, ümberehitamise, lammutamise ja
konserveerimise korra ning puurkaevu või -augu
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asukoha kooskõlastamise, ehitusloa ja kasutusloa
taotluste, ehitus- või kasutusteatise,
puurimispäeviku, salvkaevu ehitus- või
kasutusteatise, puurkaevu või -augu ja salvkaevu
andmete keskkonnaregistrisse kandmiseks esitamise
ning puurkaevu või -augu ja salvkaevu lammutamise
teatise vormid”
Regulation “The extent of protection zones of 25.06.2015 73 Regulates protection zones of different Utilities and The extent of protection zones can’t be altered.
construction works, procedures for operating in therefore indirectly sets clearances for certain
protection zones and the requirements for marking objects and terms for construction in that area. As only minimal clearances have been
protection zones” stipulated between district heating pipes and
The protection zone of a construction work is the other Utilities (§ 11 subsection 4), deviations
Määrus “Ehitise kaitsevööndi ulatus, kaitsevööndis land underneath and around the construction work are possible for setting greater clearances if
tegutsemise kord ja kaitsevööndi tähistusele within which the owner of the registered the reasonable justification exists.
esitatavad nõuded” immovable is obligated to tolerate the presence of
a construction work belonging to another and
within which the use of the registered immovable
and operations on the registered immovable are
restricted for the purposes of safety and of
ensuring the functionality of the construction work
(§ 70 subsection 1 of the Building Code).
Also sets clearances between district heating pipes
and other Utilities (§ 11 subsection 4).
Regulation “Standards for the designing of roads” 05.08.2015 106 The Regulation states that the regulations and According to Section 8.1 of the Annex, the
other guide materials from other countries with clearances for underground Utilities have not
Määrus “Tee projekteerimise normid" similar climate can be used for the designing of been set but it is presumed that demands for
roads in Estonia. clearances have been met, if they have been
set according to standard EVS 843:2003. Since
Annex of Regulation 106 sets the requirements for this is a non-mandatory standard, greater
the designing of highways. Section 8 sets the clearances can be set.
requirements for Utilities.
Section 8.2 of the Annex sets minimal
clearances for above-ground Utilities.
Therefore, deviations are possible for setting
greater clearances, if the reasonable
justification exists.
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Examples of reasonable justification arguments for setting stricter clearances
1. General principle of safety as stipulated in Building Code § 8: Construction works, building work, the use of construction works and any other operations
related to building work must be safe. Construction works, building work, the use of construction works and any other operations related to building work
are safe if they do not pose a danger to humans, property or the environment.
2. General principle of environmental soundness as stipulated in Building Code § 9: Construction works, building work and the use of construction works
must be as environmentally sound as possible; this principle also includes the requirement of sparing use of natural resources in the course of building
work.
3. Requirements for construction works (the buildings) as stipulated in Building Code § 11 subsection 2:
1) mechanical durability and stability;
2) fire safety;
3) hygiene, health and the environment;
4) safety of use and access, including the needs of evacuation and rescue of people from the construction work and an operational map;
5) protection from noise;
6) energy conservation and energy efficiency;
7) sparing use of natural resources;
8) special needs of disabled people;
9) the functionality of a construction work, its functional coherence and compatibility;
requirements arising from the purpose of use and from use of the construction work—i.e., requirements concerning the state of the construction
work, including maintenance requirements.
4. Annex to the Regulation 106 “Standards for the designing of roads” point 8.1 (5) states that the clearances between Utilities and other buildings and trees
must ensure the safety, maintenance of trees and allow the maintenance of Utilities in a manner that minimizes the impact to other buildings and trees.
5. The regulation regarding protection zones in Chapter 8 of the Building Code. In the protection zone, it is prohibited to endanger the construction work or
any use of the construction work that follows established procedure (§ 70 subsection 2 point 1) and in the protection zone of a railway, it is prohibited to
endanger rail traffic (§ 73 subsection 2). Even though the protection zone will be formed once the railway is built, these justifications could be used since
the county-wide spatial plans have already marked the Railway Line Corridor. Also, Building Code § 12 subsection 2 states that building work must conform
to the restrictions and spatial plans at the location of the construction work. Since the county-wide spatial plans explanatory statement point 3.3.1 states
that the future building of the Railway Line must be taken into account, the regulation regarding protection zones may be used to justify stricter clearances.
6. Any available international practice for placement of the Utilities in the railway right of way of European gauge railway.
7. Any available technical expertise and expert’s suggestions for the horizontal and vertical clearances of the Utilities to be placed in the Railway Line Corridor.
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Steps to be taken in case the cooperation agreement is concluded with the Ministry
The graph below reflects consecutive steps to be taken in case a co-operation agreement is concluded between the Client and the Ministry as described in Section
3.3 of this Report.
•Building notice or request for building permit to begin construction work in the Railway Line Corridor by a third party to a competent authority
•Request for approval to the Ministry by the competent authority (without delay)
Step 1 •Receipt of the request for approval by the Ministry
•Forwarding the above mentioned request to the Client by the Ministry in order to provide the technical requirements to be incorporated in the
approval to the competent authority (without delay)
Step 2 •Receipt of the above mentioned request by the Client
•Preparation of the technical requirements with the approval or conditional approval by the Client (within 10 days, if the Client needs more time -
an extentions shall be requested)
•Forwarding the approval with the technical requirements to the competent authority (within 10 days after the Ministry has received the request or
Step 3 within the extended time period)
•Receipt of the approval/conditional approval and technical requirements by the competent authority
•Issuance of the technical requirements to the third party by the competent authority
•Receipt of the issued technical requirements by the third party
Step 4 •Modification of the project by the third party if necessary
•Submission of the modified project to the competent authority by the third party
•Issuance of the building permit by the competent authority if the modified project meets the requirements set by the Client
•Denial to issue the building permit/perform construction works if the modified project does not meet the requirements set by the Client
Step 5 •The Client will visit the site (if it was stipulated in the technical requirements) in order to inspect whether the construction has been conducted
according to the requirements
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6.2. Latvia
Regulations for horizontal and vertical clearances between the Utilities and other structures
The table below reflects the identified legislation acts that contain regulation on horizontal and vertical clearances between the Utilities and other structures. We
note that no LVS, EU standards and other non-published standards were verified for the purposes of this Report.
Regulations Date Nr Content Possibility to deviate
Regulations on the 30.09.2014 574 Regulations 574 define requirements for layout of engineering As only minimal horizontal and vertical clearances are stipulated,
Latvian Construction networks for heating, water, sewers, drainage, electronic deviations are possible for setting greater clearances if the necessary
Regulation LBN 008-14 communications, electricity supply, and gas supply substantiation exists (please see Section 4.2).
“Layout of engineering engineering networks with pressure up to 1.6 MPa.
networks” Where engineering networks cannot be placed according to the
The horizontal clearances are defined in respect of the minimal clearances, derogations are permitted if the following
distance of the engineering networks (underground and over conditions are met:
ground) to other objects (such as foundations of buildings, 1) the safety of the technical solution may be ensured in accordance
fences, estacades, railway catenary poles; outer railway track with the requirements of the Construction Law and other
axes (1520 and 750 gauge), roads etc. Horizontal clearances regulatory enactments;
between different engineering networks are defined as well. 2) the solution is coordinated with the owner (legal possessor) of the
Vertical clearances (underground and over ground) are land and with the owner (legal possessor) of the engineering
defined in respect of particular engineering networks. networks whose protection zones are affected or between which
the specified distances are not possible, as well as with the
It shall be noted that Article 12 of Regulations 574 prohibits to relevant state and municipal institutions, except in cases specified
place all types of Utilities in the railway substructure in the Energy Law.
(“dzelzceļa zemes klātnē”), except for technological
communications of the railway.
Particular regulations for placing the engineering networks in
the railway right of way of a 1520 mm gauge railway are
indicated in Article 21 including the minimal vertical distances
for underground engineering networks under the railway in
crossings with the railway (Article 21.6).
Regulations on the 30.06.2015 328 Regulations 328 define requirements which shall be followed As only minimal horizontal and vertical clearances are stipulated,
Latvian Construction when designing, constructing, reconstructing electronic deviations are possible for setting greater clearances if the necessary
Regulation LBN 262-15 communication networks. substantiation exists (please see Section 4.2).
“Electronic
communication Annex 2 of the Regulations defines minimal vertical and Pursuant to Regulations 328 (Article 88 and 89), when installing or
networks” horizontal clearances between external dimensions of building electronic communications networks, owners of engineering
electronic communications network lines (underground and communications or objects shall comply with the minimum distances
over ground) and other objects including different railway between the external dimensions of metallic cable lines and other
infrastructure objects. objects of electronic communications networks and mutually
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coordinate the distances. The minimum distance between the external
dimensions of the optical cable lines and other objects of electronic
communications networks may be less than that set out in Annex 2 if
the owners of the objects mutually agree on the distances.
Where the placement of electronic communications network lines
within the specified distances is not possible, the distance reduction
shall be coordinated with the owners of the engineering networks or
other objects.
Regulations on the 30.06.2015 335 Regulations 335 establish technical requirements for the Please see the description of deviation possibilities for Regulations
Latvian Construction design, construction works and commissioning of internal and 574 above.
Regulation LBN 243-15 external liquefied petroleum gas pipeline systems with a
“Internal and external maximum operating pressure of up to 1,6 MPa (16 bar).
gas pipeline system for
liquefied petroleum In respect of the clearances, a reference to Regulations 574 is
gas” indicated. No other regulation for clearances is determined.
Regulations on the 30.06.2015 341 Regulations 341 set technical requirements for the design, Please see the description of deviation possibilities for Regulations
Latvian Construction construction works and commissioning of natural gas external 574 above.
Regulation LBN 242-15 pipeline systems as well as natural gas pipelines located
“Natural gas external outside buildings with a maximum operating pressure of up to
Please note that we have not verified the content of LVS 417.
gas pipeline system” 1,6 MPa (16 bar) for design, work and recruitment.
Article 21 states that horizontal and vertical distances of the
underground and surface gas pipelines to structures and
engineering networks shall be determined in accordance with
Regulations No 574.
In addition, sub-section 3.3 sets additional requirements for
the crossings with railways, roads and tram lines. It is stated
in Article 38 that in areas where the pipeline crosses railways,
tramway tracks and motorways, minimum distances to
objects and other engineering structures shall be determined
in accordance with the requirements of LBN 008 (Regulations
574) and LVS 417. Article 39 sets additional requirements for
placement of the gas pipelines under railway.
Regulations on the 30.06.2015 326 Regulations 326 set technical requirements for the design and Please see the description of deviation possibilities for Regulations
Latvian Construction construction works of water supply structures. 574 above.
Regulation LBN 222-15
“Water supply Article 165 states that the location of the pipelines shall be
As only minimal vertical clearances are stipulated in Article 168,
structures” determined in accordance with regulatory enactments in the
deviations are possible for setting greater clearances if the necessary
substantiation exists (please see Section 4.2).
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SECTION 6: MANUAL FOR APPLICATION OF UR
field of construction. Thus, an indirect reference to
Regulations 574 is made.
In addition, Article 168 sets particular requirements for
vertical distances from the bottom of the rail track to the top
of the pipes and tunnels stating that these distances shall be
determined according to soil conditions and transport loads,
but may not be:
1) less than 1 m for construction in an open trench;
2) less than 1,5 m for construction with a perforation
(caurspiešanas) or tunnel method;
3) less than 2,5 m - using the punctuation method.
Regulations on the 30.06.2015. 327 Regulations 327 set technical requirements for the design and Deviations are possible for setting greater clearances if the necessary
Latvian Construction construction works of sewerage structures. substantiation exists (please see Section 4.2).
Regulation LBN 223-15
“Sewerage structures” Article 63 states that pipeline crossings with road and railway
track shall be designed in accordance with the regulatory
enactments regarding the design of water supply structures
and the instructions of the relevant supervisory services.
Thus, a reference to Latvian Construction Regulation LBN 222-
15 “Water supply structures” is made regarding requirements
for sewerage structures.
Section 4.2 regulates the minimal installation depth of
pipelines.
“Railway technical 03.08.2010 724 Railway Technical Operations Regulations are regulations As only minimal horizontal and vertical clearances are stipulated,
operations regulations” issued by the Cabinet and govern the basic railway technical deviations are possible for setting greater clearances if the necessary
operations requirements. The Regulations mainly relate to the substantiation exists (please see Section 4.2).
operation of a railway. However, they also contain some
regulations for the Utilities servicing the railway itself.
Therefore, a few requirements can be found regulating the
clearances between the specific Utilities and the railway
structures (Articles 284-286 regarding communication cable
lines, Articles 295-300 regarding power supply Utilities).
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Examples of reasonable justification arguments for setting stricter clearances
1. Article 3 of Regulations 574 pursuant to which the location of engineering networks (the Utilities) in the territory shall be planned in such a way as to comply
with the requirements of the Construction Law, as well as to ensure the quality of the environment, the rational use of the territory, energy and natural
resources and the availability of the environment.
2. Article 12 of Regulations 574 pursuant to which it is prohibited to place all types of Utilities in the railway substructure (“dzelzceļa zemes klātnē”), except for
technological communications of the railway.
3. Essential requirements for a structure (in this case – the Railway Line) in accordance with Article 9 of the Construction Law - mechanical strength and stability,
fire safety, environmental protection and hygiene, including harmlessness, safety of use and accessibility of the environment, acoustics (noise protection),
energy efficiency, sustainable use of natural resources.
4. Article 17(3) of the Railway Law pursuant to which any placement, relocation, and renovation of the Utilities in the railway right of way must not diminish the
operational quality of the railway infrastructure facilities or traffic safety.
5. Impacts of vibration, maintenance requirements, possible consequences of an accident (damage or collapse of the respective Utility).
6. Any available international practice for placement of the Utilities in the railway right of way of European gauge railway.
7. Any available technical expertise and expert’s suggestions for the horizontal and vertical clearances of the Utilities to be placed in the ONI Territory.
8. The regulatory framework contained in the Protection Zone Law as a guideline, which, among others, states that it is prohibited in the protection zones along
railroads: (1) to perform activities that will result in the visibility of the railroad being decreased or covering with snow being increased; (2) to perform
activities as a result of which the hydrological conditions in the railroad protection zone may deteriorate or the functioning of the amelioration systems and
structures of the protection zone and adjacent to it or crossing it may be disturbed; (3) to perform any building or ground digging and displacement works
without co-ordination with the manager of the railway infrastructure; (4) to block service roads and accesses to the servicing objects of the railway.
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Steps to be taken in case the delegation agreement is concluded with the Ministry of Transport
The graph below reflects consecutive steps to be taken in case a delegation agreement is concluded between the Client and the Ministry of Transport as described
in Section 4.3 of this Report.
•The third party - submission of the request for requirements (conditions) for the construction in the ONI Territory under Regulations 91 to the
Ministry of Transport or directly to the Client if agreed so in the delegation agreement
Step 1 •The Ministry of Transport - receipt of the request for requirements by the Ministry of Transport
•The Ministry of Transport - forwarding the request for requirements for the construction in the ONI Territory under Regulations 91 to the Client
(without delay)
•The Client - the receipt of the request for requirements for the construction in the ONI Territory under Regulations 91 (from the Ministry of
Step 2 Transport or directly from the third party)
•The Client - preparation and issuance of the requirements within 20 days of the initial request of the third party
•The third party - receipt of the requirements for the construction in the ONI Territory under Regulations 91
Step 3
•The third party - preparation of the technical design by the third party, submission to the Client for the approval (if requested)
•The Client - review of the technical design, approval of the solutions or refusal to approve within 30 days
Step 4
•The third party - request to the Client to issue the opinion on the readiness of the structure for the comissioning (depending on the regulations
for the particular type of Utility)
•The Client - visiting the object (if necessary or requested), issuing the opinion on the readiness of the structure for comissioning (within 10
Step 5 working days or within 14 days depending on the particular Utility)
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Steps to be taken to control territories potentially necessary for the Railway Line but not located within the current ONI Territory
•Letter to the municipal and other construction authorities inviting to inform the Client and the Ministry of Transport about all significant
construction initiatives in the land plots adjacent or located near the ONI Territory which could impact the implementation of the Project
Step 1
•Receipt and evaluation of the information about significant construction initiatives in the land plots adjacent or located near the ONI Territory which
could impact the implementation of the Project
Step 2
•If necessary - addressing the Ministry of Transport with the request to exercise the rights of the Ministry stated in Article 5(5) of the Land
Management Law (a reasoned decision which prohibits to continue the commenced use of a real estate object for the construction, if the real estate
object in accordance with the construction project in a minimum composition or the technical design, or an administrative act issued by the Cabinet
Step 3 or by a municipality will be expropriated for the needs of the society and the commenced use of the real estate burdens the implementation of the
infrastructure project or substantially increases possible additional costs)
•The Ministry issues the reasoned decision which prohibits to continue the commenced use of a real estate object for the construction.
Step 4
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6.3. Lithuania
Regulations for horizontal and vertical clearances between the Utilities and other structures
The table below reflects legislation containing regulation on horizontal and vertical clearances between the Utilities and other structures, including railway tracks
and structures. We note that no voluntarily applicable documents, such as construction rules and standards, were verified for the purposes of this Report.
Law Date Nr Content Possibility to deviate Comment
Rules on 28-01-2014 1-12 The Rules defines requirements for design and As only minimal horizontal and The requirements of the rules are
Establishment and construction of trunk gas pipelines with the working vertical clearances are obligatory for all participants in the
Development of pressure range from 16 bar to 100 bar, which are stipulated, it shall be construction who performs design or
Trunk Gas Pipelines used for transporting natural gas as well as considered that deviations are construction of HGP, HGP owners,
approved by the distribution, gas compressors, record stations and possible for setting greater controllers as well as the owners,
order of the Minister pressure limitation units (hereinafter – HGP). clearances if the reasonable controllers, users of the land-plots falling
of Energy justification is in place. under the territory of HGP and other
The Rules set minimal distances from trunk gas subjects participating in the planning of
pipeline to the buildings / structures and other above-mentioned territories or
objects, including railway and railway infrastructure performing design / construction of any
objects as well as cases when prior written buildings or installations.
approvals from the owner of the HGP are required
within the limits of the lowest allowed distances.
Rules on 17-05-2016 1-162 The Rules establish technical and organizational As only minimal horizontal The requirements of the rules are
Establishing requirements of design and installation of steel gas clearances are stipulated, it obligatory for all participants of
Distributive Gas pipelines with the maximum pressure no higher shall be considered that construction and establishment of the gas
Pipelines approved than 16 bar and polyethylene gas pipelines with the deviations are possible for pipelines as well as persons who design,
by the order of the maximum pressure no higher than 7 bar. The rules setting greater clearances if build, install, reconstruct or perform a
Minister of Energy the reasonable justification is major repair of the gas pipelines.
apply to the installation of natural gas systems for
in place.
the transport of natural gas, liquefied petroleum gas
pipelines with a gas pressure of not more than 2 bar
or consumer gas systems.
The rules set minimal horizontal distances from the
underground gas pipelines to buildings, utilities,
other objects, including railways, electricity lines or
support of the electrified railway contact points, also
distances between gas pipelines.
Rules on Installation 17-06-2011 1-160 The Rules apply to design and construction of heat As only minimal clearances are The requirements of the rules are
of Heat Supply supply networks and heating points. The rules are stipulated, it shall be obligatory for any person installing,
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SECTION 6: MANUAL FOR APPLICATION OF UR
Networks and applicable for all trunk and underground distributive considered that deviations are reconstructing or performing major
Heating Points heat supply networks. The rules set the minimum possible for setting greater repairs of heat supply networks and
approved by the distances between heat supply networks and other clearances if the reasonable heating points.
order of the Minister engineering networks, buildings, structures, justification is in place.
of Energy including railway and its structure / objects.
Rules on Installation 20-12-2011 1-309 The Rules establish the requirements on installation As only minimal clearances are The requirements of the rules are
of Electricity Lines of air and cable electricity lines, electricity stipulated, it shall be obligatory for any person installing,
and Equipment equipment and streamlines up to 400 kV inclusive. considered that deviations are reconstructing or performing major
approved by the possible for setting greater repairs of electric lines and equipment.
order of the Minister The Rules set the minimum distances between clearances if the reasonable
of Energy electricity lines / cables and other engineering justification is in place.
networks, buildings, structures, including railway
and its structure / objects.
General Rules on 03-02-2011 1-22 The Rules establish the general requirements for As only minimal horizontal The requirements of the rules are
Establishing the construction of electricity networks, conductors, clearances are stipulated, it obligatory for producers of electricity,
Electricity electricity equipment and related issues. shall be considered that operators of transmission and distributive
Installations deviations are possible for networks, consumers of electric energy,
approved by the The Rules sets the minimum horizontal distances setting greater clearances if energy companies and persons
order of the Minister between the underground networks and buildings the reasonable justification is performing design, installation,
of Energy structures and other objects. in place. reconstruction or major repair of the
electrical devices with variable and
constant current up to 400 kV as well as
for persons, establishing vehicle recharge
access points and devices of provision of
electricity from the shore to the water
vehicles.
Rules on 14-10-2011 1V-978 The Rules set the basic requirements for design, As only minimal horizontal and The rules are mandatory for designers
Installation, construction, laying, installing, reconstructing and vertical clearances are and builders of electronic
Marking, marking electronic communication infrastructure or stipulated, it shall be communications infrastructure or current
Supervision and current buildings as much as these works are considered that deviations are buildings as much as these works are
Usage of Electronic related to equipping of electronic communications possible for setting greater related to the establishment of the
Communications infrastructure in the buildings. clearances if the reasonable infrastructure of electronic
Infrastructure justification is in place. communications in the buildings, for the
approved by the The Rules sets the minimum distances between controllers or users of the infrastructure,
Order of the pipes set up in horizontal and vertical plane, other persons.
Communications distances between pipes and railway tracks, other
Regulatory structures, buildings and other objects.
Authority
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SECTION 6: MANUAL FOR APPLICATION OF UR
Rules on the 05-05-2004 3-25/D1- The Rules establishes requirements for design of As only minimal horizontal
Railway Stations 249 new railway stations as well as reconstructing the clearances are stipulated, it
Design approved by current railway stations with the track gauge of shall be considered that
the Order of the 1520 mm in the territory of Lithuania in those deviations are possible for
Communications railway lines in which the maximum speeds for the setting greater clearances if
Regulatory train are: up to 160 km/h for commuter trains and the reasonable justification is
Authority up to 120 km/h for commercial trains. in place.
Section IV of the Rules sets minimal distances
between axis of the railway track and adjacent
buildings, structures and networks, as well as
specifies in which cases the establishes distances
can be lowered.
Construction 17-06-2005 D1-309 The Regulation establishes general requirements for As only minimal horizontal and The Regulation is mandatory for all
Technical Regulation construction, reconstruction and repair of vertical clearances are construction participants, owners or
‘Management of the manufacture, industrial and storage buildings, stipulated, it shall be users of engineering networks and
Land of structures and engineering networks. considered that deviations are communications, subjects of public
Manufacture, possible for setting greater administration as well as all persons
Industry and Section 1 of the Regulation „Underground clearances if the reasonable related to design, construction, usage
Storage Buildings’ engineering networks” sets minimal horizontal justification is in place. and supervision of buildings.
approved by the distances between underground engineering
order of the Minister networks and buildings, structures, engineering
of Environment networks and communications, including railway
and its structures.
Construction 21-07-2003 390 The Regulation establishes essential requirements As only minimal horizontal and The Regulation is mandatory for all
Technical Regulation for construction of inside and outdoor engineering vertical clearances are construction participants, owners or
“Plumbing and networks - plumbing and sewage remover stipulated, it shall be users of engineering networks and
sewage remover. considered that deviations are communications, subjects of public
Building engineering The Rules sets the minimum horizontal and vertical possible for setting greater administration, other legal and natural
systems. Outdoor distances between the networks and other clearances if the reasonable persons involved in this activity
Engineering structures / objects. justification is in place.
Networks”,
approved by the
order of the Minister
of Environment
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SECTION 6: MANUAL FOR APPLICATION OF UR
Examples of reasonable justification arguments for setting stricter clearances
1. Essential requirements for a structure (in this case – the Railway Line) in accordance with Articles 4 – 6 of the Construction Law and EU Regulation No. 305/2011
- mechanical strength and stability, fire safety, environmental protection and hygiene, including harmlessness, safety of use and accessibility of the environment,
acoustics (noise protection), energy efficiency, sustainable use of natural resources, etc.
2. The fact that “Rail Baltica” project has been declared as a project of national importance and current regulation is not sufficient for the European standard gauge
railway with the speed of 240 km/h (higher safety, environment, operation and maintenance of the Railway Line standards shall apply).
3. Impacts of vibration, maintenance requirements, possible consequences of an accident (damage or collapse of the respective Utility).
4. Quality of the environment, the rational use of the territory, energy and natural resources and the availability of the environment.
5. Any available international practice for placement of the Utilities in the railway right of way of European gauge railway.
6. Any available technical expertise and expert’s suggestions for the horizontal and vertical clearances of the Utilities to be placed within the railway protection
zones of the Railway Line.
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SECTION 6: MANUAL FOR APPLICATION OF UR
Steps to be taken in relation to construction initiatives in the railway protection zone of the Railway Line
The proposal (graph) of the procedure below is based on the assumption that the Client and AB Lietuvos geležinkeliai sign the cooperation agreement which
would clearly define Client’s authorisations to perform actions in relation to construction initiatives in the railway protection zone of the Railway Line.
•Submission of the request for written consent for construction in the railway protection zone of the Railway Line by the third party to AB Lietuvos
geležinkeliai
Step 1 •Receipt of the request for written consent for construction in the railway protection zone of the Railway Line by AB Lietuvos geležinkeliai
•Forwarding the above mentioned request to the Client by AB Lietuvos geležinkeliai (without delay) in order to provide the response / consent to the third
party
Step 2 •Receipt of the above mentioned request in the railway protection zone by the Client
•Preparation of the technical requirements by the Client (within the agreed term (we consider 5-10 working days to be reasonable) Reasonable justification
for setting stricter requirements shall be in place, however, not necesserily indicated in the technical conditions (i.e. protection of public interests - higher
safety, environment protection requirements, technical, operational and maintenance of RL requirements, etc.)
Step 3 •Issue of the written consent to the third party by the Client (no exact term established, however, we consider that 10-20 working days should be
reasonable)
•Signing of the Utilities installation, supervision, reconstruction and removal agreement between the Client and the third party
•Receipt of the written consent and technical requirements by the third party
•Preparation of the technical design by the third party, submission to the Client and LTSA for the approval of the design
Step 4 •Verifying the compliance of the design with the technical requirements issued by the Client and approval of the design by the Client and LTSA
•Visiting the site by the Client during the construction
•Participation in the Utilities commissioning procedures by the Client as follows:
• the builer’s requests the SSPCA to issue the construction completion deed (for certain type of Utilities which are special structures);
•The Client – being a member of the completion commision inspects the compliance of the constructed Utility with the design solutions implementing
Step 5 technical requirements issued by the Client and issues its approval or disapproval (within 10 working days after the completion commission had been
formed)
77
SECTION 7: DISCLAIMER
Section 7.
Disclaimer
78
-degrees
•
•
•
Total Pressure (kPa)
160 150 140 130 120 110 100 90 80 70 60 50 40 30 20 10 0
0
0,5
1
1,5
Depth below interference plane (m)
2
2,5
3
3,5
4
4,5
5
5,5
6
Sum of total pressure Overburden pressure Imposed pressure
GRAPH 1
TABLE A
°
°
°
°
°
°
SCHEMATIC 1
Saatja: Liene Stiebre <
[email protected]>
Saadetud: 07.06.2019 09:56
Adressaat: Kristjan Kaunissaare <
[email protected]>; Ahti Kuningas
<
[email protected]>; <
[email protected]>; <
[email protected]>; Olita
Bērziņa <
[email protected]>; <
[email protected]>; Nerijus Kaučikas
<
[email protected]>; <
[email protected]>; Heigo Saare
<
[email protected]>; TTJA <
[email protected]>; Anvar Salomets
<
[email protected]>; Riia Sillave - External <
[email protected]>; Info
<
[email protected]>; EDZL <
[email protected]>; Kaspars Vingris <
[email protected]>;
<
[email protected]>; <
[email protected]>; 'Arenijus Jackus'
<
[email protected]>
Koopia: Aivar Jaeski <
[email protected]>
Teema: RB Rail AS_Letter No. 6.1/107_Regarding the issuance of the Utility
Requirements
Manused: image004.png; image002.png; RBR Letter No 6.1.107_Regarding the izzuance
of the Utility Requirements.edoc
Dear Sir or Madam,
On behalf of the Management Board of RB Rail AS, please find attached letter No 6.1/107 on
“Regarding the issuance of the Utility Requirements”.
Thank you in advance for confirming receipt of the letter.
Sincerely,
Liene Stiebre Mob.: +371 29937716
Administrative Assistant E-mail:
[email protected]
Skype:
[email protected]
K. Valdemāra 8-7, Rīga, LV-1010, Latvia
RB Rail AS
http://www.railbaltica.org
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