Administrative lawsuits concerning changes in the purpose of land plots
According to article 49-1 of the Land Code (as amended before July 1, 2023), a change in the purpose of a land plot falls within the competence of a local executive body and is allowed based on the determination of the possibility of using the land plot for the requested purpose.
In accordance with paragraph 8 of this article, the decision to change the purpose of the land plot is made on the basis of the conclusion of the land commission.
A refusal to change the purpose of a land plot must be motivated.
By the decision of the SMAS of Almaty dated December 28, 2021, Bukanov's claim was satisfied.
The resolution of the Akim of Almaty dated October 22, 2021 in terms of paragraphs 9 and 10 of the annex to the resolution was declared illegal and canceled.
The court ordered the akim to eliminate the violations in full by changing the purpose of the plaintiff's land plot to "construction and operation of a dormitory with an administrative office."
By the decision of the SCAD of the Almaty City Court dated May 23, 2022, the court's decision remained unchanged.
By the resolution of the SCAD of the Supreme Court of February 9, 2023, the judicial acts were upheld (No. 6001-22-00-6ap/1413).
The plaintiff, on the basis of purchase and sale agreements, is the owner of the real estate object and the land plot adjacent to it.
The purpose of the land plot is the operation and maintenance of an apartment building. On October 5, 2021, the plaintiff applied for a request to change the purpose of the land plot to "construction and operation of a dormitory with an administrative office."
By the decree of the Akim of Almaty, the plaintiff was refused to change the purpose of the land plot (paragraphs of appendices 9, 10).
The reason for the refusal was the negative conclusion of the Department of Urban Planning and Urban Studies, which states that the land plot is partially located within the "red lines" of the street and does not correspond to the draft detailed layout of the territory of Almaty, approved by the resolution of the Akimat of the city.
In satisfying the claim, the local courts reasoned that most of the plaintiff's land plot, according to the "Plan for the implementation of urban planning regulations for the development of functional areas of the city of Almaty", approved by the Maslikhat decision of November 20, 2006, the placement of the requested objects is included in the permitted types of functional use of the territory.
According to the provisions of the Law on Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan (hereinafter referred to as the Law on Architecture) The "red lines" are used to regulate the boundaries of development, and not at the stage of changing the purpose of a land plot with an object commissioned in accordance with the procedure established by law.
On similar grounds, the decision of the SMAS of Almaty dated April 15, 2022, left unchanged by the appellate instance, satisfied Taranja's claim to the akimat of Almaty for recognition of illegal actions expressed in the refusal to change the purpose of the land plot from "farming" to "construction of an apartment complex."
In this case, the defendant did not provide evidence of the existence of a specially protected natural area "Ancient Almaty Complex, historical and ethnographic reserve", namely, a standard passport and information on its registration with an authorized body, the presence of security signs and, as a result, the presence of a two-kilometer security zone with an overlay on the plaintiff's participation.
At the same time, there are cases of incorrect interpretation by the courts of substantive law norms, inconsistency of conclusions with the circumstances of the case.
Thus, by the decision of the SMAS of Almaty dated November 26, 2021, Iliev's claim to the office of the akim of Almaty to cancel the resolution of the Akimat of Almaty on the refusal to change the purpose of the land plot was satisfied.
By resolutions of the Almaty City SCAD dated March 4, 2022 and May 20, 2022, the decision of the court of first instance remained unchanged.
In the case, it was established that Iliev is the owner of an apartment building and a land plot in the city of Almaty, with the intended purpose for the operation and maintenance of a residential building.
He built a non-residential building (cafe) with outbuildings on his land plot.
On August 5, 2021, Iliev applied to the aki mat for a change in the target value of the land plot from "operation and maintenance of an apartment building" to "operation and maintenance of an apartment building and catering facility."
By the resolution of the Akimat dated August 16, 2021, no. According to the plaintiff, changing the target value of the site to a mixed type does not restrict or violate the rights and interests of other persons, the cafe was built within the boundaries of land use, while it operates and the plaintiff pays the appropriate taxes as an individual entrepreneur.
The courts, satisfying the claim, recognized the refusal as not motivated. By the resolution of the SCAD of the Supreme Court of December 27, 2022, judicial acts of local courts were canceled, with a new decision rejecting the claim (No. 6001-22-00 6ap/1020 (2). The courts did not take into account that the non-residential premises (cafe) were not put into operation in accordance with the procedure established by law.
By the judicial act that entered into force, the plaintiff was brought to administrative responsibility for non-elimination of violations committed by the illegal construction of a capital building without design estimates and expert opinions.
The plaintiff's land plot is indivisible.
At the same time, the regulatory requirements (sanitary and epidemiological, in the field of fire safety and others) for the construction, operation and functioning of a residential building and a catering facility differ from each other.
The board found signs of abuse of law in the actions of the plaintiff to change the purpose of the land plot, since the plaintiff's intention to change the purpose of the land plot is related to the subsequent legalization of the illegally built catering facility.
Despite the fact that these circumstances have been established by the courts, they have not been given a proper legal assessment.
According to paragraph 1 of Article 109 of the Land Code, all lands of settlements are used in accordance with their master plans, detailed planning and building projects, as well as projects of land management of the territory.
The issues of forming the master plan and RAP are regulated by the Law on Architecture.
Master plans of settlements are the main urban planning document that defines the integrated planning of the development of a city, village, village or other settlement and is developed in accordance with the approved general scheme of organization of the territory and the integrated scheme of urban planning of the regions.
The general plan of the settlement is valid until the approval of a new general plan or the approval of changes to the current general plan in a part that does not contradict the legislation of the Republic of Kazakhstan.
Therefore, all changes to the master plan must comply with the law.
By virtue of article 47-1 of the Law, urban development projects for certain parts of the territories of settlements (detailed planning projects) are developed on the basis of the general plan of the settlement, approved in accordance with the established procedure.
RAP are developed in accordance with the elements of the planning structure established in the general plans of settlements, urban planning regulations, and the concept of a unified architectural style.
The approved RAP may be amended and supplemented no more than twice a year, except in cases caused by the need to adjust the current detailed planning project for the construction of social, cultural and unique facilities at the expense of budgetary funds.
According to paragraph 1 of Article 44 of the Land Code, local executive bodies of the region, the city of republican significance, the capital, the district, the city of regional significance, akims of the city of district significance, the settlement, the village, the rural district must ensure strict observance of the approved general plans or schemes of the settlement territory.
In violation of these norms, the local executive body issues resolutions on changing the RAP, violating the rights of bona fide land users.
When considering claims against these rulings, the courts should pay attention to the degree of development of the land, the presence of interested parties, and compliance with the principle of proportionality.
For example, the courts of Astana satisfied Malgeldinov's claim for recognition as illegal and cancellation of the decree of the Akimat of Nur-Sultan on the adjustment of the RAP. In the case, it was established that the adjustment was carried out without taking into account the opinion of the public, in the absence of justifications for the adopted architectural and planning decisions and information on the recalculation of previously approved technical and economic indicators on the scale of the boundaries of the RAP, in violation of the mandatory norms of the Law on Architecture, as well as the requirements of the National Assembly of the Republic of Kazakhstan 3.01-00-2011 "Instructions on the development procedure, coordination and approval of urban development projects in the Republic of Kazakhstan".
The land plot had not been used for its intended purpose for eight years, there was no control by the authorized bodies, and repeated, unjustified adjustments to the RAP were the result of this inaction.
It should be noted that on July 1, 2023, amendments to the Land Code came into force concerning the specifics and conditions of the provision of land plots, depending on the requested purpose, the procedure for granting the right to a land plot within the city of republican significance, the capital, cities of regional and district significance, changes in the purpose of land plots.
The cases include incorrect determination and clarification by the court of the circumstances of the case that are important for the correct resolution of the dispute, incorrect interpretation and application of the norms of land legislation, errors in the assessment of evidence, violation of the norms of procedural law.
When resolving disputes arising from land relations, the courts need to ensure strict compliance with the norms of substantive and procedural law.
The courts of first instance should pay special attention to the quality of the preparation of the case for the preliminary hearing, to clarify the subject of the dispute, the resolution of which will actually restore the violated right of the plaintiff, and will not entail further red tape and new disputes.
For all land disputes, it is necessary to request and attach to the case file schemes of disputed land plots in color with indication of cadastral numbers, if necessary, land registry files.
For the completeness of the study, the courts should travel to the site with the involvement of a specialist land surveyor to record the established circumstances in an appropriate conclusion.
It is necessary to exclude the acceptance for production and consideration on the merits of claims for which the procedural deadline for filing has expired and missed without valid reasons, as well as claims that do not contain the subject of administrative proceedings, since such violations significantly increase the burden on the courts of all instances in general.
To draw the attention of the courts to the need to use conciliation procedures in resolving land disputes.
Judicial practice in certain categories of disputes
An analysis of judicial practice has shown that lawsuits in the following categories are most widespread:
- disputes over the legality of granting the right of private ownership and temporary land use to land plots;
- disputes related to the refusal of the Akimat to extend the lease agreement with the land user;
- disputes over changes in the purpose of land plots.
Compliance with the deadline for filing a claim in court
Basically, the plaintiffs filed lawsuits challenging the decisions of the local executive body on granting the relevant right to land plots.
In accordance with the first part of Article 136 of the CPC, claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.
If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
A person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of the administrative act, but not later than one year from the date of its adoption (part 5 of Article 136 of the CPC).
The analysis showed that local courts most often make mistakes in the procedural law related to the restoration of the specified pre-trial period.
For example, by the decision of the SMAS of the North Kazakhstan region dated February 10, 2022, Amrin's claim to the akimat of Akzhar district was satisfied. The resolution of July 23, 2009 on granting the right to a land plot to Akzhar-Nan LLP was canceled.
By the decision of the Court of the Institute of Appeal dated May 19, 2022, the court's decision remained unchanged.
The courts established that by a decree of the Akimat dated September 8, 2003, the plaintiff was granted the right to temporary shared land use for a period of 49 years for farming a land plot.
The local courts proceeded from the fact that the right to the land plot was granted to the Partnership without the consent of the plaintiff, and therefore the establishment was declared illegal.
By the decision of the SCAD of the Supreme Court of December 22, 2022, judicial acts of local courts were canceled, since the courts of first and appellate instances, when resolving the dispute on the merits, did not take into account that the plaintiff was not a participant in the administrative procedure. The disputed resolution transferred the right of land use to the Partnership.
The decision was issued on July 23, 2009, and the deadline for filing a claim to challenge it for a person who did not participate in the administrative procedure for its adoption, including Amrin, expired on July 23, 2010 (No. 6001-22-00-6ap/1467).
The local courts, in violation of the above-mentioned provisions of the procedural law, restored to the plaintiff the time limit, which is suppressive, and considered the merits of the claim to be refunded.
The courts should keep in mind that the norm of part 5 of Article 136 of the CPC is mandatory and the one-year period provided for by it is suppressive and cannot be restored.
In accordance with part 8 of Article 136 of the CPC, the inability to restore the expired time limit for going to court is the basis for returning the claim. For the same reasons, the Court of cassation annulled the judicial acts of the SMAS of the Pavlodar region dated October 5, 2021 and the SCAD dated March 10, 2022, issued in the lawsuit of the Altyndos Agricultural Company against the akim of the Zangar rural district of the Pavlodar district of the Pavlodar region on recognition as illegal and cancellation of the decision on granting land use rights.
The claim has been returned (No. 6001-22-00 6ap/1017). The courts, resolving the dispute on the merits, did not take into account and did not give a proper legal assessment to the fact that the procedures for granting the right of land use to the disputed land plot of the farm "Urazbaev" took place in 2006-2008. The administrative claim was filed on August 6, 2021. At the same time, the plaintiff KH "Altyndos" was not a participant in these procedures. Similar violations occurred in all regions of the republic. There are cases of significant violations of the procedural law when the time limits for filing a claim are restored, when the plaintiffs, being participants in the administrative procedure, challenge administrative acts issued long before the introduction of the APPC.
The grounds for reinstating a missed deadline should be exceptional, and the courts should not facilitate the abuse of law by plaintiffs who knew or could have known about the violation of their rights.
The courts of appeal should take into account that if the court of first instance accepts the claim and considers it on its merits with a decision, from the stage of appeal, taking into account the provisions of Article 126 of the CPC, it can be returned only after the suspension period has been passed.
In other cases, the case is considered by the appellate instance on the merits. However, if the time limit is restored by the court in the absence of sufficient grounds, the protection of the violated right may be denied upon the fact of abuse of the right.
Jurisdiction of disputes
For example, the SMAS of the Turkestan region received administrative lawsuits from the Turkestan Region Land Inspection Department challenging the decisions of the Akim of the city, district, and aul (rural) district, meaning a dispute arose between government agencies.
The Judicial Board of the cassation instance clarified on the issue that has arisen that if the parties to the cases are two state bodies that are equivalent in status (they belong to organizations of state power that carry out on behalf of the state on the basis of the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan on the management and regulation of socially significant public relations, control for compliance with the generally binding rules of conduct established by the state), and argue among themselves in the interests of the state, and not in the interests of individuals (legal entities) or an indefinite circle of persons, in this case such claims will not be considered in administrative proceedings.
There are also questions about the claims of the MIO to the authorized land management bodies to challenge the regulations submitted to them.
Taking into account that the order of the authorized body on the elimination of violations of the requirements of land legislation is an administrative act and, by virtue of paragraph 3 of Article 146 of the Land Code, is mandatory, the subjects of verification have the right to appeal it in the order of administrative proceedings.
For example: an order addressed to the akim of the district on the cancellation of the resolution on the provision of a land plot and bringing the guilty officials to justice is subject to challenge by the akim of the specified territorial unit.
At the same time, the claims of individuals and legal entities whose interests are indirectly affected by this regulation are subject to refund, since the appealed administrative act was issued against another entity.
For example: according to the claim of NauryzbayDamu LLP to the Department of Land Management of the Akmola region on the recognition of illegal actions to conduct an inspection, recognition as illegal and cancellation of regulations on the elimination of violations No. 95, 96 and 97 dated July 1, 2022 (No. 6001-22-00 6ap/2593).
Jurisdiction
When considering cases on disputes arising from land relations, compliance with the rules of jurisdiction, the filing of a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for resolving cases.
Jurisdiction is determined according to the rules of Articles 102 and 106 of the CPC.
At the request of the plaintiff, cases assigned to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases brought by specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
The analysis showed that most of the applications submitted to the courts were accepted in compliance with the rules of jurisdiction and did not cause certain difficulties for the courts.
State duty
The procedure for paying the state duty is regulated by the norms of the CPC and the Tax Code.
The state duty is paid in the amount established by subitems 2, 3 of paragraph 1 of Article 610 of the Tax Code, which is 0.3 monthly calculation index for individuals, 5 monthly calculation index for legal entities.
The issue of reimbursement of court costs is resolved in accordance with the requirements of Article 122 of the CPC and Articles 109, 115, 117 of the CPC.
In accordance with Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings.
By virtue of the second part of Article 122 of the CPC, when returning a claim on the grounds provided for in paragraphs 5), 6), 12), 13), 14) and 15) of the second part of Article 138 of this Code, court costs are not reimbursed.
In accordance with the second part of Article 142 of the CPC, if the plaintiff's application for the withdrawal of the claim is received in full at a court hearing or a preliminary hearing, the court explains the consequences of the withdrawal of the claim.
In other cases, the judge returns the claim without calling the participants in the administrative process with a refund of the state fee.
For example, the definition of the SMAS of the Akmola region dated March 14, 2022 returned Teremkova's claim to the akim of the city of Kokshetau for coercion to make a favorable act under subparagraph 6) of the second part of Article 138 of the CPC in connection with the withdrawal.
The state fee paid at the time of filing the claim was non-refundable, but in violation of the requirements of Article 122 of the CPC, it was refunded.
Such violations are not systemic in nature, in general, there were no problematic issues regarding court costs in the republic.
Legislation
The norms of substantive law, which were guided by the courts in resolving disputes of the generalized category, include the legislative acts currently in force.
The main regulatory legal acts regulating issues in the fields of the generalized category are:
The Constitution of the Republic of Kazakhstan;
Civil Code of the Republic of Kazakhstan dated December 27, 1994 No. 268-XIII (hereinafter referred to as the Civil Code);
The Land Code of the Republic of Kazakhstan dated June 20, 2003 No. 442 (hereinafter - CC);
4) Administrative Procedural and Procedural Code No. 350 VI dated June 29, 2020 (hereinafter referred to as the APPC);
5) The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM (hereinafter – CPC);
6) Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
7) Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95-IV;
8) Environmental Code of the Republic of Kazakhstan dated January 2, 2021 No. 400-VI;
9) The Law of the Republic of Kazakhstan "On Legal acts" dated April 6, 2016 No. 480-V;
10) The Law of the Republic of Kazakhstan "On State Property" dated March 1, 2011 No. 413-IV;
11) The Law of the Republic of Kazakhstan "On Local Public Administration and Self-government in the Republic of Kazakhstan";
12) 16) Regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial decision" dated October 2, 2003 No. 5;
13) Rules for maintaining the State land cadastre in the Republic of Kazakhstan, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2014 No. 160;
14) Rules for the implementation of land management works for the development of a land management project, approved by Order No. 379 of the Minister of National Economy of the Republic of Kazakhstan dated May 6, 2015;
15) Rules for the provision of public services in the field of land relations, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law "On Legal Acts", codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.
As a general rule, provided for in Article 4 of the Civil Code, Article 43 of the Law "On Legal Acts", regulatory legal acts apply to relations that have arisen after their entry into force.
Abbreviations used
SMAS - Specialized Interdistrict Administrative Court
SCAD - Judicial Board for Administrative Cases
MIO - Local executive bodies
AVF - Audio and video recording
RAP - Detailed planning project
SN RK - Building regulations of the Republic of Kazakhstan
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