Appealing against the actions of a state body

As can be seen, the appeal against the actions of local executive bodies is mainly caused by the refusal to grant ownership of the land plot, and the change in the purpose of the land plot is most relevant in the city of Almaty. By the Decree of the President of the Republic of Kazakhstan dated April 16, 2014 No. 798 "On changing the boundaries of the city of Almaty", part of the lands of the Almaty region was transferred to the territory of the city of Almaty. So, the owners of land plots appealed to the akimat of the city. Almaty with an application for changing the purpose of the land plot: from the intended purpose – for farming to the intended purpose – for the operation and maintenance of an individual residential building. However, the Akimat of Almaty, by its resolution, refuses to change the purpose, pointing out that according to the General Plan of Almaty and the plan for the implementation of urban planning regulations for the development of functional areas of the city. Almaty, approved by the decision of the XXVI session of the Maslikhat of Almaty of the III convocation dated November 20, 2006 No. 284, the land plot is located within the "red lines" of the street, whereas, according to the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", as well as the Land Code, the red lines, as As a rule, they are used to regulate the boundaries of development, and land plots occupied by mainline railway networks and public roads cannot be privately owned.

Appealing against the actions of a state body

The resolution of the Akimat of Almaty was issued taking into account the negative conclusion of the land commission. At the same time, the KSU "Department of Architecture and Urban Planning of Almaty city" submitted to the land commission an opinion on the land plot of the owner, from which it follows that according to the detailed planning plan of the annexed territory, the land plot is partially located within the red lines, and a change in the purpose of the land plot is possible up to the red lines., However, this conclusion was ignored when deciding whether to change the purpose of the land plot and the applicant did not clarify the issue of the possibility of adjusting the boundaries of the land plot to reduce the area. From the situational scheme presented by the KSU "Department of Architecture and Urban Planning of Almaty", it can be seen that the red line runs only through a small part of the land plot, without crossing it along, and is reserved for road expansion. Whereas at the time of the acquisition of the land plot, there were no red lines. At the same time, the owner did not object to the reduction of the land plot to the border of the red lines. In accordance with paragraph 1 of Article 109 of the Land Code, all lands of cities, towns, and rural settlements are used in accordance with their master plans, detailed planning and development projects (if any), and projects for the land management of the territory. From a fragment of the detailed layout of the annexed territories, it was seen that the owner's land plot was reserved for building individual low-rise residential buildings with private plots. The same follows from the duty plan-regulations (Plan for the implementation of urban planning regulations for the development of functional areas of the territory of Almaty), in which the location of the owner's land plot is marked by the type and type of functional zoning of the territory as residential areas, manor buildings. The courts concluded that the purpose of the land plot claimed by the applicant did not contradict the functional zoning of the territory on which it was located. In this regard, the court satisfied the statements of the owners on the recognition of illegal actions, the cancellation of the decision of the Akimat of Almaty, which was refused to change the purpose of the land. Another example. The court found the refusal of the Almaty city Akimat to provide the applicant with the right to a land plot to be unjustified, due to the fact that a detailed planning project had not been developed in this territory annexed to the city of Almaty, whereas at the time of the issuance of such a decision there was a detailed planning project. By the decision of the Bostandyk District Court of Almaty dated June 7, 2016, M.'s application for recognizing the actions of the Almaty Akimat as illegal and canceling the resolution of the Almaty Akimat was partially satisfied. It was decided to recognize as illegal the actions of the Akimat of Almaty, which refused to grant the right of private ownership of the land. The resolution of the Akimat of Almaty dated February 16, 2016 for No. 1/1-319 "On refusal to grant the right to land plots for gardening", paragraph 2 of the appendix, regarding the refusal to grant the right to private ownership of the land plot, was canceled. The court ordered the Akimat of Almaty to eliminate the violation in full and restore the violated the rights and legitimate interests of M. by re-examining the application for granting rights to the land plot within one month from the date of entry into force of the decision.

Appealing against the actions of a state body

As it was established, at the time of the contested resolution, there was a resolution of the Akimat of Almaty dated January 26, 2016 No. 1/26 approving the draft detailed layout of the annexed territories from the Almaty region to Almaty. Therefore, the refusal of the akimat on the grounds of the lack of a detailed planning project was declared illegal by the court. Z. appealed to the court to the akim of Kostanay to recognize the decision of October 14, 2014 on the refusal to provide a land plot as illegal. In support of the claim, he indicated that he had applied to the authorized body with a full package of documents to obtain a land plot for the maintenance of an apartment building at the address: Kostanay, 6, Solnechny passage, house 21. By Akim's Resolution No. 2710 of October 14, 2014, the provision of a land plot was refused due to the presence of buildings on the land plot, the title documents for which were not submitted. The court found that by the decision of the Executive Committee of the Council of People's Deputies of June 18, 1990, the applicant was provided with a residential one-story house with a land plot of 491 square meters, with outbuildings.  The plaintiff's ownership of an apartment building and two sheds located on a disputed land plot are registered with the registration authority in accordance with the established procedure. The summer kitchen and garage are under registration. The sauna, built in 2014, has no registration. According to paragraph 5 of Article 26 of the Land Code, it is not allowed to refuse to grant ownership to citizens and non-governmental legal entities of state-owned land if, in accordance with this Code, these land plots may be privately owned. In satisfying the plaintiff's claim, the courts proceeded from the circumstances that the disputed bathhouse was not an unauthorized building, since the applicant had been granted the appropriate permit by the Department of Architecture and Urban Planning of Moscow for the placement and construction of the bathhouse. Kostanay, dated July 2, 2011, No. 989. The court's conclusions contain a reference to the provisions of paragraph 2 of Article 23 of the Land Code stating that private property of citizens of the Republic of Kazakhstan may include land plots provided (provided) for development or built up with residential buildings (structures, structures) and their complexes, including land intended for maintenance of buildings (structures, structures) in accordance with the Legislation of the Republic of Kazakhstan. with their purpose. 

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