In order to ensure safety, the main pipeline must be laid within the distance established by building codes and regulations

"KazTransOil" JSC (hereinafter-the plaintiff) filed an application to the court against the defendants zh., Akim of badam village of Sairam district, Shymkent City branch of land Cadastre, Department of architectural and construction Control and licensing of South Kazakhstan region, A., Department of Justice of South Kazakhstan region, invalidating the decision of Akim of badam village, the State Act granting private ownership of land, the act of acceptance of the object into operation, the demolition of the constructed construction objects at the expense of the owner, the sale No. 8-3346 of July 8, 2011 contract, a State Act granting the right of private ownership of a land plot, a certificate of cadastral registration, was requested to be invalidated. The plaintiff stated that in accordance with paragraphs 4.1, 4.3 of the rules for the protection of main pipelines, the distance from any construction objects to the main oil pipeline should not be less than 75 meters, and by the decision of the Akim of the village of badam, the defendant zh. indicated that the land plot of 800 square meters, provided for the construction of Housing and subsidiary farming from the Department of badam, Karl Marx, is only 25 meters from the oil pipelines, it is necessary to demolish the construction objects on this land plot in order to exclude the possibility of damage to oil pipelines.

In order to ensure safety, the main pipeline must be laid within the distance established by building codes and regulations

By the decision of the Abay District Court of Shymkent on March 29, 2012, the claim of "KazTransOil" JSC was partially satisfied and the demolition of construction facilities located 25 meters from the main pipeline was ordered at the expense of defendant A. The Appellate Judicial Board of the regional court left the court's decision unchanged. The court of Cassation, in turn, left the decision of the court of Appeal unchanged. Defendant A. applied to the supervisory Judicial Board of the Supreme Court with a request to cancel the judicial acts and send the case for a new consideration. The supervisory board checked the documents of the civil case and the motives of the application and concluded that the application is subject to partial satisfaction on the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. According to the case documents, by the decision of the Akim of the village zh. zh., a land plot of 800 square meters was transferred to private ownership for the construction of a residential building and subsidiary farming, where he received a State Act, registered it with the Department of Justice of the district, built a house there, which was accepted for use by the acceptance Commission through an act on the acceptance of the object. Under the purchase and sale agreement, zh. sold a small residential building and a land plot of 0.0394 hectares located in the second part of the land plot to A.

As a result of this, in accordance with the requirements of Article 118 of the code of criminal procedure, in case of partial satisfaction of the claim by the judicial instances, where A.'s ownership of this land plot arose, the defendants concluded that the structures owned by zh. and A. were not considered self-built, because the disputed construction was built on the basis of the decision of the Akim of badam rural district of Sairam district.  However, the supervisory judicial board does not agree with this conclusion of the courts. In accordance with Article 121 of the Land Code of the Republic of Kazakhstan, in order to ensure the safety of the population and create the necessary conditions for the operation of industrial, transport facilities and other facilities, zones are established, and activities that do not meet the goals of establishing zones are restricted or prohibited within them. Areas of land use on special conditions include security zones of main pipelines, communication, radio and electrical networks. "The Republic of Kazakhstan 3.05-01-2010 according to the requirement of Paragraph 2 of Table 2 of the instruction" building codes and regulations " (hereinafter referred to as snip), if the diameter of the oil pipeline of Class 2 is from 500 mm to 1000 mm, the oil pipeline should be classified as a high - risk facility, and the distance from the pipeline of 1-2-storey residential buildings should be 75 meters. It was established in court that defendant J. divided his land plot in half and sold his second dwelling, located on the side of the oil pipeline, to defendant A. through a purchase and sale agreement.  The housing belonging to the defendant A. is located at a distance of 42.80 meters from the main oil pipeline, and the additional building of the defendant Zh. is located at a distance of 65 meters, that is, the defendants ' housing was built in a 75-meter security area of the main pipeline, violating the requirements of the rules of building codes of the Republic of Kazakhstan. However, the courts, referring to paragraph 7 of the above-mentioned instructions, concluded that if the house and structures are located at a higher level than the oil pipeline, then the specified distance will be reduced by 25%.  As specified in Paragraph 8 of Article 14 of the law of the Republic of Kazakhstan" on the main pipeline", in order to ensure safety, it is forbidden to build any object that does not belong to the main pipeline within the minimum distance established by building codes and rules. The corresponding minimum distances from the shaft of underground and surface pipelines to settlements, separate industrial and agricultural enterprises, buildings, structures are determined by paragraph 3.16 of Snip 2.05.06-85 "main pipelines", and from May 1, 2011-5 of Snip 3.05.01 - 2010 "main pipelines".It is established by paragraph 3.9. As specified in Article 65 of the civil code, each party must prove the circumstances to which it refers as the basis of its claims and objections. Since the diameter of the Pavlodar-Shymkent pipeline is 820 mm, according to the above snip, the minimum distance from the pipeline to residential buildings of 1-2 floors should be 75 meters.

However, the courts concluded that the distance between the houses and structures is subject to a reduction of 25% due to the location above the oil pipeline. But the data proving that the disputed houses are located at a higher level than the oil pipeline are not specified in court rulings, no examination of the case was carried out to clarify these circumstances, and no relevant specialists were requested. The court of Appeal is limited to taking into account the answer of specialist B. It is not established whether this specialist has the necessary qualifications. Therefore, it is unreasonable for the appeal board to refer to the answer of this specialist. In such a context of the case, the supervisory judicial board considers it necessary to cancel the disputed judicial acts and send the case to the appellate instance for re-consideration. During the re-consideration of the case, the judicial board should eliminate the above shortcomings, in particular, conduct an examination to determine how far the disputed house was built from the oil pipeline, request qualified specialists in the case as interested parties, check the arguments of the parties in conflict, give them a legally correct assessment and make a legitimate and reasonable decision based on the circumstances. 

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