On declaring illegal and canceling the defendant's reasoned refusal and imposing the obligation to eliminate the violation by agreeing on a draft
No. 6001-24-00-6ap/1920 dated January 23, 2025
Plaintiff: L.B.
Respondent: KSU "Department of Urban Planning and Urban Studies" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition as illegal and cancellation of the defendant's reasoned refusal dated September 19, 2023 and the obligation to eliminate the violation by agreeing on a draft design.
Review of the defendant's cassation complaint PLOT:
L.B. owns an indivisible land plot with an area of 0.0041 hectares, with the intended purpose: a store located at the address: city of A., on T. Street.
On February 16, 2023, the plaintiff was given an architectural and planning assignment (hereinafter referred to as the APZ) for the design of the store's construction.
On March 30, 2023, the plaintiff applied to the defendant for approval of the draft design of the store in a block-modular design.
On April 13, 2023, the plaintiff received a reasoned refusal due to the need to provide a master plan and a center plan made on a topographic basis on an appropriate scale, indicating the projected and existing (preserved and subject to demolition) buildings, structures, other structures, engineering and transport communications, landscaping elements and perennial green spaces, drawing existing and planning marking of the territory, the need to adjust the master plan with the boundaries of the act, and also in connection with the need to hold public hearings with residents.
In response to her two repeated requests with a similar statement, the plaintiff again received reasoned refusals dated August 01 and September 19, 2023 due to the failure to eliminate the comments indicated in the response dated April 13, 2023.
The plaintiff, disagreeing with the refusal to approve the draft design, appealed to the court with the above-mentioned claim.
Judicial acts:
1st instance: the claim is partially satisfied. It was decided to declare illegal and cancel the reasoned refusal of the Department dated September 19, 2023.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: in accordance with paragraph 2 of Article 13 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan", public hearings are assigned directly to the local executive body. Also, the Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules), do not provide for the obligation of the person applying for approval of the draft design to provide the defendant with information about public hearings.
The draft submitted by the plaintiff contained a 1:5000 scale situational diagram, a 1:500 scale general plan of the facility, a 1:500 scale engineering network plan on a topographic survey, a 1:500 scale store plan and a 1:500 scale roof plan, in addition, the facades and section of the building are presented.
The courts correctly indicated that in a reasoned refusal dated September 19, 2023, the defendant refuses to provide source materials for the reconstruction (redevelopment, re-equipment) of premises (individual parts) of existing buildings and structures related to the modification of load-bearing and enclosing structures, engineering systems and equipment, referring to paragraph 41 of the Rules, whereas in the plaintiff's statement As of September 5, 2023, there was no requirement to issue APS.
The decision of the specialized interdistrict administrative court of the city dated August 24, 2022, which entered into force, obliges the defendant to issue the APZ to the plaintiff.
Therefore, the courts came to the correct conclusion that the defendant formally indicated in a reasoned refusal to eliminate the comments given in the reply dated April 13, 2023, and to refuse to issue APS with reference to paragraph 41 of the Rules.
The grounds for refusal to approve the draft design do not fall under the list of conditions specified in paragraph 54 of the Rules.
These and other arguments of the courts are set out in detail in the contested judicial acts.
Since the circumstances of the case were established correctly, and the rules of law were applied correctly by the court of appeal, the collegium found no grounds for canceling or changing judicial acts.
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