On recognition as illegal and cancellation of the architectural and planning task, on recognition as illegal and cancellation of the decision on reconstruction
No. 6001-24-00-6ap/3170 dated May 20, 2025
Plaintiff: PKSK "A" (hereinafter – PKSK), AA.
The defendants: 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 architectural and planning assignment dated December 28, 2023;
on recognition as illegal and cancellation of the decision on reconstruction dated December 12, 2023.
Review of the plaintiff's cassation appeal
PLOT: From the circumstances of the case, it can be seen that LLP "A" is the owner of non–residential premises No. 55 with a total area of 103.60 sq.m., located in a four-storey apartment building (hereinafter - MZhD) at the address: city, district, B street/corner of Z street, house
№136.
According to the application of LLP "A" dated December 8, 2023, the Management issued a decision no.08.1-18-2081 for the reconstruction (redevelopment, re-equipment) of premises (individual parts) of existing buildings related to the modification of load-bearing and enclosing structures, engineering systems and equipment, for non-residential premises with internal redevelopment (hereinafter referred to as – Management decision dated December 12, 2023).
On December 28, 2023, architectural and planning assignment No. KZ6 (hereinafter referred to as APZ) for the reconstruction of non-residential premises with internal redevelopment was approved. On February 6, 2024, LLP "A" submitted to the Management a notification of the start of work on the reconstruction of the premises. PKSK and AA (a resident of the Moscow Railway) filed a lawsuit to overturn the Management's decision of December 12, 2023 and the APZ.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remained unchanged.
Cassation: the decision of the appeal is overturned.
The case has been sent for new consideration to the court of appeal in a different composition of the court.
Conclusions: the local courts, rejecting the claim, proceeded from the fact that LLP "A" received all permits in accordance with the procedure provided for in the "Rules for the organization of development and passage of licensing procedures in the field of construction", approved by Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules).
The conclusions of the court of appeal on leaving the decision of the court of first instance unchanged are premature and are based on an incomplete clarification of all the circumstances relevant for the proper resolution of the case.
According to Article 224 of the CPC, the court's decision must be lawful and justified.
The court bases its decision only on the evidence presented by the parties and examined at the court session.
In accordance with the fifth part of Article 226 of the CPC, the reasoning part of the decision indicates the arguments for which the court rejects certain evidence.
Judicial acts of local courts do not meet the specified requirements. Their study has shown that they are based only on the arguments of the defendant and the Partnership.
The courts limited themselves to discussing the procedure for issuing permits to the Partnership.
At the same time, it is not taken into account that the plaintiffs dispute the legality of the grounds for issuing these documents and their non-compliance with the requirements of the above standards regarding the reconstruction (redevelopment, re-equipment) of non-residential premises in residential buildings. However, the plaintiffs' arguments have not been investigated or refuted, and accordingly they have not been given a legal assessment.
In such circumstances, the decision of the court of appeal is subject to cancellation, and the case is sent to the same court for a new hearing.
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