On recognition as illegal and cancellation of the decision on refusal to grant the right of temporary land use

No. 6001-24-00-6ap/1485 dated January 14, 2025

Plaintiff: LLP "A"

The defendant: Akimat of the city

The subject of the dispute: on the recognition as illegal and cancellation of the decision on the refusal to grant the right of temporary land use to land plots, the obligation to eliminate in full the violations of rights, freedoms and legitimate interests by adopting an appropriate administrative act in the form of a resolution on granting the right of temporary land use to land plots

Review of the defendant's cassation complaint PLOT:

In December 2022, LLP applied to the mayor of the city with an application for an extension of the lease of 22 land plots allocated for the placement of newsagents of the K network, in accordance with paragraph 2 of Article 37 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Code).

On June 30, 2023, at a meeting of the city's land commission (hereinafter referred to as the Land Commission), it was decided to deny the plaintiff the right to temporary paid land use for the requested land plots for a new term.

The reason for the refusal was the finding of the requested land plots within the "red lines", which are used to regulate the boundaries of development, on which the construction of any buildings is not allowed.

In addition, it is stated that according to  Article 26 of the Code does not provide for separate ownership and land use of land plots occupied by public roads, as well as those intended for access to public land.

On October 23, 2023, the defendant issued a resolution according to which the plaintiff was denied the right to

19 land plots, on the grounds specified in the conclusion of the Land Commission.

Disagreeing with the said resolution, the LLP appealed to the court.

The local courts, partially satisfying the plaintiff's claims, indicated,

that in the period from 2009 to 2021, the Akimat repeatedly granted the right of temporary paid short-term land use for the requested 20 land plots, with the intended purpose "for the construction of a lightweight type (newspaper kiosk)."

The defendant's contested refusal to grant the right to temporary land use for a new term violates the principle of "protecting the right to trust."

The reasons for refusing to grant the requested right, in the presence of previous resolutions, are not sufficient and well-reasoned grounds for refusing to grant the right to land use. Kiosks do not block the passage for the free movement of pedestrians, they are not located on bike paths, thus the use of sites to the detriment of public interests has not been established. Consequently, the provisions of paragraph 3 of the article do not apply to the plaintiff.

26 of the Code, restricting the exercise of his rights to obtain land use rights

Judicial acts:

1st instance: the claim is partially satisfied. It was decided: to declare illegal and cancel the resolution of the Akimat dated October 23, 2023 regarding the refusal to grant LLP the right of temporary paid land use (new term) for land plots located in the city at the addresses ......To oblige the Akimat to eliminate the violations of the plaintiff's rights and legitimate interests in full within 1 (one) month from the date of entry into force of the court's decision, by fully and comprehensively reviewing the plaintiff's application for granting the right of temporary paid land use to land plots.

The rest of the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts are cancelled. A new decision was made in the case, and the claim was denied.

Conclusions: according to paragraph 2-2 of Article 37 of the Code, a temporary paid land user (tenant) of a land plot located within the city of republican significance, the capital, cities of regional and district significance, who has properly performed his duties, has, unless otherwise established by the laws of the Republic of Kazakhstan or a temporary (short-term, long-term) paid land use (lease) agreement, the right to conclude a contract for a new term in accordance with the procedure provided for in Article 44-2 of this Code, with the exception of the requirements established by subitems 2), 3), 4) and 7) of paragraph 4 of Article 44-2 of this Code, unless otherwise provided by this Code, provided that the boundaries of the land plot remain unchanged.

In accordance with the requirements of paragraphs 1-3 of Article 44-2 of the Code, the provision of land from the lands of the city of republican significance, the capital, the city of regional and district significance is carried out by the local executive body of the region, the city of republican significance, the capital, the city of regional significance and the akim of the city of district significance within their competence established by this Code.

The provisions of this article shall apply to exceptional cases provided for in paragraph 1 of Article 48 of this Code.

The municipality of the region, the city of republican significance, the capital, the city of regional significance, and the akim of the city of district significance must ensure strict compliance with approved master plans and detailed planning projects or layout schemes for the territory of settlements.

According to paragraph 1 of Article 48 of the Code, the provision of land plots or the right to lease land plots that are state-owned and not provided for land use is carried out at auctions (auctions), with the exception of the cases provided for in subparagraphs 1-21 of this paragraph.

All lands of cities, towns, and rural settlements are used in accordance with their master plans, detailed planning and building projects (if any), and projects for the land management of the territory.

Thus, the issue of granting land use rights is within the competence and authority of the MIO.

According to the requirements of paragraph 2 of Article 109 of the Code, land plots from public lands, with the exception of sidewalks and bicycle paths, may be provided to citizens and legal entities for temporary land use for the placement of lightweight structures (trade tents (pavilions), container sites for the separate collection of solid household waste and recycling points, kiosks, outdoor facilities (visual) advertising and other objects of the service), as well as electric charging stations without prejudice to public use. At the same time, the provision of plots of public land, including on roadsides (streets, driveways), for the placement of shopping markets, paid parking lots (car parks), with the exception of paid parking lots (car parks) located in the right-of-way lanes of the city of republican significance, the capital, in accordance with legislative acts on special status the city of Almaty and the status of the capital of the Republic of Kazakhstan are not allowed.

In accordance with the second part of Article 116 of the CPC, when resolving a dispute, the court is obliged to check the proportionality of the administrative act, whether the administrative body has not exceeded the limits established by the legislation of the Republic of Kazakhstan in exercising administrative discretion and whether it corresponds (proportionately) to the objectives of this authority.

At the same time, according to the second part of Article 157 of the CPC, the court does not verify the expediency of the contested administrative act, adopted within the limits of administrative discretion and in accordance with the competence provided by law.

Thus, expediency issues remain within the competence of the administrative body, which limits the court's intervention in the sphere of administrative discretion, except in cases of disproportionality.

The local courts did not take into account that when issuing the administrative act, the defendant acted within his administrative discretion, the contested decision is proportionate, that is, suitable, necessary and proportionate.

Based on the provisions of the above-mentioned requirements of the current legislation, the extension of the right of temporary land use is the right, but not the obligation of the defendant.

Considering that the previously contested right has been granted to the plaintiff since 2009 in the absence of exceptional grounds for granting land plots outside of competitive procedures, on sidewalks, within the boundaries of red lines and utilities, the judicial board finds the defendant's refusal to renew the lease right lawful and justified.

The defendant's arguments that the provision of land plots or the right to lease land plots that are state-owned and not provided for land use is carried out at auctions deserve attention.

The reference of the lower courts to the principle of protecting the right to trust is untenable, the right to trust cannot be a justification for committing illegal actions (inaction).

When considering the dispute, the courts entered into a discussion on the expediency of an administrative act, which is unacceptable, since this is the competence of an administrative body, without giving a proper legal assessment of the procedure and grounds for granting land plots to the plaintiff.

In these circumstances, the judicial board concluded that the claim was subject to rejection.

The inconsistency of the conclusions of the local courts with the circumstances of the dispute, the erroneous interpretation of the law by virtue of subitems, 4) of the first part of Article 427 of the CPC was the basis for the cancellation of the contested judicial acts.

Considering that the case did not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of first instance and the decision of the court of appeal and make a new decision to dismiss the claim.

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