On recognizing motivated refusals to change the purpose of the land plot as illegal and oblige to eliminate the violations
No. 6001-22-00-6ap/1501 dated 05.01.2023
Plaintiff: K.A.
The defendant: Akimat of Almaty city, KSU "Department of Land Relations of Almaty city", KSU "Department of Urban Planning and Urban Studies of Almaty city"
The subject of the dispute: to recognize motivated refusals to change the purpose of the land plot as illegal and oblige to eliminate the violations
Review of the defendant's cassation complaint PLOT:
On November 13, 2017, the plaintiff purchased non-residential premises at the address: 50/1 Timiryazev Street, room 17, Bostandyk district, Almaty.
On September 30, 2021, the plaintiff was issued an act for the right of private ownership of a land plot, common joint, at the above address with cadastral number 20-313-012-203, with an area of 0.0005 hectares out of a total share of 0.0320 hectares, with the intended purpose "for the construction of a commercial facility and maintenance of non-residential premises."
On October 5 and November 8, 2021, the plaintiff applied to the Mayor of Almaty with a request to change the purpose of the land plot for
"operation and maintenance of an apartment building (apartment)" in connection with accommodation.
On October 21 and November 10, 2021, the plaintiff received two reasoned refusals based on his above-mentioned statements.
The defendant's first refusal was justified by the negative conclusion of the KSU "Department of Urban Planning and Urban Studies of Almaty city" dated October 07, 2021.
In the second case, it is the resolution of the Akimat of Almaty dated October 21, 2021 No. 4/494–939 on the refusal to change the target purpose, issued on the basis of a decision of the relevant land commission.
Judicial acts:
1st instance: the claim is partially satisfied.
Appeal: the decision remains unchanged.
Cassation: the decision and the resolution are cancelled, the claim is denied.
Conclusions:
The courts of first and appellate instances, partially satisfying the claims, and citing the norms of land legislation on the procedure and procedures for changing the purpose of a land plot, as well as the APPC regarding the requirements for an administrative act, believe that: in the letter of the Urban Studies Department dated October 7, 2021, which justified the first reasoned refusal of the Akimat, the reasoned reason for the impossibility of changing the purpose of the plaintiff's land plot is not indicated, and there is no information about the inconsistency of the land plot with the detailed planning draft, approved by the resolution of the Akimat of Almaty dated March 11, 2017 No. 1/84; found
the plaintiff's arguments that the requested purpose for the land plot actually corresponds to the RAP, since the land plot for an uninhabited building, in one of the premises of which the plaintiff lives, is located near "residential areas"; considering the facts of providing decisions on changing the purpose of the land plot, namely for the shares of individual owners of the premises, from an "administrative building" to an "apartment building", the defendant violated the principle of prohibiting abuse of formal requirements; in the motivated refusals of the akimat, there is only a reference to the conclusion of the Urban Studies Department, which in fact does not contain a clear justification regarding the impossibility of changing the purpose of the land plot.
The courts gave a legal assessment to the first refusal, as it does not contain a reasoned reason for the impossibility of changing the purpose of the land plot.
The second reasoned refusal dated November 10, 2021 stated that, based on the conclusion of the land commission, the Almaty City Akimat adopted Resolution No. 4/494-939 dated October 21, 2021 "On refusal to change the purpose of the land plot", including in relation to the plaintiff.
However, the courts did not investigate these arguments of the second refusal and left them without a proper legal assessment, whereas at the time of consideration of the case in the courts, the conclusion of the land commission and the resolution of the akimat had not been challenged or annulled by anyone.
The recognition as illegal and the cancellation of the motivated refusals disputed by the plaintiff, in fact, does not resolve the dispute and may lead to a new dispute and litigation.
There are no legal norms in the current land legislation that explicitly allow for the possibility of changing the purpose of a land plot for a commercial and public service facility that has already been erected and put into operation for the subsequent operation of a multi-storey, multi-apartment building instead, at least until the reconstruction of this building for residential purposes.
It has not been established that administrative authorities and officials have the administrative discretion (authority) to make such a change in purpose.
No one has disputed that the building with non-residential premises, in one of which the plaintiff lives, was designed, erected and put into operation as a commercial office building. The land plot was provided for him with the intended purpose "for the construction of a trade facility and maintenance of non-residential premises."
The courts have not provided arguments based on the norms of law as to whether it is lawful to divide the intended purpose of one land plot under
an object of trade and public services, in which the plaintiff, as the owner of non-residential premises, would have a land share with a purpose "for "operation and maintenance of an apartment building (apartment)," and other owners of non-residential premises land shares with a purpose "for the construction of a trade facility and maintenance of non-residential premises."
The Land Code does not explicitly provide for such a "mixed" purpose for one land plot.
The arguments of the RCD are substantiated that the Rules for the provision of public services "Granting permission to change the purpose of a land plot", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301, do not provide for a change in the purpose of a part of the land plot.
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