On the cancellation of the order of the Department of State Architectural and Construction Control on the elimination of violations
No. 6001-24-00-6ap/1823 dated February 18, 2025
Plaintiff: N-I LLP
Respondent: State Institution "Department of State Architectural and Construction Control of Akimat" (hereinafter - UGASK)
Interested parties: LLP "A", E.M.
The subject of the dispute: the cancellation of the regulation on the elimination of violations dated June 26, 2023
Review of the cassation appeal of the persons concerned PLOT:
On December 10, 2019, a contract was signed between the plaintiff (contractor) and LLP "A" (Customer) for the development of a draft and working draft for the Facility: "Construction of a multi-storey residential building on K. Street in the city of T.".
In June 2023, based on a collective appeal from citizens, the defendant – UGASK conducted an unscheduled inspection of the plaintiff for compliance with the requirements of legislation in the field of architectural, urban planning and construction activities.
Based on the results of the audit, an act on its results was drawn up and an order was issued on June 26, 2023, which prescribes: "To bring the working draft into line with state standards regarding fire safety. Deadline for elimination: August 1, 2023."
Having disagreed with the act on the results of the inspection and the order, the plaintiff appealed to the court with the claim in question, arguing that in the act on the results of the inspection the defendant is guided by Appendix 2 of the SNiP RK 2.02-05-2009 "Fire safety of buildings and structures", which is no longer valid, whereas the preliminary design of the Facility has been approved by the State Department architecture and urban planning of the city of T.". A working draft has been developed, which received a positive conclusion from the RSE "Gosexpertiza". On December 29, 2022, the customer was notified of the start of construction and installation work with reference to the working draft for the facility. In this connection, the plaintiff considered that the defendant did not have the right to conduct this inspection, went beyond his competence, therefore, his act on the results of the inspection and the order are illegal.
Judicial acts:
1st instance: the claim was satisfied, the UGASK order on the elimination of violations dated June 26, 2023 was declared illegal and canceled.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case have been annulled. A new decision has been made – the satisfaction of the administrative claim of N-I LLP to the State Administration of State Architectural and Construction Control of the Akimat on the cancellation of the instruction on the elimination of violations dated June 26, 2023 was refused.
Conclusions: within the meaning of paragraph 4 of Article 144 of the Criminal Code, an unscheduled inspection is an inspection appointed by a control and supervisory body on specific facts and circumstances that served as the basis for the appointment of an unscheduled inspection in relation to a specific subject (object) of control and supervision, in order to prevent and (or) eliminate an immediate threat to human life and health, the environment, legitimate interests of individuals, legal entities, and the state.
The grounds for an unscheduled inspection of subjects (objects) of control and supervision are appeals from individuals and legal entities for violations of the requirements of the legislation of the Republic of Kazakhstan if there are convincing grounds and supporting evidence (subparagraph 3) of paragraph 5 of Article 144 of the PC).
Within the meaning of paragraphs 1 and 2 of Article 156 of the Criminal Code, inspections are considered invalid if they are conducted in gross violation of the requirements for their organization and conduct established by this Code.
Such gross violations include:
lack of grounds for conducting an audit;
absence of an act on the appointment of an inspection;
absence of notification, as well as non-compliance with the deadline for notification of the start of the audit;
violation of the requirements of Article 151 of this Code;
violation of the frequency of verification for compliance with the requirements specified in the regulatory legal acts approved in accordance with Article 141 of this Code;
failure to submit to the subject of control and supervision an act on the appointment of an audit;
appointment by the control and supervisory authorities of inspections on issues outside their competence;
conducting an inspection without registering an inspection report with an authorized body in the field of legal statistics and special accounting, when such registration is mandatory;
violation of the terms of the audit provided for in Article 148 of this Code;
conducting preventive control with a visit to the subject (object) of control and supervision without conducting preliminary preventive control without visiting the subject (object) of control and supervision in accordance with paragraph 5 of Article 131 of this Code.
Firstly, the basis for the plaintiff's verification was a collective appeal with supporting documents attached, which complies with the conditions of paragraph 4 and subparagraph 3) of paragraph 5 of Article 144 of the PC.
Secondly, the courts justified their conclusions by the fact that the defendant, contrary to the requirements of the third part of Article 41 of the CPC, performed functions not provided for by law by the contested act. However, such a conclusion is untenable, since the violation imputed to the plaintiff in the form of non-compliance with the fire-fighting distance from an apartment building (MZHD) on 83 K. Street to an individual apartment building on 85 K. Street was established when checking the plaintiff's activities for compliance with the requirements of the Law.
Paragraph 1-1 of Article 31 of the AGSD Law stipulates that state supervision in the field of architectural, urban planning and construction activities is the activity of the state body of architectural and construction control and supervision to verify compliance by the subjects of supervision with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities with the right to apply rapid response measures provided for in Article 31-3 of this Law, without initiating administrative proceedings.
The subjects of supervision are, among other things, legal entities that are required to comply with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
In accordance with subparagraph 6) of paragraph 3 of Article 31-1 of the AGSD Law, State Architectural and Construction Control and supervision is carried out over the timeliness and correctness of execution of executive documentation.
Subparagraph 2) of paragraph 4 of Article 31-1 of the Law states that when violations of state standards and (or) deviations from approved projects (design decisions) are detected, the state architectural and construction control and supervision authorities make decisions (issue instructions) on the elimination by the customer (developer) and (or) the contractor construction and installation organization (enterprise) violations committed within the established time frame.
In addition, according to subparagraph 4) of paragraph 3 of Article 33 of the AGSD Law, the State Architectural and Construction Inspectorate is charged with taking measures established by law in relation to legal entities and officials who have committed violations that cannot be eliminated or have not eliminated the violations committed within the established regulatory time frame.
If violations of state standards and (or) deviations from approved projects (design solutions) are detected, the State architectural and Construction Inspectorate issues instructions on the elimination of violations by the customer (developer) and (or) the contractor construction and installation organization (enterprise) within the established time frame.
In accordance with paragraph 1 of Article 17 of the AGSD Law, violations of the norms and requirements (conditions, rules, restrictions) established by the legislation on architectural, urban planning and construction activities committed by its subjects entail liability provided for by the laws of the Republic of Kazakhstan.
These violations include:
deviation from the established procedure for the development, examination and approval of design (design and estimate) documentation, as well as deviation from the documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan or making changes to it without the permission of the approving authority (subparagraph 9);
non-compliance with state standards in the field of architecture, urban planning and construction, ..., as well as labor protection, fire and explosion safety, sanitary and environmental safety, ... during the design, examination, construction and subsequent operation of the facility.
Thus, an analysis of the above-mentioned norms of the AGSD Law showed that the defendant, represented by UGASK, is a state-authorized body that has the right to inspect entities operating in the architectural, urban planning and construction sectors, including the plaintiff, as a contractor for the development of a work project for compliance with state standards, including in the field of fire safety, during the design process. There is no other interpretation of the above-mentioned norms of the law from their meaning.
Thirdly, the courts based their conclusions on the fact that the defendant had to conduct an inspection for "the development of a project with violations that directly affect the strength, stability and reliability of the facility," according to the inspection results act, in fact, the defendant conducted an inspection on fire safety." However, this conclusion is also untenable, since the requirements for compliance with fire safety regulations must be directly taken into account during the development of the work project.
In particular, paragraphs 70-73 of the Rules for the organization of development and 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 (Rules No. 750), provides that the size of an apartment building and other buildings located on a fixed plot of land, determined by the individual developer independently, provided that their external dimensions (including height) ensure the established regulatory, sanitary, fire-fighting and technical gaps between these structures, as well as buildings on adjacent land plots.
Construction without approved design (estimate) documentation is not allowed, unless otherwise provided by Law.
Prior to the start of construction and installation work, the customer notifies the authorities carrying out state architectural and construction control and supervision about the start of construction and installation work.
The construction of facilities, with the exception of cases provided for by Law, is carried out with mandatory supervision of copyright and technical supervision, in accordance with the design (design and estimate) documentation that has been duly reviewed.
It was established that, according to the working draft, the degree of fire resistance of the MZHD under construction was determined to be II, and the distances from the facility under construction to buildings along P. 29/1 Street were 6 meters, and to an individual residential building along K. 85 Street was 6 meters. At the same time, according to the design characteristics and technical data sheets of these adjacent facilities, their approximate degree of fire resistance has been established, which range from III or IV degrees of fire resistance, where the minimum distance, in meters, with the degree of fire resistance of the building according to Annex 6 to the Technical Regulations should be between II and III – 8 meters, between II and IV – 10 meters..
The study of the working draft showed that the specified fire safety requirements were not met.
Thus, having assessed the evidence available in the case, it should be stated that the UGASK order contested by the plaintiff was issued within the administrative discretion granted to him by law, on legal grounds, without gross violations, and is a proportionate administrative act, since it is aimed at preventing possible harm to life, human health and the environment, and the legitimate interests of individuals and businesses. legal entities.
According to the fourth part of Article 155 of the CPC, the court refuses to satisfy the claim if, upon its consideration, it finds that the contested action (inaction) has been committed, the decision has been made in accordance with the competence and legislation of the Republic of Kazakhstan.
In the aggregate of the above, the judicial board considered that the courts had come to the wrong conclusion about the satisfaction of the claim by not applying the applicable standards of industry and procedural legislation. This circumstance led to the issuance of unlawful judicial acts by them, which led to their cancellation with the issuance of a new decision to dismiss the claim.
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