On the recognition as illegal of a reasoned refusal to issue an architectural and planning assignment for the construction of an apartment building on a land plot
6001-22-00-6ap/1479 dated 05.01.2023
Plaintiff: T.M.
Respondent: KSU "Department of Urban Planning and Urban Studies of Almaty city"
The subject of the dispute: on the recognition as illegal of a reasoned refusal to issue an architectural and planning assignment for the construction of an apartment building on a land plot
Review of the plaintiff's cassation complaint PLOT:
The plaintiff is the owner of the land plot under the purchase and sale agreement dated November 29, 2016. The land plot with an area of 0.0815 hectares with cadastral number 20-313-060-114 is located at the address: Almaty city, Bostandyk district, Aktobe microdistrict, Raugash Street, plot 41.
On July 1, 2021, the plaintiff applied to the defendant for the issuance of an architectural and planning assignment for the construction of an apartment building on this land plot.
On July 2, 2021, he received a reasoned refusal on the grounds that, according to subparagraph 3 of paragraph 41 of the Rules for the Organization of Development and Passage of Licensing Procedures in the field of construction dated November 30, 2015 No. 750, there is no possibility of providing the specified public service due to the inconsistency of the planned construction with the approved master plan, detailed planning project or scheme of development and development of settlements.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The Judicial Board concludes that the arguments of the cassation appeal are identical in their content, meaning and purpose to the arguments given in the administrative claim, the appeal and the explanations of the plaintiff's representative who participated in the court session of the court of cassation. These arguments have been thoroughly studied in the courts of the first and appellate instances and given a proper legal assessment. The cassator did not provide any new arguments that could serve as a legal basis for reviewing the contested judicial acts.
The courts motivated the refusal of the claim by the fact that: 1) at an on-site court hearing it was established that the plaintiff's land plot is located in the water protection strip of the Ye River, on which a two-storey building was erected without a permit. The distance from the edge of the wall of the building to the mouth of the river (cliff down) is no more than three meters; 2) the plaintiff's arguments that the land
the site is located at a distance of 27 meters from the mouth of the river, which does not correspond to reality, since it takes into account the distance from the mouth of the river (cliff down) in depth to the place where the river flowed at the time of the inspection. However, it must be borne in mind that the river is mountainous and during floods, the water in its channel can rise, therefore, the countdown must be carried out precisely from the place where the cliff begins.; 3) the plaintiff's land plot is located in the recreational zone P-4 (an open space zone (rivers, reservoirs, coastal strips) in the water protection zone of the Ye River, while the law prohibits the construction of a residential building in such a zone. Accordingly, the actions of the defendant contested by the plaintiff did not violate his rights and legitimate interests. In addition, the court has not been provided with evidence confirming the creation of obstacles to the plaintiff's exercise of his legitimate interests.; 4) the existence of another judicial act on a similar object referred to by the plaintiff cannot serve as a basis for the defendant to issue a permit for the construction of an apartment building due to the location of the plaintiff's land plot in the recreational zone P-4.
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