On the recognition of illegal and cancellation of the resolution of the Akimat of the city
No. 6001-23-00-6ap/1180 (2) dated 12/19/2023
Plaintiff: "OT" (hereinafter referred to as the Partnership)
The defendant: Akimat of the city (hereinafter – Akimat)
Interested parties: State Institution "Department of Architecture, Urban Planning and Land Relations", State Institution "Committee for Construction and Housing and Communal Services of the Ministry of Industry and Infrastructural Development of the Republic of Kazakhstan", State Institution "Department of Environmental Protection and Environmental Management", State Institution "Department of Control and Quality of the Urban Environment", LLP "Scientific and Research Design Institute "A"
The subject of the dispute: on recognition as illegal and cancellation of the resolution
Review of cassation complaints of the plaintiff and interested parties
PLOT:
According to the current General Plan for the development of the city until 2030, a residential area with a number of 5-9 floors is provided on the site of Prospect O., S., E., K., Zh streets.
On December 30, 2014, Akimat Resolution No. 120-2209 approved the territory's RAP, according to which a music school is planned to be located within the boundaries of O. Avenue, S., E., K., and Zh streets.
On September 26, 2017, an adjustment was made by Resolution of the Akimat No. 120-1927 RAP regarding the functional purpose of the facility from the "Music School" to the "Hotel and office complex of 7 floors".
Within the boundaries of the specified territory there is a land plot with cadastral number 21-320-128-1452, the owner of which is the plaintiff on the basis of the purchase and sale agreement dated March 12, 2020 No. 1699.
Based on the Partnership's application, by Resolution of the Akimat dated April 16, 2020 No. 510-678, the purpose of the land plot was changed from
"Hotel and office complex of 7 floors" to "Multi-apartment residential complex with built-in facilities and parking" of 16 floors.
On January 18, 2021, the NGO "Government for Citizens State Corporation" issued an act on the right of private ownership of a land plot.
On January 11, 2021, the Department of Architecture, Urban Planning and Land Relations approved an architectural and planning design assignment.
On September 20, 2021, the working draft received a positive conclusion from RSE Gosexpertiza.
On January 11, 2022, the Partnership was granted permission to raise money from shareholders, and equity participation agreements were concluded.
Since November 2021, the Partnership has begun construction of the facility (notification of the start of construction and installation works dated November 15, 2021).
By Resolution of the Akimat dated April 4, 2022 No. 510-980 (hereinafter referred to as the contested resolution), the adjustment of the RAP was approved, the functional purpose of the disputed land plot was changed from
"Multi-apartment residential complex with built-in facilities and parking" for "Park placement".
Judicial acts:
1st instance: the claim is satisfied.
It was decided: to declare illegal and cancel the resolution of the Akimat dated April 4, 2022 No. 510-980 "On Amendments to the Resolution of the Akimat dated December 30, 2014 No. 120-2209 "On approval of the draft detailed layout of the territory within the boundaries of Avenue O., streets S., E., K., Zh."
Appeal: the court's decision was overturned with the adoption of a new decision to dismiss the claim.
By a private ruling dated March 24, 2023, these violations were brought to the attention of the mayor of the city for appropriate action.
Cassation: judicial acts have been changed. The decision of the judicial board regarding the cancellation of the decision of the court of first instance on the recognition as illegal and cancellation of the resolution of the Akimat dated April 4, 2022 No. 510-980 "On Amendments to the resolution of the Akimat of Astana dated December 30, 2014
No. 120-2209 "On approval of the draft detailed layout of the territory within the boundaries of Avenue O., streets S., E., K., Zh." was canceled with the decision of the court of first instance remaining in force in this part.
The Mayor's Office of the city is responsible for re-conducting the administrative procedure for changing the RAP, taking into account the requirements of current legislation and the legal position of the court.
Conclusions: The court of first instance, satisfying the plaintiff's claims, indicated that the land plot located at 20/3 Prospect ME with the intended purpose of "Construction of an apartment complex with built-in facilities and parking" belongs to the Partnership on the basis of a purchase and sale agreement. According to the current Master Plan, a residential area is provided on this site.
The Court of Appeal, rejecting the claim, proceeded from the fact that the construction of a residential complex would lead to an additional burden on engineering networks. At the meeting of the working group on the organization of engineering, transport infrastructure and urban planning aspects of parts of the city on March 4, 2022, it was recommended to adjust the RAP in terms of changing the purpose of the land plot from residential development to a square.
The Judicial Board does not agree with the above conclusions of the court of appeal due to the following.
By virtue of the requirements of paragraphs 2, 3 of Article 26 of the Constitution of the Republic of Kazakhstan, property, including the right of inheritance, is guaranteed by law.
No one can be deprived of their property, except by a court decision. Compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out on condition of its equivalent compensation.
In accordance with parts 1,2 of Article 7 of the CPC, an administrative body or official carries out administrative procedures within its competence and in accordance with the Constitution of the Republic of Kazakhstan, this Code and other regulatory legal acts of the Republic of Kazakhstan.
When considering and resolving administrative cases, the court must strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, constitutional laws, this Code, and other regulatory legal acts subject to the application of international treaties of the Republic of Kazakhstan.
According to paragraph 1 of Article 20 of the Land Code, public and private ownership of land is recognized and equally protected in the Republic of Kazakhstan.
By virtue of paragraph 1 of Article 21 of the Code, the owner has the right to own, use and dispose of the land belonging to him.
In accordance with the provisions of Article 81 of the Code, the right of private ownership of a land plot or the right of land use is terminated upon alienation of a land plot by the owner or the right of land use by the land user to other persons; the owner renounces the right of ownership or the land user renounces the right of land use; loss of ownership of a land plot or the right of land use in other cases provided for by legislative acts of the Republic of Kazakhstan.
The same rule states that the seizure of land from the owner and the right of land use from the land user without their consent is not allowed, except in the following cases::
foreclosure on a land plot or the right of land use under the obligations of the owner or land user;
compulsory alienation of a land plot for state needs;
compulsory seizure from the owner or land user of a land plot that is not used for its intended purpose or is used in violation of the legislation of the Republic of Kazakhstan, in cases provided for in Articles 92 and 93 of this Code.;
compulsory alienation from the owner or land user of a land plot that has been exposed to radioactive contamination, with the provision of an equivalent land plot;
confiscation.
appeals to the state revenue of a land plot in accordance with the legislation of the Republic of Kazakhstan on the return of illegally acquired assets to the state.
It has been established in the case and is not disputed by anyone that the plaintiff is the rightful owner of the land plot.
By changing the RAP before resolving the issue of termination of ownership of the land plot and its equivalent compensation, the defendant effectively limited the plaintiff in the exercise of his property rights, the inviolability of which is protected and guaranteed by the Constitution of the Republic of Kazakhstan.
By virtue of Article 47-1 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law), urban development projects for certain parts of the territories of settlements (detailed planning projects) are developed on the basis of the general plan of the settlement, approved in accordance with the established procedure. Detailed planning projects are developed in accordance with the elements of the planning structure established in the general plans of settlements, urban planning regulations, and the concept of a unified architectural style. The concept of a unified architectural style is envisaged for the capital, cities of republican and regional significance.
Changes and additions may be made to the approved detailed planning project no more than twice a year, except in cases caused by the need to adjust the current detailed planning project in order to build social, cultural and unique facilities at the expense of budgetary funds.
The current General Plan of the city was approved by Resolution of the Government of the Republic of Kazakhstan dated August 15, 2001 No. 1064 with amendments and additions by Resolution of the Government of the Republic of Kazakhstan dated December 23, 2016 No. 848.
According to the Master Plan, the disputed land plot is located in a residential functional area.
By virtue of paragraph 1 of Article 49 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law), the residential area of a settlement is intended for development by multi–apartment residential buildings (houses) with equipped house territories and individual residential buildings with private plots.
In accordance with paragraph 18 of the Rules for the Development, Coordination and Approval of Urban Planning projects (detailed planning projects and building projects) - (hereinafter - Rules) The RAP of urban territories is coordinated with the territorial bodies of the authorized body in the field of environmental protection, city and regional bodies of sanitary and epidemiological supervision and fire safety, with structural divisions of the local executive body, other organizations defined by the Assignment and, after public discussion, approved by the relevant decision of the local executive body of the capital, cities of republican and regional significance.
In accordance with paragraph 35 of the Rules, if it becomes necessary to make changes and/or additions to the RAP, the customer or investor applies to the local executive body with an application for amendments and/or additions to the RAP, indicating the name of the facility and its technical and economic indicators.
According to paragraph 37 of the Rules, the development, coordination and approval of amendments and/or additions to the RAP is carried out in the same manner.
The courts have established, and the defendant does not dispute, that the current procedure for making the contested changes to the RAP has not been observed, the necessary approvals have not been received, and public discussions have not been conducted.
In accordance with subparagraph 6 of paragraph 3, paragraph 4 of Article 107 of the Functional Zone Code, a public garden may be located on public lands belonging to a different zone separate from residential.
The assignment of land plots to public lands on the lands of settlements, as well as exclusion from the composition of public lands in connection with a change in their intended purpose, are carried out by local executive bodies in accordance with their competence.
The defendant did not provide evidence of a change in the functional area of the disputed land plot to the court, in fact, the adjustment of the RAP was made without changing the purpose of the land plot.
When changing the RAP, the akimat did not take into account the existing land rights and the permits issued for the construction of the housing and communal services.
The violations of the norms of the current land legislation committed by the defendant were identified by the Committee during an unscheduled inspection, as a result of which an Order was sent to the defendant to eliminate the violations committed on April 7, 2022.
Taking into account the above, taking into account that the competence to develop and adjust detailed planning projects belongs to the competence of akimats, the judicial board considers that the defendant violated: the procedure for making changes to the current detailed planning project, the legitimate rights and interests of the plaintiff as the owner of the land, exceeded the limits of administrative discretion.
In these circumstances, the court of first instance correctly determined that the defendant had not provided evidence confirming the compliance of the amendments to the RAP with the general plan of the city, their validity, necessity, and compliance with the current procedure for development and approval.
Guided by the above-mentioned norms of the law, taking into account the actions of the defendant to coordinate the construction procedure, the court of first instance came to the correct conclusion that the contested resolution on the adjustment of the RAP was issued by the Akimat in violation of the requirements of the law and the limits of administrative discretion.
According to part 4 of Article 6 of the CPC, violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, entails the recognition of administrative acts, administrative actions (inaction) as illegal, as well as the cancellation of judicial acts.
By virtue of Part 1,2 of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests between the participant in the administrative procedure and the company.
At the same time, an administrative act or administrative action (inaction) must be proportionate, that is, appropriate, necessary and proportionate.
By virtue of the fourth part of Article 84 of the CPC, an illegal burdensome administrative act is subject to mandatory cancellation.
The conclusions of the court of appeal that when issuing the appealed decision, the defendant acted within the limits of administrative discretion are erroneous and do not correspond to the circumstances established in the case.
Violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, in accordance with the requirements of part four of Article 6 of the CPC, entails the cancellation of the judicial act.
The inconsistency of the conclusions of the court of appeal with the circumstances of the dispute, the erroneous interpretation of the law by virtue of subparagraphs 3), 4) of the first part of Article 427 of the CPC is the basis for the cancellation, amendment of the judicial act.
While upholding the decision of the court of first instance and canceling the decision of the court of appeal, the judicial board at the same time modifies both judicial acts.
Taking into account that the disputed land plot is subject to development, the judicial board, guided by the requirements of Article 157 of the CPC, considers it necessary to impose on the defendant the obligation to carry out the procedure for adjusting the RAP, taking into account the requirements of current legislation, the interests of the plaintiff and the legal position of the court.
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