Recognition of actions to refuse to change the purpose of the land plot as unlawful and the obligation to change the purpose of the land plot
The refusal to change the purpose of the disputed land plot is unjustified and the refusal of the local executive body to change its purpose is unmotivated. V. applied to the Mayor's Office of Astana to recognize the actions to refuse to change the purpose of the land plot as unlawful and the obligation to change the purpose of the land plot. The decision of the Saryarkinsky District Court of Astana dated July 29, 2013 denied the application. The decisions of the appellate and cassation judicial boards left the decision of the court of first instance unchanged. In the petition, the applicant requested to cancel the judicial acts that had taken place in the case with a new decision on the satisfaction of his application, pointing out violations of the substantive law. The applicant believes that the courts did not take into account that the court's decision, which entered into force, denied the claim to the akimat for the compulsory alienation of his land plot.
A cottage town is currently under construction on the site of the former horticultural society "Electric". He applied to the Akimat of Astana with a request to change the purpose of his land plot for individual housing construction, but was refused due to the fact that the land plot does not correspond to the area and configuration of the developed detailed planning project of the specified area. At the same time, it follows from the response of the State Institution "Department of Architecture and Urban Planning of Astana" (hereinafter referred to as the Department of Architecture) that part of its site was provided by the State Institution "Department of Energy and Utilities of Astana" (hereinafter referred to as the Department Bulletin of the Supreme Court of the Republic of Kazakhstan No. 3/2015 23 Energy) for survey, survey work, design and the construction of utility networks and roads to the cottage town, and some of them fall under individual housing construction. Thus, V. He believed that his land plot fell under the construction of an individual residential building, and therefore considered the resolution of the akimat illegal. He believed that the state body had violated his legitimate rights, which must be restored. Having examined the materials of the civil case and discussed the arguments of the petition, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the Supervisory Judicial Board) canceled the judicial acts in the case and issued a new decision to satisfy V.'s application by virtue of the following. According to article 278 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), a citizen and a legal entity have the right to challenge the decision, action (or inaction) of a state body, local government body, public association, organization, official, civil servant directly in court. In accordance with the first part of Article 279 of the CPC, decisions, actions (or inaction) of state bodies, local governments, public associations, organizations, officials, and civil servants challenged in court include collegial and individual decisions and actions (or inaction) that violate rights, freedoms, and legally protected rights. interests of citizens and legal entities; obstacles have been created to the exercise by a citizen of his rights and freedoms, as well as by a legal entity of his rights and legally protected interests; An obligation has been unlawfully imposed on a citizen or a legal entity or they have been unlawfully held accountable.
It follows from the case file that V. privately owns land plot No. 320, located in the horticultural society "Electric-12" in the Almaty district of Astana, with an area of 0.0852 hectares, intended for gardening (hereinafter referred to as the disputed land plot). By a court decision that entered into force on August 10, 2012, the Akimat of Astana was denied the seizure of the disputed land plot for state needs. In 2013, V. I applied to the Akimat of Astana with a statement on changing the purpose of the disputed land plot for individual housing construction. By the decree of the Akimat of Astana city dated May 6, 2013, V. was refused to change the purpose of the disputed land plot due to the fact that the disputed land plot does not correspond to the area and configuration of the developed detailed planning project of the specified area. The court of first instance, with the conclusions of which the appellate and cassation judicial boards agreed, rejecting V.'s application. He declared the actions of the Akimat of Astana illegal, motivated by the fact that the disputed land plot is located within the boundaries of the plots intended for the construction of a road and a cottage town. The Supervisory Judicial Board considered the conclusions of the local courts to be illegal, not based on the case materials and the norms of the substantive law. Thus, in accordance with the requirements of paragraph 1 of Article 49-1 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC) (as amended at the time of the dispute), the change in the purpose of a land plot is carried out by local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance within their competence to grant rights to land plots established by the Land Code. According to paragraph 5 of the said article of the CC, a refusal to change the purpose of a land plot must be motivated. The Mayor's Office of Astana, refusing to change the purpose of the disputed land plot, argued that the disputed land plot does not correspond to the area and configuration of the developed detailed planning project of the specified area. However, from the letters of Astanagorarchitecture LLP dated June 5, 2012 and the Architecture Department dated July 7, 2011 and April 30, 2013, it follows that part of the disputed land plot (0.4 sq. m and 389.0 sq. m. m) falls within the boundaries of the allotment provided to the Department of Energy for conducting surveys, survey work, design and construction of engineering networks for individual housing and cottage town (based on the resolution of the Akimat of Astana dated May 20, 2010 for a period of 3 years), and part of the disputed land (383.9 sq. m. m and 78.8 sq. m) falls under the construction of an individual residential building, respectively, K. and G. According to the detailed planning project "Draft layout of a cottage town east of Manas Street, north of the Yesil River", approved by the decree of the Akim of Astana on August 22, 2007, a cottage town is planned to be located on the territory of the land plot B. The purpose of land plots intended for the construction of houses is the construction and operation of an apartment building.
In accordance with the letter dated November 27, 2013 from the Department of State Architectural and Construction Control and Licensing in Astana (hereinafter referred to as the Department), the Department of Energy was granted permission in 2006 to carry out preparatory work for the start of construction and installation work, which was extended without the right to start construction and installation work.On September 5, 2012, the Department of Energy applied to the Department for permission to carry out construction and installation work. However, the application was refused due to the completion of construction without a permit, explaining the need for an inspection of the technical condition of structures and systems. Due to the amendments made to the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction activities in the Republic of Kazakhstan", the issuance of permits for construction and installation work has been replaced by a notification procedure. As of November 27, 2013, the Department of Energy had not notified the Department about the start of construction and installation work. Thus, part of the disputed land plot of V. falls under the construction of an individual residential building, and part is for conducting surveys, survey work, design and construction of engineering networks to individual housing and a cottage town, which have not yet been completed. According to the case file, the disputed land plot was acquired by V. in 2003, used by him for its intended purpose, the land plots within the boundaries of which the disputed land plot is located are intended for the construction and operation of residential buildings. In connection with the above, the supervisory judicial board considered that the refusal to change the purpose of the disputed land plot was unreasonable and did not comply with the requirements of Article 49-1 of the CC. Moreover, the refusal of the local executive body to change the purpose of the disputed land plot is not motivated. In accordance with the first part of Article 8 of the CPC, everyone has the right, in accordance with the procedure established by the CPC, to apply to the court for protection of violated or disputed constitutional rights, freedoms or legally protected interests. By virtue of the first part of Article 282 of the CPC, the court, recognizing the application as justified, makes a decision on the obligation of the relevant state body, local government body, public association, organization, official or civil servant to eliminate in full the violation of the rights, freedoms and legally protected interests of a citizen and a legal entity. Under such circumstances, the actions of the Mayor's Office of Astana to refuse to change the purpose of the land owned by V. were recognized as illegal. The supervisory judicial Board ordered the Akimat of Astana to eliminate in full the violation of the rights of V. From the Akimat of Astana in favor of V. 519 tenge was collected for reimbursement of the state duty.
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