On the recognition of actions for the protection of forests and wildlife expressed in the refusal to agree on the act of choosing a land plot as illegal
No.6001-23-00-6ap/191 dated 07/25/2023
Plaintiff: M.A.
Defendant: KSU "For the Protection of Forests and Wildlife" of the Department of Natural Resources and Environmental Management of the Akimat of the region.
The subject of the dispute is the recognition of the defendant's actions expressed in the refusal to agree on the act of choosing a land plot as illegal, forcing the defendant to agree on the act of choosing a land plot.
Review of the plaintiff's cassation appeal.
PLOT: By the decision of the akim of the city of the region dated December 20, 1995, the plaintiff was granted private ownership of a two-room apartment building with a total area of 63 sq.m., located at 3 Rybokhrana Street, the city. On January 3, 1996, M.A. was issued a certificate of ownership of apartment building No. 3187.
In 2011, the plaintiff's apartment building was flooded as a result of flooding of the territory with flood waters, which is confirmed by the Survey Act dated May 8, 2011. As a result of the survey, it was found that the floors, walls, and interior doors in the house need to be repaired.
Protocol No. 3 of the meeting of the commission for determining damage as a result of the spring flood in the city on May 25, 2011 declared M.A.'s house to be repaired. On June 24, 2021, the plaintiff applied to the local executive body for the provision of a land plot in private ownership, located at 3 Rybokhrana Street, city, for the maintenance of an existing residential building. The Land Commission issued a positive opinion on June 30, 2021.
On June 1, 2022, the plaintiff applied to the defendant for approval of the act of choosing a land plot. By letter dated June 16, 2022, the Institution refused to approve a land plot for the construction and maintenance of an apartment building with an area of 0.1 hectares located on the territory of the state forest fund.
Disagreeing with this refusal, the plaintiff filed this lawsuit with the court.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the court's decision is overturned, the claim is returned. Cassation: the ruling of the appellate instance was overturned, the case was sent for consideration on its merits.
Conclusions: In satisfying the plaintiff's claims, the court of first instance proceeded from the fact that the plaintiff is the owner of immovable property in the form of an apartment building and has the right to demand that he be granted the right of private ownership of the land plot under the apartment building.
The court of appeal, overturning the court's decision, returned the claim, arguing that in these disputed legal relations, the defendant does not have public authority over the plaintiff.
The institution is a forest owner, to whom, according to the act on the right of permanent land use dated November 17, 2003, the land plot was granted for permanent land use with the intended purpose "for forestry", including block 28, on the territory of which the plaintiff's apartment building was located.
In this regard, the claim is not subject to consideration in administrative proceedings. The conclusions of the court of appeal do not comply with the circumstances and requirements of the law established in the case. According to paragraphs 2 and 16 of Article 15 of the Forest Code of the Republic of Kazakhstan, local executive bodies of regions, cities of republican significance, and the capital organize and ensure the protection, protection, reproduction, and afforestation of forests, and regulate forest management on the territory of the state forest fund under their functional jurisdiction.
Exercise, in the interests of local government, other powers assigned to local authorities by the legislation of the Republic of Kazakhstan. executive bodies By virtue of the requirements of paragraph 4 of Article 44-1 of the Land Code of the Republic of Kazakhstan, a structural subdivision of a local executive body performing functions in the field of architecture and urban planning, within seven working days, in accordance with approved urban planning documents, prepares an act of selecting a land plot with its situational scheme, architectural and planning assignment, questionnaire for obtaining technical specifications, topography and sends them for approval simultaneously to all interested government agencies and relevant services., subjects of natural monopolies, State corporations through information systems of state bodies or on paper in the absence of these systems from the coordinating bodies. It follows from the above-mentioned norms of the current legislation that the Institution represented by the local executive body is the state body regulating forest management on the territory of the state forest fund, that is, it has public authority.
The Court of Appeal, having misinterpreted the requirement of the law, considered that the plaintiff and the defendant are forest owners and have equal rights to land plots.
The findings of the court of appeal are erroneous, since the defendant's refusal to approve the choice of land is an administrative action related to the exercise of his public authority.
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