Regarding changes in the purpose of land plots.
According to article 49-1 of the Land Code (as amended before July 1, 2023), a change in the purpose of a land plot falls within the competence of a local executive body and is allowed based on the determination of the possibility of using the land plot for the requested purpose.
In accordance with paragraph 8 of this article, the decision to change the purpose of the land plot is made on the basis of the conclusion of the land commission. A refusal to change the purpose of a land plot must be motivated.
By the decision of the SMAS dated December 28, 2021, B.'s claim was satisfied. The decree of the Mayor of the city dated October 22, 2021 in terms of paragraph 9 and paragraph 10 of the annex to the resolution was declared illegal and canceled.
The court ordered the akim to eliminate the violations in full by changing the purpose of the plaintiff's land plot to "construction and operation of a dormitory with an administrative office."
By the decision of the SCAD dated May 23, 2022, the court's decision remained unchanged. By the resolution of the SCAD of the Supreme Court of February 9, 2023, the judicial acts remained in force.
The plaintiff, on the basis of purchase and sale agreements, is the owner of the real estate object and the land plot adjacent to it.
The purpose of the land plot is the operation and maintenance of an apartment building. On October 5, 2021, the plaintiff applied for a change in the purpose of the land plot to "construction and operation of a dormitory with an administrative office."
By the decree of the akim of the city, the plaintiff was refused to change the purpose of the land plot (paragraphs of appendices 9, 10).
The reason for the refusal was the negative conclusion of the Department of Urban Planning and Urban Studies, which states that the land plot is partially located within the "red lines" of the street and does not correspond to the draft detailed layout of the territory of Almaty, approved by the resolution of the Akimat of the city.
In satisfying the claim, the local courts argued that most of the plaintiff's land plot was included in the permitted types of functional use of the territory according to the "Plan for the implementation of urban planning regulations for the development of functional areas of the city territory", approved by the Maslikhat decision of November 20, 2006.
According to the norms of the Law on Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan (hereinafter referred to as the Law on Architecture), red lines are used to regulate the boundaries of development, and not at the stage of changing the purpose of a land plot with an object commissioned in accordance with the procedure established by law.
On similar grounds, the decision of the SMAS of April 15, 2022, left unchanged by the appellate instance, satisfied T.'s claim to the Mayor's office of the city for recognition of illegal actions expressed in the refusal to change the purpose of the land plot from "farming" to "construction of an apartment complex."
In this case, the defendant did not provide evidence of the existence of a specially protected natural area "Ancient Complex, historical and ethnographic reserve", namely a passport of the established sample and information about its registration with the authorized body, the presence of security signs and, as a result, the presence of a two-kilometer security zone with an overlay on the plaintiff's site. At the same time, there are cases of misinterpretation by the courts of substantive law norms, inconsistency of conclusions with the circumstances of the case.
Thus, by the decision of the SMAS dated November 26, 2021, I.'s claim to the office of the mayor of the city for the cancellation of the resolution of the akimat of the city on the refusal to change the purpose of the land plot was satisfied.
By the decisions of the SCAD dated March 4, 2022 and May 20, 2022, the decision of the court of first instance remained unchanged. In the case, it was established that I. is the owner of an apartment building and a land plot in the city, with the intended purpose for the operation and maintenance of an apartment building. He built a non-residential building (cafe) with outbuildings on his land.
On August 5, 2021, I. applied to the akimat with a statement on changing the purpose of the land plot from "operation and maintenance of an apartment building" to "operation and maintenance of an apartment building and catering facility".
By the resolution of the Akimat dated August 16, 2021, the application was refused. According to the plaintiff, changing the purpose of the site to a mixed type does not restrict or violate the rights and interests of others, the cafe was built within the boundaries of land use, while it operates and the plaintiff pays the appropriate taxes as an individual entrepreneur. The courts, satisfying the claim, recognized the refusal as not motivated.
By the resolution of the SCAD of the Supreme Court of December 27, 2022, the judicial acts of the local courts were canceled, with a new decision to dismiss the claim. The courts did not take into account that the non-residential premises (cafe) were not put into operation in accordance with the procedure established by law.
By the judicial act that entered into force, the plaintiff was brought to administrative responsibility for non-elimination of violations committed by the illegal construction of a capital building without design estimates and expert opinions.
The plaintiff's land plot is indivisible. At the same time, the regulatory requirements (sanitary and epidemiological, in the field of fire safety and others) for the construction, operation and functioning of a residential building and a catering facility differ from each other.
The board found signs of abuse of law in the plaintiff's actions to change the purpose of the land plot, since the plaintiff's intention to change the purpose of the land plot is related to the subsequent legalization of an illegally erected catering facility. Despite the fact that these circumstances have been established by the courts, they have not been given a proper legal assessment.
According to paragraph 1 of Article 109 of the Land Code, all lands of settlements are used in accordance with their general plans, RAP and development plans and projects of land management of the territory. The issues of forming the master plan and RAP are regulated by the Law on Architecture.
General plans of settlements are the main urban planning document that defines the integrated planning of the development of a city, village, village or other settlement and is developed in accordance with the approved general scheme of organization of the territory and the integrated scheme of urban planning of the regions.
The general plan of the settlement is valid until the approval of a new general plan or the approval of changes to the current general plan in a part that does not contradict the legislation of the Republic of Kazakhstan.
Therefore, all changes to the master plan must comply with the law. By virtue of article 47-1 of 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. RAP 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 approved RAP may be amended and supplemented no more than twice a year, except in cases caused by the need to adjust the current detailed planning project for the construction of social, cultural and unique facilities at the expense of budgetary funds.
According to paragraph 1 of Article 44 of the Land Code, local executive bodies of the region, the city of republican significance, the capital, the district, the city of regional significance, akims of the city of district significance, the settlement, the village, the rural district must ensure strict compliance with the approved general plans or schemes of the location of the territory of the settlement.
In violation of these norms, the local executive body issues resolutions on changing the RAP, violating the rights of bona fide land users.
When considering claims against these rulings, the courts should pay attention to the degree of development of the land, the presence of interested parties, and compliance with the principle of proportionality.
For example, the courts satisfied M.'s claim for recognition as illegal and cancellation of the resolution of the Akimat of the city on the adjustment of the RAP. In the case, it was established that the adjustment was made without taking into account the opinion of the public, in the absence of justifications for the adopted architectural and planning decisions and information on the recalculation of previously approved technical and economic indicators on the scale of the boundaries of the RAP, in violation of the mandatory norms of the Law on Architecture, as well as the requirements of the National Assembly of the Republic of Kazakhstan 3.01-00-2011 "Instructions on the procedure for development and approval and approval of urban development projects in the Republic of Kazakhstan".
The land plot had not been used for its intended purpose for eight years, there was no control by the authorized bodies, and the repeated, unjustified adjustment of the RAP was the result of this inaction.
It should be noted that since July 1, 2023, amendments to the Land Code have entered into force concerning the specifics and conditions of the provision of land plots, depending on the requested purpose, the procedure for granting the right to a land plot within the city of republican significance, the capital, cities of regional and district significance, changes in the purpose of land plots.
State duty
The procedure for paying the state duty is regulated by the norms of the CPC and the Tax Code. The state duty is paid in the amount established by subitems 2, 3 of paragraph 1 of Article 610 of the Tax Code, which is 0.3 monthly calculation index for individuals, 5 monthly calculation index for legal entities.
The issue of reimbursement of court costs is resolved in accordance with the requirements of Article 122 of the CPC and Articles 109, 115, 117 of the CPC.
In accordance with Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings.
By virtue of the second part of Article 122 of the CPC, when returning a claim on the grounds provided for in paragraphs 5), 6), 12), 13), 14) and 15) of the second part of Article 138 of this Code, court costs are not reimbursed.
In accordance with the second part of Article 142 of the CPC, if the plaintiff's application for withdrawal of the claim is received in full at a court hearing or a preliminary hearing, the court explains the consequences of the withdrawal of the claim.
In other cases, the judge returns the claim without calling the participants in the administrative process with a refund of the state fee.
Jurisdiction
When considering cases on disputes arising from land relations, compliance with the rules of jurisdiction, the filing of a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for resolving cases.
Jurisdiction is determined according to the rules of Articles 102 and 106 of the CPC. At the request of the plaintiff, cases referred to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases under the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
Jurisdiction of disputes.
For example, the SMAS received administrative claims from the Land Inspection Department to challenge the decisions of the Akim of the city, district, aul (rural) district, that is, a dispute arose between government agencies.
The Judicial Board of the cassation instance clarified the issue if the parties to the cases are two state bodies that are equivalent in status (they belong to organizations of state power that carry out on behalf of the state on the basis of the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan on the management and regulation of socially significant public relations, control over compliance with the generally binding rules of conduct established by the state), and argue among themselves in the interests of the state, and not in the interests of individuals (legal entities) or an indefinite circle of persons, in this case such claims are not subject to consideration in administrative proceedings. There are also questions about the claims of the MIO to the authorized land management bodies to challenge the regulations submitted to them.
Taking into account that the order of the authorized body to eliminate violations of the requirements of land legislation is an administrative act and, by virtue of paragraph 3 of Article 146 of the Land Code, is mandatory, the subjects of the audit have the right to appeal it in the order of administrative proceedings.
For example: an order addressed to the akim of the district on the cancellation of the resolution on the provision of a land plot and bringing the guilty officials to justice is subject to challenge by the akim of the specified territorial unit.
At the same time, the claims of individuals and legal entities whose interests are indirectly affected by this regulation are subject to refund, since the appealed administrative act was issued against another entity.
For example: according to the claim of LLP "N" to the Department of Land Management for the recognition of illegal actions to conduct an inspection, recognition as illegal and cancellation of regulations on the elimination of violations No. 95, 96 and 97 dated July 1, 2022.
Compliance with the deadline for filing a claim in court.
Basically, the plaintiffs filed lawsuits challenging the decisions of the local executive body on granting the relevant right to land plots.
In accordance with the first part of Article 136 of the CPC, claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.
If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
A person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of the administrative act, but not later than one year from the date of its adoption (part 5 of Article 136 of the CPC).
Errors of the procedural law related to the restoration of the specified probation period.
For example, by the decision of the SMAS dated February 10, 2022, A.'s claim to the akimat of the district was satisfied. The resolution of July 23, 2009 on granting the right to a land plot to A LLP was canceled. By the decision of the Court of Appeal of May 19, 2022, the court's decision remained unchanged.
The courts established that by the decree of the Akimat of September 8, 2003, the plaintiff was granted the right to temporary shared land use for a period of 49 years for farming a land plot.
The courts proceeded from the fact that the right to the land plot was granted to the Partnership without the consent of the plaintiff, and therefore the decision was declared illegal.
By the decision of the SCAD of the Supreme Court of December 22, 2022, judicial acts of local courts were canceled, since the courts of first and appellate instances, when resolving the dispute on the merits, did not take into account that the plaintiff was not a participant in the administrative procedure.
The disputed resolution granted the right of land use to the Partnership. The decision was issued on July 23, 2009, and the deadline for filing a claim to challenge it expired on July 23, 2010 for a person who did not participate in the administrative procedure for its adoption, including A.
The courts, in violation of the above-mentioned provisions of the procedural law, restored the deadline for the plaintiff, which is suppressive, and considered the merits of the claim to be refunded. The courts should keep in mind that the norm of part 5 of Article 136 of the CPC is mandatory and the one-year period provided for by it is suppressive and cannot be restored. In accordance with part 8 of Article 136 of the CPC, the inability to restore the missed deadline for applying to the court is the basis for returning the claim.
For the same reasons, the judicial acts of the SMAS of October 5, 2021 and the SCAD of March 10, 2022, issued in the lawsuit of KH "A" to the akim of the rural district on recognition as illegal and cancellation of the decision on granting land use rights, were annulled in cassation.
The claim has been returned. The courts, resolving the dispute on the merits, did not take into account and did not give a proper legal assessment to the fact that the procedures for granting land use rights to the disputed land plot of farm "U" took place in 2006-2008. The administrative claim was filed on August 6, 2021. At the same time, the plaintiff KX "A" was not a participant in these procedures.
It should be noted that if the court of first instance accepts the claim for production and considers it on its merits with a decision, from the stage of appeal, taking into account the provisions of Article 126 of the CPC, it can be returned only after passing the pre-trial period.
In other cases, the case is considered by the appellate instance on the merits. However, if the time limit is restored by the court in the absence of sufficient grounds, the protection of the violated right may be denied upon the fact of abuse of the right.
Legislation
The norms of substantive law, which were guided by the courts in resolving disputes of the generalized category, include the legislative acts currently in force. The main regulatory legal acts regulating the issues of disputes of the generalized category are:
1) The Constitution of the Republic of Kazakhstan;
2) The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); 3
) The Land Code of the Republic of Kazakhstan (hereinafter - CC);
4) The Administrative Procedural Code (hereinafter referred to as the APPC);
5) The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
6) Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
7) Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95-IV;
8) Environmental Code of the Republic of Kazakhstan dated January 2, 2021 No. 400 VI;
9) The Law of the Republic of Kazakhstan "On Legal Acts" dated April 6, 2016 No. 480-V;
10) The Law of the Republic of Kazakhstan "On State Property" dated March 2011 No. 413-IV;
11) The Law of the Republic of Kazakhstan "On Local Government and Self-government in the Republic of Kazakhstan";
12) 16) Regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the judicial decision" dated October 2, 2003 No. 5;
13) Rules for maintaining the State Land Cadastre in the Republic of Kazakhstan, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2014 No. 160;
14) Rules for the implementation of land management works for the development of a land management project, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated May 6, 2015 No. 379;
15) Rules for the provision of public services in the field of land relations, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law "On Legal Acts," codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.
As a general rule, provided for in Article 4 of the Civil Code, Article 43 of the Law "On Legal Acts", regulatory legal acts apply to relations that have arisen after their entry into force.
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