The Committee on Construction and Housing and Communal Services declared the order illegal and cancelled
No.6001-23-00-6ap/368 dated 08/15/2023
The plaintiff: State Institution "Department of Culture and Urban Planning of the city"
Respondent: Russian State Institution "Committee for Construction and Housing and Communal Services of the Ministry of Industry and Infrastructural Development of the Republic of Kazakhstan"
Interested parties: LLP "U", State Institution "Department of State Architectural and Construction Control of the region"
The subject of the dispute: on recognition as illegal and cancellation of the prescription
Review of the defendant's cassation complaints.
PLOT: Based on the appeal of NGO "A" on May 14, 2022, the Committee conducted an unscheduled inspection of the Department on the legality of issuing initial permits for the facility "Construction of two multi-apartment residential buildings at 1/4 Toraigyrova Street". Based on the results of the audit, an act on the results of the audit No. 72 dated June 14, 2022 was drawn up, according to which violations of the law were identified in the activities of the Department under paragraphs 11 and 15 of the checklist, in this regard, the Committee issued an order to the Department to eliminate violations No. 72.
The Committee indicated to the Department about the violation of the Law of the Republic of Kazakhstan on July 16, 2001 No. 242 "On Architectural, urban planning and construction activities in the Republic of Kazakhstan" and ordered to take measures: according to paragraph 11 of the checklist: upon cancellation of the agreed draft No. 6342 dated October 22, 2021, notification of the customer about the cancellation of the draft, sending a letter to GASK about the cancellation of the initial permits; according to paragraph 15 of the checklist: order to cancel the APZ, notify GASK.
Disagreeing with the ruling, the plaintiff appealed to the court to challenge it.
Judicial acts:
1st instance: the claim was denied. A particular definition has been made.
Appeal: the decision is overturned. The claim is satisfied. The particular definition remains in force.
Cassation: the decision of the appeal is overturned, the decision and the ruling of the court are upheld.
Conclusions: In refusing to satisfy the plaintiff's claims, the court reasoned that the APZ and the technical conditions for the construction of two multi-apartment residential buildings at the address: the city, Toraigyrova Street, ¼, issued by the plaintiff to U LLP, do not correspond to the general plan of the city, since the land plot is classified as other, the construction of residential buildings is not provided. objects.
The Court of Appeal found these conclusions to be untenable, inconsistent with the principles of fairness and proportionality laid down in the APPC, since construction on a land plot can be carried out not only on the basis of a master plan, but also on the basis of a building project in accordance with the intended purpose of the site.
However, the judicial board believes that the decision of the appellate instance is illegal and unjustified on the following grounds.
Thus, the court of appeal did not take into account that, according to article 60 of the Law, the construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repairs) of facilities and their complex, as well as the laying of communications, engineering preparation of the territory, landscaping and landscaping are carried out according to design (design estimates) documentation developed in in accordance with the detailed planning projects approved in accordance with the established procedure, the building project, executed on the basis of the general plan of the settlement (or their replacement scheme of development and development of settlements with a population of up to five thousand people).
By virtue of article 47 of the Law, the development and development of territories of settlements is carried out on the basis of master plans approved in accordance with the established procedure. Master plans of settlements are the main urban planning document defining integrated planning for the development of a city, village, village or other settlement and developed in accordance with the approved general scheme of organization of the territory and the integrated scheme of urban planning of regions.
According to paragraph 1 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.
Paragraph 1 of Article 109 of the Land Code of the Republic of Kazakhstan dated June 20, 2003 No. 442 stipulates that all lands of cities, towns, rural settlements are used in accordance with their master plans, detailed planning and development projects (if any) and projects of land management of the territory.
Based on part 15 of paragraph 5 of Article 44 of the Code, it is prohibited to provide land plots for construction without detailed planning projects or master plans for settlements with an estimated population of over twenty thousand people.
Moreover, according to paragraph 5 of Article 51 of the Law, the placement (construction) of new facilities, buildings and structures for residential and civil purposes that are not directly related to the operation of the recreational zone is not allowed on the territory of the recreational zone.
Meanwhile, the courts found that according to the general plan of the city, approved by the decree of the Government of the Republic of Kazakhstan No. 337 dated June 12, 2018, the land plot located at the address: city, Toraigyrova street 1\4 belongs to the recreational zone, which are intended for the organization and arrangement of recreation areas for the population and include gardens, forest parks., parks and squares, zoos, reservoirs, beaches, water parks, landscape architecture facilities, other places of recreation and tourism, as well as buildings and structures for leisure and (or) recreational purposes, therefore, the purpose of the land plot does not correspond to the functional area designated in the general plan of the city.
There is no evidence in the case file that changes have been made to the general plan of the city and the construction of apartment buildings is envisaged on the disputed land plot.
In this regard, APZ No. 6393 dated October 20, 2021 does not comply with the general plan of the city and was developed in violation of the requirements of the Law, therefore, the draft design was unreasonably agreed upon and the Committee lawfully submitted a response act in the form of a prescription for identified offenses. As for the private ruling of the court and the ruling of the judicial board on this issue, the judicial board finds no grounds for their cancellation or amendment.
The case materials established that, following the results of preventive control, an electronic act in the form of an instruction on the elimination of violations No. 72 was formed by the defendant on June 14, 2022, through the Unified Register of Subjects and Objects of Inspections (ERSOP) information system. Thus, the contested order was issued (automatically) in the form of an electronic document, which was confirmed in court.
The Court of First instance found that the contested order was issued by the Committee in the form of an electronic document and delivered to the address of the audited entity - Department on purpose on paper, and not through an electronic document management system.
In this regard, the court correctly issued a private ruling in which it indicated that the contested order was not an electronic document, the Committee should have brought to the audited entity the administrative acts issued in the form of an electronic document through the electronic document exchange system, excluding the use of paper documents.
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