Право/7.Экологическое, земельное и аграрное право.

 

PhD student Tuleubayeva Gulnur

L.N.Gumilyev Eurasian national university, Kazakhstan

 

ADMINISTRATIVE, SOCIAL AND ECOLOGICAL ASPECTS OF LAND ZONING IN THE REPUBLIC OF KAZAKHSTAN

 

The land as the natural object which exists independently of human will, the natural environment of its habitat has an important socio-environmental, but as the spatial limits of the government policy, and as an object of economic management functions.

The Land fund is a legal concept of the land, as part of the nature, the conditions for the existence of society itself, the spatial framework of placing and development of its productive forces, the main means of agricultural production.

What functions the land would not carry out, it always remains an object of the nature, whose essential property is life provide function.

Natural properties of the land define the ecological character of land relations, regulated by the land right irrespective of patterns of ownership and its use.

Representing itself as natural resources, the land does not cease to be an object of the nature that characterizes it as eternal means of production in agriculture and general operational basis of any economic activities.

The unity of ecological and economic functions of the land characterizes it as a single object of management.

Thus, the construction of land fund is primarily the legal form of an individualization of land as object of management, which provides its comprehensive nature and determines its primacy among the institutions of land law.

Therefore is quite natural, that according to the Land code, the Central state executive powers of republic carry out the administrative functions assigned to them irrespective of in whose property and using there are concrete land areas.

Despite, apparently, on clear enough position of the legislator, in the legal literature there is no common opinion about essence, the maintenance of the government land fund. In the conditions of formation of market economic relations in the legal norms that constitute the legal basis of government by land fund, the withdrawal was accurately designated from the administrative-command management to a fundamentally different method of regulation of land relations.

The increasing legal registration and practical application find economic levers of orderliness and efficiency of land relations.

In the Land code of the Republic of Kazakhstan along with traditional forms of the government management of the land fund, approved in the legislation of the Soviet period, provides a number before organization-legal forms of unknown to the Soviet legislation by land fund of the country taking into account tendencies of development of the legislation of the advanced states. So, according to article 14 of the Land code of the Republic of Kazakhstan [1] central authorized organ on management of land resources carries out protection of interests of the state in the field of land relations, the organization of planning and forecasting of use of the lands on the basis of zoning.

According to point 4 of article 8 of the Land code of the Republic of Kazakhstan the target mode of use of the territory, defined at lands zoning is obligatory for subjects of land legal relations.

Land code of the Republic of Kazakhstan does not open principles, the zoning maintenance, having limited to instructions that methodical maintenance of works on land zoning is assigned to the central authorized organ on management of land resources. However, the legislative practice of the advanced countries where zoning has been used successfully applied more half a century, shows, that it determines a particular species, the limits of property rights to land in a particular territory.

Zones are intended for residential areas, the industry, transport, agriculture, a forestations, tourism, rest etc.

The state establishes the general rules of the use of lands in these zones a result in accordance with its intended use, directs the landowners on certain land uses, limits, and sometimes explicitly prohibits the use of land in conflict with their duties; compensate landowners damage suffered by these restrictions, buys some areas, imposes high tax rates and increase profitability of individual sites as a result of zone planning.

In necessary cases, zone plans provide various measures to regulate the issues of transfer of the separate land areas from agricultural zones in nonagricultural zones and vice versa. They can be connected with definition and change of a special-purpose designation of the lands, measures on protection of all environment and rational use of natural resources; definition of system of priorities among various options of a possible special-purpose designation of separate zones and sites. [2]

The fullest use of possibilities of zoning in the organization of rational use and protection of the lands is one of the important tasks of the state which in the conditions of transition to the market has no other means of regulating the parameters of economic activity on earth. 

In particular, the constructions work in the country acquired in the intensive development of economy of large-scale nature attaches special significance to the problem of urban zoning area. In this connection it is necessary to create a full-fledged institute of zoning to reflect experience in the field of centuries of experience of countries with developed market economies.

Throughout the world, new forms of human settlement in the inhabited areas has brought with it new problems of land use due to increasing density of industrial and residential development of cities, the problems associated with the unprecedented intensification of land use and exacerbation of environmental issues.

In modern conditions in all developed countries of the world the problems of land use ceased to be problems of individual plots of land and have turned into a problem of the large areas, considered as natural-social complex, which effective decision is possible only on a planned basis.

In the developed countries, the hallmark of the legal regulation of land use at this stage was the transition from standard-judicial to the standard-legislative system of regulation.

Unfortunately, in the modern domestic theoretical literature zoning is not even released as independent function of management, despite the presence in the land legislation of the whole system of norms enough in details regulating the competence of state bodies in the area of zoning. In this Land Code shall consider zoning as a means of organizing complex use and protection of the territory. According to article 8 of Land code of the Republic of Kazakhstan zoning is the definition of territory of the lands with an establishment of their special-purpose designation and use mode.

In the Russian Federation division of the lands depending on their purpose designation on a category till the moment of acceptance of the Town-planning code of the Russian Federation in 1998 was the unique legal factor which influenced the maintenance of the corresponding rights and duties of proprietors, land owners, land users and tenants, on the maintenance of a legal regime of the lands. However there were new legal tools of regulation of use of the lands, definitions of their legal regime and by that rights and duties of subjects of land relations. Zoning became such legal tool. [3]

The town-planning code of the Russian Federation [4] has provided a previously unknown to the legislation of the Russian Federation the legal institution of zoning. According to article 37 of the Town-planning Code of the Russian Federation in the development of urban planning documents on urban planning development of territories and settlements, and their building developed zoning scheme, determine the form of land use and imposing restrictions on their use for realization of town-planning activity. Zoning aims to provide a supportive living environment, protection of areas from the effects of natural and man-made, preventing excessive concentration of population and production, environmental pollution, protection and use of protected areas, including natural landscapes, areas of historical and cultural objects, as well as agricultural land and forest land.

In modern Russian theoretical literature rightly emphasizes that zoning is carried out in the public interest. In particular, according to O. I. Krassov zoning territory in the Russia represents additional in relation to division of the lands on a category a way of regulation of use of the lands, as a rule, within separate categories. Through zoning are specified and detailed the rules of use and protection of land, determined the legal regime of property, located on land areas, regulated economic activities in the public interest. The establishment of purpose and a mode of use of the lands, which constitutes the basic maintenance of zoning as well, emphasize the public and legal character of this institution. In the modern legal literature is generally acknowledged that the intended use of land is an expression in the land legislation of public interest in sphere of regulation of land relations [5].

Publicly legal character of institute at all does not exclude that a functional purpose, the basic maintenance of zoning constitutes an optimum combination of public and private interest.

Zoning in the Russian Federation has three main distinguishing feature. Firstly, it is associated with the implementation of urban development. Second, zoning is a prerequisite for a detailed definition of the legal regime is mainly land settlements. Third, through zoning by the legal regulation of the construction and use of real estate as an interconnected complex of buildings, structures and land on which they are located. Zoning is an effective legal means of integrated management of those lands which are properties that are used as spatial territorial basis.

The town-planning code of the Russian Federation defines conditions at which zoning of territories is carried out. Zoning is carried out by working out of the town-planning documentation about town-planning planning and about their building. The main result of zoning is to determine the type of use of territory and imposing restrictions on its use.

Zoning has the dual legal nature. On the one hand, zoning is a component of town-planning. So, in consolidated urban planning schemes that are developed in accordance with the General Plan settlement in the territory of the Russian Federation, is determined by zoning (Article 32 of the Town Planning Code). In the territorial complex schemes of town-planning planning of development of territories of subjects of the Russian Federation and parts of territories of subjects of Federation is also determined by zoning of territories of subjects of Federation or parts of their territories (article 33 of the Town-planning code of the Russian Federation). Zones of a various functional purpose and restriction on use of territories of the specified zones are defined in territorial complex schemes of town-planning planning of development of territories of districts (counties), rural counties (townships, village councils), developed in accordance with the duly approved town planning documents at the federal level and level of the subject of the Russian Federation (Article 34 of the Town Planning Code of the Russian Federation). According to article 35 of the Town-planning code of the Russian Federation of zones of a various functional purpose and restriction on use of territories of the specified zones are allocated also in the general plan of urban or rural settlement. In these cases zoning is an element of function of management-planning of town-planning activity, and also planning of use and protection of the lands.

With reference to these cases by the definition containing in article 1 of the Town-planning code of the Russian Federation, zoning represents division of territory into zones at town-planning planning of development of territories and settlements with definition of kinds of town-planning use of the established zones and restrictions on their use.

On the other hand, according to article 39 of the Town-planning code of the Russian Federation zoning is the basic part of rules of building. Legal forms of zoning are the zoning scheme - a graphic material (borders of territorial zones of a various functional purpose and code designations of such zones) and text materials (town-planning regulations for each territorial zone). The town-planning regulations represent set established by rules of building of parameters and kinds of use of the land areas and other objects of the real estate in city and rural settlements, other municipalities, and also admissible changes of objects of the real estate at realization of town-planning activity within each zone.

According to point 3 and 4 of article 39 of the Town-planning code of the Russian Federation of border of territorial zones are defined taking into account red lines (Red lines, according to article 1 of the Town-planning code, are the borders separating territories of the districts, micro districts and other elements of planning structures from streets, passage and the areas in city and rural settlements.), the natural boundaries of natural objects, land boundaries and other boundaries. The legal regime established for each territorial zone by town-planning regulations, is applied in an equal measure to all land areas located in it, other objects of the real estate.

As such, zoning is the standard legal act of the local government. Therefore, according to point 6 of article 56 of the Town-planning code of the Russian Federation, obligatory inclusion in the document certificating the right to the land area in city and rural settlements, the code of a territorial zone established by rules of building, and a functional purpose of a territorial zone in which limits there is a land area come under. Such zoning is defined in the Town-planning code of the Russian Federation as legal zoning which is understood as activity of local governments in the field of working out and realization of rules of building of territories of city and rural settlements, other municipalities.

In the domestic legal literature the reformative role of the Land code is associated with the introduction of private ownership of land, the recognition of land subject to civil transactions, which can certainly be attributed to its significant innovations arising from the imperatives of the market.

Far from denying these arguments are valid, it should be noted that among the supporting structures of the new codification act can be rightfully attributed the idea of an optimal combination with respect to land of public interest of society and the private interests of individual land owners and land users.

 In modern conditions characteristic line of legislation of many countries in the world is the increase in these norms that perpetuate the social function of land ownership and setting restrictions on the right of ownership based on their public necessity and public utility.

The requirement to give a comprehensible explanation to processes in which a various sort of restriction of the property right all are multiplied - is underlined by M.I. Kulagin, - has generated in the western jurisprudence active creative searches of new designs of the property right. Perhaps, the most wide spread of them as the author fairly marks, is the property concept as social function [6].

Legal regulation of land relations in foreign countries testifies that there is a search of ways of a harmonious combination of guarantees and freedom of the owner with public interest conservation of land as unique natural object.

Such understanding of an essence of social function is extended also in the theory and practice in many countries of commonwealth of independent states. So, the concept of optimum combination public and private interests to the land in the Land code of Russia has found it’s the legislative registration in the form of fundamental principles of legal regulation of land relations.

In conformity of article 1 of Land code of the Russian Federation the combination of interests of a society and legitimate interests of citizens according to which regulation of use and protection of the lands is carried out in interests of all society at maintenance of guarantees of each citizen on free possession, using and the order by the land area belonging to it, concerns one of main principles of the land entitlement.

The idea of an optimal combination of public and private interests in one way or another permeates all the main institutions of the national land legislations, although it is not formulated in article 4 of the Land code of the Republic of Kazakhstan as one of its principles that is represented its serious omission.

At the same time objective character of necessity of combination public and private interests in sphere of land relations is easily deduced from the analysis of the maintenance of numerous norms of land and other legislation.

Besides the Kazakhstan legislation approaches to problems of harmonization of interests fit with the broader social position underlining necessity of a combination for sphere of land tenure and town-planning state, public and private interests. In particular in Law RoК «About the architectural, Town-planning and building activity in the Republic of Kazakhstan» [7] the state interests – are considered as the interests of a society as a whole in maintenance of conditions of a sustainable development of regions, cities, settlements, villages and other settlements, functioning of life-support systems, transport and engineering communications, communication and power, preservation of the environment, preservation of objects of a historical and cultural heritage. Under the Public Interest Law understands the interests of the population of individual regions, cities, settlements, villages and other settlements in securing favorable conditions of residence (stay) in this territory, improve the ecological environment, prevent dangerous (harmful) effects as a result of economic and other activities, infrastructure development and human points and adjacent areas, preservation of historical and cultural heritage, natural values.

Private interests are considered by the legislator as the interests of individuals and entities in connection with architecture, town-planning and building activity on the land areas belonging to them. The legislation analysis allows drawing a conclusion that the state and public interests represent original forms of the public interest.

In our opinion, to the optimal combination of public and private interests also promotes the legislative classification of objects of zoning. In particular according to item 5 of Law RoК «About the architectural, Town-planning and building activity in the Republic of Kazakhstan» objects of architectural, town-planning and building activity are:

1) the territory of the Republic of Kazakhstan;

2) the territory of the regions, districts;

3) the territory of the settlements and their parts;

4) functional zones;

5) objects of the real estate, including all kinds of constructions with the associated to them technological and engineering equipment;

6) special economic zones;

7) Immovable monuments of history and culture, the nature and urban landscape, the status which it is established by the legislation of the Republic of Kazakhstan. There is no doubt that the zoning of territory of the republic first of all is connected with state interests of rational use and protection of land fund of the country. So, according to article 1 of the Land code of the Republic of Kazakhstan, the territory of the Republic of Kazakhstan on natural conditions divided into the following zones: the steppe; the dryness steppe; the semidesertic; the deserted; the foothills-deserted-steppe; the subtropical deserted; the subtropical- foothills-deserted; the Central Asian mountain; the South Siberian mountain.

In these connection former approaches to the zoning, considering it only as organization-legal means on arrangement of the lands of settlements require revision.

It seems that the additional classification of the country on the natural environment opens up new possibilities for regulation of anthropogenic pressure on land resources of the country through zoning. With the zoning should be updated, detailed rules land use and protection of any category, subject to the order of business for them in the public interest.

 

REFERENCES:

1.                 Земельный кодекс Республики Казахстан от 20 июня 2003 года № 442-ІІ  Казахстанская правда. –2003. – 26 июня (с изменениями и дополнениями).

2.                 Земельное законодательство зарубежных стран.- М, 1982.с.373

3.                 Земельный кодекс Российской Федерации от 25.10.2001 № 136-ФЗ (принят ГД ФС РФ 28.09.2001) (ред. от 14.03.2009)//Российская газета, № 211-212, 30.10.2001. КонсультантПлюс.

4.                 Градостроительный кодекс Российской Федерации от 29.12.2004 N 190-ФЗ (принят ГД ФС РФ 22.12.2004) (ред. от 30.12.2008 )//Российская газета, N 290, 30.12.2004. КонсультантПлюс.

5.                 Крассов О.И. Право частной собственности на землю.- М., 2000. 236 с.

6.                 Кулагин М.И. Предпринимательство и право: опыт Запада.- М., 1992.- 144с.

7.                 Закон Республики Казахстан от 16 июля 2001 года № 242-II Об архитектурной, градостроительной и строительной деятельности в Республике Казахстан (с изменениями и дополнениями).