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).