Princi-ples of legal zoning in the judicial practice

Abstract

The present article deals with the study of the principles of legal zoning through their disclosure in judicial practice. The topic is underdeveloped. The purpose of the study is to identify the role of judicial practice in the legal regulation of urban zoning, as well as the impact on law enforcement and lawmaking activities in this area. The authors propose to use a classification of principles of legal zoning by level of their action (general legal principles, principles of sectoral legislation and special principles) and revealing their content through the analysis of judicial practice materials. In addition to general scientific methods, the comparative legal, formal legal and interpretation methods made it possible to achieve better results. The analysis was conducted with respect to judicial acts adopted by the Supreme Court of the Russian Federation, as well as judicial acts of courts of general jurisdiction and arbitration courts of cassation and appeal instances. More than 150 judicial acts in several catego-ries were examined in total:

– Challenging general plan and land use rules as a legal act;

– Challenging the refusal to grant permission for permitted use or challenging the granted permission for permitted use;

– Challenging the refusal to grant permission to deviate from the maximum parameters of permitted construction, reconstruction of the object of construction or challenging the permission to deviate from the maximum parameters of permitted construction.

According to the results of the study it is possible to identify several ways of working with the principles of legal zoning:

– direct quotation and application, if it is a principle of sectoral legislation, which is enshrined, for example, in the Urban Planning Code of the Russian Federation;

– disclosure of content without precise formulation, for example, the principle of protection of previously arisen rights of right holders of land plots when changing legal zoning, which is not directly mentioned in judicial acts, but is disclosed through references to current legislation;

– the formation of new principles not enshrined in the current legal acts, such as the principle of primacy of the master plan or the principle of belonging of a land plot only to one territorial zone. Approaches and legal provisions, broadcasted by judicial practice, are reflected in the law enforcement and law-making activities of local self-government bodies. The authors draw attention to the fact that local self-governing bodies assess and take into account the emerging judicial practice in different ways. This fact is confirmed by the current editions of the rules of land use and development in different Russian cities.