[2] In a case where the issue was whether there are legal grounds for delegation under Article 23-2 (1) 1 and 2 of the Ordinance on Cheongsong-gun Urban Planning that restricts the use and development of land by restricting the location of solar power infrastructure within a certain distance from major roads, residential concentrated areas, etc., the case holding that the above Ordinance provisions are concrete matters delegated by the National Land Planning and Utilization Act

[3] Where a statute delegates a specific matter to a municipal ordinance, the standard for determining whether the municipal ordinance complies with the limits of delegation

[4] In a case where the issue was whether Article 23-2 (1) 1 and 2 of the Ordinance on Cheongong-gun Urban Planning deviates from the limits delegated by the superior law, the case holding that the above provision of the Ordinance cannot be deemed to exceed the limits delegated by the National Land Planning and Utilization Act

[2] In a case where the issue is whether there are legal grounds for delegation under Article 23-2(1)1 and 2 of the Ordinance on Cheongsong-gun Urban Planning, which restrict the use and development of land by restricting the location of solar power infrastructure within a certain distance from major roads, residential concentrated areas, etc., the case holding that although the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) does not expressly delegate the authority to ordinances concerning the standard of separation distance for the installation of solar power infrastructure, the delegation of ordinances is sufficient to comprehensively delegate the authority, the nature as autonomous affairs concerning urban and Gun planning, the text and content of various provisions of the National Land Planning Act, etc., the provisions of the said Ordinance are concrete.

[3] Where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation should also be made by comprehensively examining the legislative purpose and content of the pertinent statutory provision, structure of the provision, and relationship with other provisions. Even though the text of the delegation provision clearly states the scope of delegation by using terms clearly indicating the meaning in the text of the delegation provision, it goes beyond the limits of the meaning, and whether it can be seen as a new legislation going beyond the scope of the terms used in the delegation provision by expanding or reducing the scope of delegation beyond the meaning of the terms used in the delegation provision.

[4] In a case where the issue was whether Article 23-2(1)1 and 23-2(1)2 of the Ordinance on Cheongsong-gun Urban Planning deviates from the bounds delegated by superior laws and regulations, the case holding that in light of the relevant legal principles, the above provision of the Ordinance limits the scope of “1,00 meters from major roads, such as motorways, national highways, Gun roads, Myeon roads, and Myeon roads,” and “10 meters from residential areas, tourist areas, lots of land sites, and lots of land within 50 meters from the boundary of public facilities, etc.,” and “10 meters from residential areas and lots of land sites, etc.,” which are the basis for delegation of the above Ordinance, and “1,00 meters from residential areas, tourist areas, and Do roads, etc.,” which are the basis of the legislative intent of the provisions of the Act on Cheongsong-gun Urban Planning and Utilization.”

1. We examine whether there are legal grounds for delegation of ordinances.

A. Article 117(1) of the Constitution of the Republic of Korea guarantees the comprehensive autonomy of local governments. As such, statutory delegation to ordinances related to autonomous affairs does not necessarily require strictness to be determined within a specific scope, such as statutory delegation to a statutory order. Even where a law comprehensively delegates matters concerning the rights and obligations of residents to a municipal ordinance without specifying the specific scope thereof, a local government may enact by municipal ordinance matters concerning the rights and obligations of residents to the extent that it does not violate statutes (see, e.g., Supreme Court Decisions 2016Hun-Ma5162, Dec. 5, 2017; 92Hun-Ma264, 279, Apr. 20, 1995).

B. Article 23-2(1)1 and 2 of the Ordinance on Cheongong-gun Urban Planning (hereinafter “instant ordinance provision”) which is the basis of the instant disposition of non-permission for the development activities, restricts the use and development of land by restricting the location of solar power infrastructure within a certain distance from major roads, densely concentrated residential areas, etc. The National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) does not expressly delegate the National Land Planning and Utilization Act to ordinances concerning the standard of separation distance for the installation of solar power infrastructure. However, delegation to ordinances is sufficient to comprehensively delegate delegation, nature as autonomous affairs of urban and Gun planning, language and content of various provisions of the National Land Planning Act and subordinate statutes, etc., the instant ordinance provision ought to be deemed as concrete matters delegated by national land planning statutes. The specific reasons are as follows.

1) Administrative affairs concerning an urban or Gun plan, the purpose of which the local government establishes a spatial structure and development direction for its jurisdiction, constitutes autonomous affairs of a local government (see Article 2 subparag. 2 of the National Land Planning Act, and Article 9(2)4 of the Local Autonomy Act). According to the National Land Planning Act, the head of a local government shall establish an urban or Gun master plan for an area under his/her jurisdiction (see Article 18(1)); determine the designation or alteration of a special-purpose area or special-purpose district by an urban or Gun management plan (Articles 36(1) and 37(1)); hear the opinions of the local council in advance to establish or alter an urban or Gun management plan (Article 21(1)); and matters concerning restrictions on the types, scale, etc. of buildings in a designated special-purpose area or special-purpose district (Article 76(2)).

As such, the National Land Planning and Utilization Act has a variety of provisions that delegate authority to local governments to establish specific standards for building activities in the form of an urban/Gun plan or municipal ordinance. The standard for separation distance for the installation of solar power infrastructure is matters that the head of a local government can sufficiently regulate in the form of an urban/Gun plan, and it is also possible for a local council to prescribe in advance specific standards that the head of a local government should apply when formulating an urban

2) Article 58(1)4 of the National Land Planning and Utilization Act provides that the details of an application for permission for development activities shall be in harmony with the actual use condition or land utilization plan of a neighboring area, height of a building, gradient of land, status of trees, water drainage, etc. Paragraph (3) of the same Article provides that the standards for permission shall be determined by Presidential Decree in consideration of the characteristics of the area, development status of the area, current status of infrastructure, etc. The standards for permission are determined by Presidential Decree. According to delegation, Article 56(1) [Attachment 1-2] subparag. 1(d) and (2) of the former Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) of the National Land Planning and Utilization Act (hereinafter “National Land Planning and Utilization Act”) provides that the buildings or structures constructed or installed by development activities do not damage the surrounding natural scenery and aesthetic view, and that the said height, form and color should be harmonized with the surrounding buildings; where a landscape plan is formulated by an urban or Gun plan, development activities must be seen from the construction of the above provisions of national land planning and installation.

3) Meanwhile, Article 56(1) [Attachment 1-2] [Attachment 1-2] of the Enforcement Decree of the National Land Planning Act was amended by Presidential Decree No. 2853 on December 29, 2017, which was subsequent to the instant disposition, newly established a provision that “specific matters concerning the separation distance, height, arrangement, etc. of a specific building or structure may be prescribed by urban or Gun planning ordinance” in subparagraph 2(a) Item (c) of the Enforcement Decree of the National Land Planning Act, but it cannot be deemed that there are no grounds for delegation of the instant ordinance provisions on the ground that it is prior to the amendment of the Enforcement Decree. As seen earlier, the fact that the standard for separation distance of installation of solar power facilities can be prescribed by ordinances is derived from the contents of the National Land Planning Act, and thus, the newly established provision by the amendment of the said Enforcement Decree is merely a matter that has been prescribed by principle and confirmation (formerly, the standard for separation distance, height, allocation, etc. of administrative offices of each local government without compensation in the form of municipal ordinance.”

In addition, Article 56(4) of the Enforcement Decree of the National Land Planning and Utilization Act provides that the former Guidelines for Operation of Permission for Development (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 997, Apr. 18, 2018; hereinafter “Regulation of the Ministry of Land, Infrastructure and Transport”) established by the Minister of Land, Infrastructure and Transport pursuant to delegation of the said Enforcement Decree may prepare urban or Gun planning ordinance within the scope delegated or set by the National Land Planning and Utilization Act, or prepare and operate a separate guidelines within the scope set by the statutes and these guidelines (1-2-2). In applying the standards for permission for development activities, the Ministry of Land, Infrastructure and Transport prescribed that specific standards for height, distance, allocation, scope, etc. (3-2) may be set upon consultation of the Local Urban Planning Committee (3-6(3)) upon consideration of regional characteristics. However, such Ministry’s provision of the Ministry of Land, Infrastructure and Transport should be understood as not establishing and establishing regulations that grant local governments or permitting authorities the authority to regulate, but should be understood as a matter derived from the content of the National Land Planning Act.

2. We examine whether the delegation of superior laws exceeds the bounds of superior laws.

A. In cases where a statute delegates a certain matter to a municipal ordinance, determination as to whether the municipal ordinance complies with the limits of delegation should also be made by comprehensively examining the legislative purpose and contents of the relevant statutory provision, the structure of the provision, and the relationship with other provisions, etc.; in addition, even though the text of the delegation provision clearly states the scope of delegation by using terms with which the meaning can be clearly known, it exceeded the limits of the meaning; and whether it can be deemed that a new legislation has been made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2010Du25077, Oct. 25, 2012, etc.).

B. Examining the language, content, structure, legislative intent, and the following circumstances as the grounds for delegation of the provisions of the National Land Planning Act, which are the grounds for delegation of the instant Municipal Ordinance, in light of the aforementioned legal principles, the instant Municipal Ordinance provisions cannot be deemed to have exceeded the bounds delegated by the National Land Planning and Utilization Act, on the grounds that the instant provisions restrict the installation of solar power infrastructure within 1,00 meters from the main roads, such as expressways, national highways, local highways, Gun roads, Gun roads, and Myeon roads, and “within 500 meters from the boundary of residential areas, tourist resorts, and

1) The criteria for permission for development activities under Article 56(1) of the National Land Planning and Utilization Act are many parts of the criteria for permission and prohibition as indefinite concepts, and thus, whether the requirements are met belongs to the discretionary jurisdiction of an administrative agency. Therefore, the judicial review thereof is, in principle, limited to whether there is deviation or abuse of discretionary authority, taking into account the room for discretion to determine the public interest of the administrative agency, and is the basis for determining whether there is a violation of the principle of mistake of facts and proportionality and equality (see, e.g., Supreme Court Decision 2004Du6181, Jul. 14, 2005). In particular, when examining whether there is deviation or abuse of discretionary authority in relation to the permission of an administrative agency for development activities that are likely to cause environmental damage or pollution, the determination should be made after careful consideration of the legislative purport of various regulations on the balance of rights and interests among interested parties and the protection of environmental rights, such as the utilization status and living environment of residents in the relevant area, and the legislative purport of such regulations.

Such broad discretion of the head of a local government with respect to permission for development activities should be deemed to be equally recognized in determining the detailed standards for permission for development activities by municipal ordinance. In particular, in today's society where the importance of the people's environmental rights and a pleasant environment is emphasized, there should be more room for the formation of municipal ordinances in the field where environmental interests should be considered.

2) The Cheongsong-gun, in which the instant disposition of non-permission for development activities was taken, is surrounded by North, Dong, and South, and the forest area is 81.4% of the total area, and the conservation of the natural environment and forests is highly necessary as it belongs to the kingsan National Park, Cheongsong National Park, and Cheongsong Natural Recreation Forest. Considering the problems of environmental damage that may be caused by solar power infrastructure and the geographical and environmental characteristics of Cheongsong-gun, the instant ordinance provisions can be deemed as embodying the standard of separation distance within the scope of delegation under the National Land Planning Act and subordinate statutes so as not to harmonize solar power infrastructure in the Cheongsong-gun with the surrounding environment and scenery and to prevent any occurrence of environmental pollution, ecosystem destruction, damage, etc., and the uniform restriction of this separation distance cannot be deemed as violating the purpose of delegation

3) Article 23-2(3) of the Ordinance on Cheongong-gun Urban Planning provides that the State or a local government or a public institution shall be excluded from those cases deemed necessary by the head of a Gun, such as where the State or a local government or a public institution establishes a facility for public interest purposes or where the facility is installed on its own consumption or on a building. Accordingly, it does not completely prohibit the installation of solar power infrastructure in Cheongong-gun, including the provision of this case.

Even if the provision of this case provides that the installation of solar power infrastructure in most areas within Cheongong-gun is restricted, insofar as the legitimacy and necessity of the separation distance regulation on the installation of solar power infrastructure in Cheongong-gun is recognized, it cannot be deemed that the restriction on land use and development for public interest goes against the purport of delegation under the National Land Planning and Utilization Act or goes against the principle of equity with only such outcome. The restriction on land use and development for public interest constitutes a social restriction on the exercise of property rights that the land owner should in principle obtain, unless it is impossible to use the land for the original purpose or it is no longer possible to use the land for the original purpose or use the land for any longer legally permitted method (see Supreme Court en banc Decision 2010Da108197, Mar. 27, 2014; Constitutional Court en banc Decision 89Hun-Ma214, Dec. 24, 1998).

4) Although the standard of separation distance (1,00 meters) based on the main roads is somewhat strict in comparison with the ordinances, guidelines, etc. of other local governments, it is inappropriate to compare those of other local governments with those of other local governments, given that each region is different from the environment and characteristics, various impacts of solar power infrastructure on the surrounding environment and landscape may occur in a variety of ways. Therefore, it is inappropriate to compare those of other local governments with those of other local governments. The purpose of the National Land Planning and Utilization Act only sets the outline and limitation of the standard of permission for development activities, and the purpose of delegation of specific detailed standards so that each local government can determine it in line with the actual

3. The lower court determined that the instant provision was invalid as it goes beyond the bounds of delegation, and that the instant disposition based on the provision was also unlawful, by uniformly restricting the separation distance of the installation of solar power infrastructure, to block the room for determination on whether to install solar power infrastructure. In so doing, the lower court erred by misapprehending the legal doctrine on the delegation of statutes and the deviation from the scope of delegation.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)