[토지형질변경불허가처분취소][공1986.1.1.(767),37]
The case holding that a non-permission disposition to change the form and quality of land is illegal because it limits the use of land by the landowner's use of land.
The case holding that a non-permission disposition on change in the form and quality of land is illegal because it limits the use of land by the landowner's use of land.
Article 4 (1) of the Urban Planning Act, Article 5 of Enforcement Decree of the Urban Planning Act
Plaintiff 1 et al., Counsel for the defendant-appellant
Attorney Han-soo et al., Counsel for the defendant
Seoul High Court Decision 82Gu1065 delivered on December 22, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The defendant's attorney's grounds of appeal are examined.
According to Article 4 (1) 1 and 2 of the Urban Planning Act, the act of changing the form and quality of the original land (hereinafter referred to as the "the land in question") shall be subject to the permission of the defendant. According to Article 5-2 of the Enforcement Decree of the same Act, the defendant shall not grant the permission in a case where it is apprehended to interfere with the rational utilization of the land in question or urban planning projects, which is not in conformity with the standards as determined by the Ordinance of the Ministry of Construction and Transportation. Accordingly, according to Article 4 (1) 1 and 2 of the Rules on the Criteria for the Permission for the Change, etc. of Form and Quality of Land, which is No. 328 of April 17, 1982, the defendant shall not grant the permission under Article 4 (1) in an area where the execution of the project in question is extremely inappropriate in light of the area, topographical conditions, etc. in which the surrounding environment, wind, and scenic view, etc. may be considerably damaged.
According to the reasoning of the judgment below, the court below found that the above 28,80 square meters including the above land were green areas under the Urban Planning Act, but the construction was changed to the residential area by 147 on June 15, 1978, and the defendant completed the construction of urban apartment on the ground of 19,134 square meters among the above land and completed the completion inspection on December 31 of the year. The plaintiffs, the owners of the above land, filed an application for change of form and quality for building site formation of the above land with the defendant around June 1983, but the defendant applied for change of form and quality for the permission on building site formation of the above land for the reasons that the change of form and quality for building site formation of the above land was not possible, and there was no error of law by misunderstanding the legal principles as to the above 19,134 square meters away from the above land and the above 200 meters away from the construction site boundary of the above land, and there was no error of law by 30,0000 square meters away from the front ground.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Shin Jong-sung (Presiding Justice)