건축물용도변경허가불허가처분 취소심판 기각재결취소
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Details of ruling;
A. From around 2013, the Plaintiff has operated a singing practice room in 8th floor C and D (hereinafter “the instant building parts”) of the building located in Namyang-si, Namyang-si.
B. On June 8, 2018, the Plaintiff filed an application for permission to change the use of the instant building to amusement facilities (e.g., general restaurants) with the head of Nam-si, Namyang-si (hereinafter “instant application”). However, on June 19, 2018, the head of Namyang-si, the head of Namyang-si returned the instant application (hereinafter “the instant initial disposition”) to the Plaintiff on June 19, 2018 under Article 76 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), Article 71 of the Enforcement Decree of the same Act, and the Urban Planning Ordinance [Attachment 9] of the Southern-si, Namyang-si, in cases of amusement facilities in a general commercial area, the use of the instant building is interrupted from a residential area according to parks, greenbelts, or natural features, or is located far away from 50 meters from a residential area. However, on the grounds that the said provision is inappropriate
C. On July 18, 2018, the Plaintiff filed an administrative appeal seeking the revocation of the original disposition in this case with the Defendant, but the Defendant dismissed the said administrative appeal on October 1, 2018 on the ground that “A road between the instant building and the residential area cannot be deemed as falling under a topographical feature, and thus, the instant building part cannot be deemed as not having been isolated from a residential area based on the topographical features and natural features on the ground that it cannot be deemed that the instant building part was cut off with a residential area
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 5, the purport of the whole pleadings
2. Determination on the defense prior to the merits
A. The reasoning for the judgment of the Defendant prior to the merits is identical to the ground for the original disposition of this case, and there is no inherent defect in the judgment of this case itself.
In addition, the plaintiff may institute an administrative litigation against the head of the E-Eup in Nam-si seeking the revocation of the original disposition in this case.