[토지형질변경허가신청반려처분취소][공1998.9.15.(66),2332]
[1] The meaning of "public purpose" under Article 4 (1) 3 of the Regulations on Criteria for Permission for Change, etc. of Land Quality and Quality"
[2] Whether the circumstance that there exists a ripple effect of damaging forests, etc. or causing the development of the surrounding similar lands due to the alteration of the form and quality of specific land within the urban planning zone constitutes "area requiring the maintenance of original form for public purposes" under Article 4 (1) 3 of the Regulations on the Criteria, etc. for Permission for the Change of Land Quality and Quality, etc. (affirmative)
[3] The case holding that prohibiting the alteration of the form and quality of a forest within an urban planning zone falls under "area requiring the maintenance of its original form for the public purpose" under Article 4 (1) 3 of the Regulations on Criteria for Permission for Change, etc. of Land Quality and Quality, etc. of Land, and it does not constitute a deviation or abuse
[1] Article 4 (1) 3 of the Regulations on the Criteria for Permission for Change, etc. of Land Quality and Quality stipulates that the permission under Article 4 (1) of the Urban Planning Act shall not be granted in the "area requiring the maintenance of original forms for national defense or public purposes". In light of the legislative purpose and purport of the above provisions, the term "public purpose" is the concept that covers the general purpose of not impeding the rational use of land and urban planning projects within the urban planning area in light of the legislative purpose and purpose of the above provisions.
[2] If there exists a ripple effect that damages forests and landscapes or develops a neighboring similar land due to an act such as changing the form and quality of a specific land within an urban planning zone, such circumstance may also be considered as one standard for determining whether such land falls under a general residential area, or Article 4 (1) 1 of the Rules on the Criteria for Permission of Change, etc. of Land Quality and Quality belongs to a general residential area, or the land is not permitted for an act such as changing the form and quality of the land, and there is a need to maintain its original form for national defense or public purposes" under Article 3 of the Rules on the Criteria for Permission of Change, etc. of Land Quality and Quality, etc., and it does not change as a green belt area.
[3] The case holding that prohibiting the alteration of the form and quality of a forest within an urban planning zone falls under "area requiring the maintenance of its original form for public purposes" under Article 4 (1) 3 of the Regulations on Criteria for Permission for Change, etc. of Land Form and Quality, etc. of Land, and it does not constitute a deviation or abuse of discretionary power
[1] Article 4 (1) 1 of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, Article 4 (1) 3 of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Form and Quality of Land / [2] Article 4 (1) 1 of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, Article 4 (1) 3 of the Regulations on Criteria, etc. for Permission for Change, etc. of Land Quality and Quality of Land / [3] Article 4 (1) 1 of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the Urban Planning Act, Article 4 (
Plaintiff (Attorney Park Jong-ho, Counsel for the plaintiff-appellant)
The head of Jongno-gu Seoul Metropolitan Government (Law Office, Law Office, Attorneys Kim Young-il et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 96Gu22558 delivered on February 6, 1998
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. The lower court determined that the Plaintiff’s disposal of the instant forest land, the land form and quality of which the Plaintiff applied for permission for the change of form and quality of which belongs to a general residential area under urban planning but is designated as a scenic zone, and the landscape of trees leading to North Korea is good, and there is no distance of 120 meters from the mountain wingland designated as a development-restricted zone. The instant forest land has a gradient of 82 meters or 110 meters, and the gradient is 12 degrees or 32 degrees, unlike that of the instant forest land developed at a complete place. The Plaintiff’s disposal of the instant forest land, the land form and quality of which belongs to a level below the lower slope, is likely to cause an excessive change of the form and quality of the instant forest land to the extent that it is difficult for the Plaintiff to develop the instant forest land with a view to removing the forest to create the housing site as a 3rd, and thus, it is difficult for the Plaintiff to install the forest land with a height of 80 meters in its original form and form, and form and quality of the instant forest land.
2. A. We examine the findings of fact by the court below. There is no violation of the rules of evidence or incomplete deliberation as otherwise alleged in the grounds of appeal. Thus, we cannot accept the grounds of appeal on this point.
B. Article 4 (1) 1 of the Urban Planning Act provides that a person who intends to engage in an act such as changing the form and quality of land in an urban planning zone shall obtain permission from the head of Si/Gun. Article 5-2 of the Enforcement Decree of the same Act provides that permission shall not be granted where the head of Si/Gun is feared to obstruct the rational utilization of the land in question or the urban planning project, and it does not meet the standards as determined by the Ordinance of the Ministry of Construction and Transportation. Article 1 of the Rules on the Criteria for Permission for Change, etc. of Form and Quality of Land according to delegation provides that the purpose of this Rule is to contribute to the sound urban development by prescribing the standards for permission for changing the form and quality of the land in an urban planning zone to ensure harmony with urban planning and planning and to ensure the sound development of the city. Article 4 (1) 3 of the Act provides that "an area which needs to maintain the original form and quality of the land within the urban planning zone" shall not be permitted under the provisions of Article 4 (1) of the Act, and therefore, in light of the legislative purpose and purport of the above provision, "public pipes" should be considered as an area or a specific form and form and form change of the surrounding land.
In the same purport, the court below recognized the forest of this case as falling under the "area requiring the maintenance of its original form for the public purpose", it is just to take into account the effects of the damage to the forest and landscape caused by the alteration of the form and quality of the forest of this case and the surrounding land, and there is no violation of the law as alleged in the grounds of appeal, such as erroneous interpretation and application of the purport of Article 4 (1) 3 of the above Rule by misunderstanding the legal principles on the concept and scope of the public purpose. Therefore,
C. In light of the facts acknowledged by the court below and other materials revealed in the pleading, the court below is just in holding that the forest of this case is currently "area requiring the maintenance of its original form for the public purpose" and that the prohibition of changing the form and quality of the forest of this case does not constitute a deviation or abuse of discretion. There is no violation of law as alleged in the grounds of appeal, such as the principle of excessive prohibition or the misapprehension of legal principles as to the scope of discretion. Accordingly, the grounds of appeal on
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Lee Don-hee (Presiding Justice)