[1] In a case where there is no prior decision on an urban or Gun management plan regarding a housing construction project site or there is a defect in the decision, whether the plan alone constitutes an unlawful ground for the approval of the housing construction project plan (negative in principle)

[2] Whether the circumstance that there is a defect in the method of disclosure of a disposition subject to constructive authorization pursuant to Article 17(1) of the former Housing Act can constitute an unlawful ground for the approval of the housing construction project plan itself (negative)

[1] Article 54 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “A building, alteration of purpose of use, or installation of a structure in a district unit planning zone shall conform to the district unit planning.” However, this shall not apply where a district unit planning is not established.” As such, the National Land Planning Act itself stipulates that the formulation of an urban or Gun management plan does not necessarily necessarily lead to the construction of a building. The relevant laws and regulations on the basis of the approval of a housing construction plan do not stipulate the requirements for the approval of the housing construction plan plan that first entry into force for a project site. Furthermore, according to Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016), a decision on an urban or Gun management plan, such as a district unit planning subject to consultation, shall be deemed to have been made if an approval of a housing construction plan is issued after consultation with the relevant administrative agency. Therefore, even if a prior urban or Gun management plan decision exists, the prior decision may be deemed to be changed within the

Therefore, even if there is no prior decision on the urban or Gun management plan regarding the project site or there is a defect in the decision, it cannot be said that the same constitutes an unlawful cause for the approval of the housing construction project plan, unless there are special circumstances.

[2] According to Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016), only the matters for which a person having the authority to approve a housing construction project plan has consulted with the head of the relevant administrative agency is deemed to have obtained authorization, permission, etc., at the time of granting approval, and does not require the approval disposition to obtain a comprehensive prior consultation on all the matters listed in each subparagraph. Therefore, even if there is any defect in the method of public notification of the matters subject to the constructive authorization, there is only room for not to bring about the effect of the relevant constructive authorization, etc., and such circumstance does not constitute an unlawful ground for the approval of the housing construction project plan itself.

[1] Article 54 of the National Land Planning and Utilization Act; Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; see current Article 19(1)) / [2] Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; see current Article 19(1))

[2] Supreme Court Decision 2009Du16305 decided Feb. 9, 2012 (Gong2012Sang, 454)

Plaintiff (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for plaintiff-appellant)

Gwangju Market (Law Firm Roon, Attorneys Lee Don-chul, Counsel for plaintiff-appellant)

Seoul High Court Decision 2016Nu67365 decided April 7, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 17(1) of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter “former Housing Act”) provides that when a person authorized to approve project plans approves a project plan pursuant to Article 16, matters about which a person authorized to approve project plans has consulted with the head of the relevant administrative agency regarding the authorization, permission, etc. shall be deemed to have obtained the relevant authorization, permission, etc., and when a public announcement of approval of a project plan is made, matters under the relevant Act shall be deemed to have been publicly notified pursuant to the relevant Act. Article 17(1)5 of the same Act provides that a certain urban/Gun management plan determination, such as a district unit planning zone and district unit planning under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) is deemed one of the matters deemed to have been granted through consultation. Article 17(2) provides that a person who intends to obtain deemed approval, permission, etc.,

2. A. Article 54 of the National Land Planning and Utilization Act provides, “A building, alteration of purpose of use, or installation of structures in a district unit planning zone shall conform to the said district unit planning, except in cases where a district unit planning is not established.” As such, the National Land Planning and Utilization Act itself stipulates that the formulation of an urban or Gun management plan does not necessarily necessarily lead to the construction of a building. The relevant laws and regulations do not stipulate that the establishment of an urban or Gun planning plan should take effect prior to the construction of a building. Furthermore, according to the provisions of the former Housing Act as seen earlier, a determination of an urban or Gun management plan, such as a district unit planning, is deemed to have been made upon consultation with the relevant administrative agency, and thus, even if there exists a determination of a prior urban or Gun management plan, the prior determination may be deemed to have been modified within the scope

Therefore, even if there is no prior decision on an urban or Gun management plan regarding the project site or there is a defect in the decision, barring special circumstances, it cannot be said that the same constitutes an unlawful cause for the approval of the housing construction project plan.

B. Meanwhile, according to Article 17(1) of the former Housing Act, only the matters for which the person who has the right to approve the housing construction project plan has consulted with the head of the relevant administrative agency is deemed to have obtained authorization, permission, etc. at the time of the disposition (see, e.g., Supreme Court Decision 2009Du16305, Feb. 9, 2012). It does not require that all of the authorization, permission, etc. listed in each of the following subparagraphs be subject to prior consultation. Therefore, even if there is any defect in the method of public announcement of the disposition subject to the legal fiction of authorization and permission, there is only room for not to bring about the effect of the legal fiction, such as the relevant authorization and permission, and such circumstance should not be deemed to constitute an

3. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court reveals the following facts.

A. On September 5, 2008, the Governor of the Gyeonggi-do prepared a topographic map for the 3 to 7 districts, including Taedong-dong 13-7 and 14 lots of land in Tae-dong, Tae-dong, Tae-dong, Tae-dong, and 34,099 square meters (T11 block, C12 block), and publicly announced it as an “the first district unit planning decision” (hereinafter “instant district unit planning decision”), and on the same day, the Gyeonggi-do announced it as an announcement under Article 2008-283 of the Gyeonggi-do Public Notice.

B. On December 3, 2014, the Defendant issued a disposition to approve the housing construction project plan (hereinafter “instant approval disposition”) to build apartment and ancillary welfare facilities for 712 households with a size of a size of 34,493 square meters which combine a C11 block with a C11 block with respect to one asset trust company, and accordingly, notified that there was an agenda for modification of district unit planning (hereinafter “instant agenda”) under Article 17(1)5 of the Housing Act, such as the merger of solar seven districts C12 block with C11 block, etc., and publicly notified it on December 17, 2014 as the announcement of Gwangju City by Article 2014-230.

C. On December 31, 2015, the Defendant issued a disposition to change the housing construction project plan with the content that the size of the housing construction project area is 34,493 square meters from the size of the housing construction project area to 34,459 square meters, and the number of apartment units is changed from 712 households to 706 households (hereinafter “instant disposition to change the construction project plan”). On the same day, the Defendant publicly announced it as the announcement of Gwangju at the same time.

4. Examining the above facts in light of the statutes and legal principles as seen earlier, even if there were any defects in the methods of the initial decision of the instant district unit planning and the publication of topographic drawings relating to the instant agenda, such circumstance alone cannot be deemed as a ground for invalidation of the instant approval disposition and the approval of modification itself.

Therefore, the lower court’s determination on whether there is any defect in the method of the initial determination of the instant district unit plan and the method of the announcement of topographic drawings related to the instant agenda, is not appropriate, on the premise that the instant approval disposition and the method of announcement may become invalid. However, the conclusion that the instant approval disposition and the method of announcement is lawful and valid is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the grounds for illegality and invalidation of the approval disposition of the housing construction project plan, thereby adversely affecting the conclusion

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)