[1] In a case where land division is clearly deemed impossible in an application for a building permit that intends to take part of one or more parcels of land as a single site because it falls under the restrictions under the relevant laws and regulations, whether a construction administrative agency should refuse to grant conditional building permission (affirmative)

[2] Whether the competent cadastral authority may refuse the registration of land division application for reasons other than the grounds for restrictions under the relevant statutes, such as the Building Act or the National Land Planning and Utilization Act (negative)

[3] In a case where a building extends over an aesthetic district, the proviso of Article 54(1) of the former Building Act that applies the provisions concerning aesthetic districts to the whole of the building and its site; the legislative intent of the proviso of Article 84(1) of the former National Land Planning and Utilization Act; and whether the said provision can be deemed as a provision that limits the division of land in a part that does not fall under aesthetic districts in a single site (

[1] According to Article 2 Subparag. 1 of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014); Article 3(2)5 of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 24874, Nov. 20, 2013); an administrative agency that constructed a building may grant a building permit on the condition that the land division procedure should be completed after taking part of one or more parcels of land as one site and filing an application for approval of use (hereinafter “land division conditional building permit”).

Such conditional permission for land division, instead of having completed procedures for land division before filing an application for a building permit, is the purport of allowing the completion of procedures for land division until an application for approval for use is filed, after completing construction works first in accordance with the building permit for the convenience of an applicant for a building permit. An administrative disposition is not permissible in accordance with the principle of administration under the rule of law, given that an administrative agency’s objectively imposed conditions that are unlikely to perform by the other party to disposition cannot be permitted. As such, an administrative agency should review whether “one or more parcels of land” intended to be considered as a single site in accordance with the building plan of an applicant is possible under the relevant laws and regulations, and if land division is clearly impossible because it falls under the relevant laws and regulations, it shall refuse to grant a conditional permission for land division. However, in cases where land division is subject to permission for development activities, an administrative agency has the authority for permission for development activities regarding land division falling under development activities, and there is room for the determination of an administrative agency on the possibility of permission for land division. Therefore, inasmuch as an administrative agency deems it difficult to obtain permission for land division upon its review permission, the applicant’s.

[2] In full view of Article 79(1) of the former Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Act No. 12738, Jun. 3, 2014); Article 65(1) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Presidential Decree No. 25104, Jan. 17, 2014); Article 57 of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014); Article 56(1)4 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”); Article 51(1)5 of the Enforcement Decree of the National Land Planning and Utilization Act, as well as the structure and contents of the said delegation, the competent cadastral authority shall reject the registration of land division in accordance with the details of the application, as long as the application does not fall under any restrictions prescribed by relevant Acts and subordinate statutes, such as construction or land division.

[3] The proviso of Article 54(1) of the former Building Act (amended by Act No. 12246, Jan. 14, 2014); and the proviso of Article 84(1) of the former National Land Planning and Utilization Act (amended by Act No. 14795, Apr. 18, 2017) provide that the provisions governing aesthetic districts shall apply to the whole of a building and its site where a building extends over an aesthetic zone. However, if all or part of a specific building extends over an aesthetic zone, the purpose of expanding urban planning regulations by uniformly applying the provisions concerning aesthetic districts for convenience of the whole building and its site is to ensure that the provisions concerning aesthetic districts are applied to the whole building site, not to the case where a part of a building site extends over an aesthetic zone. Therefore, in light of the purport of such provisions, the aforementioned provisions merely provide for the method of applying restrictions on construction, such as the building-to-land ratio, floor area ratio, etc., in cases where a building site extends over at least two special-purpose areas, specific-purpose areas, and zones not to the purport.

[1] Article 2 subparag. 1 of the former Building Act (Amended by Act No. 12246, Jan. 14, 2014); Article 3(2)5 of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 24874, Nov. 20, 2013) / [2] Article 79(1) of the former Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Act No. 12738, Jun. 3, 2014; Act No. 79(1)); Article 65(1)4 of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (Amended by Presidential Decree No. 25104, Nov. 17, 2014); Article 65(1)5 of the former Enforcement Decree of the Building Act (Amended by Act No. 25104, Apr. 15, 2014; Presidential Decree No. 25165, Jan. 14, 2014>

[1] Supreme Court Decision 2009Du8946 Decided September 24, 2009 (Gong2009Ha, 1777) Supreme Court en banc Decision 2010Du22962 Decided November 22, 2012 (Gong2013Sang, 54) / [2] Supreme Court Decision 93Nu1828 Decided January 11, 1994 (Gong194Sang, 732)

Lot shopping Co., Ltd. (Law Firm Jungwon, Attorneys Kim Su-chul et al., Counsel for the plaintiff-appellant)

Ulsan-gu Seoul Metropolitan Government Head of the Gu (Government Law Firm Corporation, Attorneys Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Defendant Intervenor (Law Firm Won, Attorneys Shin Jae-ju et al., Counsel for the defendant-appellant)

Busan High Court Decision 2014Nu21905 decided June 24, 2015

All appeals are dismissed. The costs of appeal are assessed against the Intervenor joining the Defendant, and the remainder are assessed against the Defendant.

The grounds of appeal by the Defendant and the Intervenor are examined together.

1. As to the grounds of appeal Nos. 1 and 4

A. (1) Article 2 Subparag. 1 of the former Building Act (amended by Act No. 12246, Jan. 14, 2014; hereinafter the same) provides that “site” means a parcel of land partitioned by each parcel pursuant to the Act on Land Survey, Waterway Survey and Cadastral Records: Provided, That a parcel of land prescribed by Presidential Decree may be divided by two or more parcels of land as one site or by one or more parcels of land as one site.” According to delegation, Article 3(2)5 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 24874, Nov. 20, 2013; hereinafter the same shall apply) provides that “where approval for use under Article 22 of the Act is applied for, a parcel of land shall be divided by one parcel of land.”

According to the above provisions, the construction administrative agency may grant a building permit on the condition that part of one or more lots should be designated as a single site and the land division procedure should be completed until the application for approval for use is filed after completing the construction work (hereinafter “land division conditional building permit”).

Such conditional permission for land division, instead of having completed procedures for land division before filing an application for a building permit, is the purport of allowing the completion of procedures for land division until an application for approval for use is filed, after completing construction works first in accordance with the building permit for the convenience of an applicant for a building permit. An administrative agency’s administrative disposition is not permissible in accordance with the principle of administration by the rule of law, as it is difficult for an administrative agency to objectively implement the disposal counter-party. As such, an administrative agency’s “one or more parcels of land” intended to be considered as one site in accordance with the building plan of an applicant to be considered as a single site is examined as the case where land division is possible under the relevant laws and regulations, and if land division is clearly deemed impossible because it falls under the relevant laws and regulations, it shall refuse a conditional permission for land division. However, as examined below, in exceptional cases where land division becomes subject to permission for development activities, the administrative agency has the authority to permit land division corresponding to development activities, and there is room for the determination of an administrative agency for permission for development activities to be different from the determination of the administrative agency.

(2) According to Article 79(1) of the former Act on Land Survey, Waterway Survey and Cadastral Records (amended by Act No. 12738, Jun. 3, 2014); Article 65(1) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Presidential Decree No. 25104, Jan. 17, 2014); and Article 55(1) of the former Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records (amended by Presidential Decree No. 25104, Jan. 17, 2014), a landowner may file an application for land division with the competent cadastral authority in cases where “where necessary for the transfer of ownership, purchase, etc., and sale of land,” and “where necessary for the correction of unreasonable ground boundaries in land use,” Article 57 of the former Building Act prohibits the division of land to a certain extent, and Article 56(1)4 of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”).

Meanwhile, the proviso of Article 54(1) of the former Building Act and the proviso of Article 84(1) of the former National Land Planning Act (amended by Act No. 14795, Apr. 18, 2017) provide that the provisions governing aesthetic districts shall apply to the whole of a building and its site in cases where a building extends over an aesthetic district. However, this purport is to expand the regulation on the urban planning by uniformly applying the provisions regarding the aesthetic district for convenience of the whole building and its site in cases where all or part of a certain building extends over an aesthetic district. Moreover, the purport of the provision is not to apply to the whole site to a case where only a part of a site extends over an aesthetic district, not to the whole site. Therefore, in light of such purport, the said provision is merely to determine the standards for applying restrictions on construction, such as building-to-land ratio, floor area ratio, etc., in cases where a site extends over two or more specific use districts, specific use districts, or specific use zones, and it cannot be deemed to limit the division of part not

B. According to the reasoning of the first instance judgment cited by the lower court, the following circumstances are revealed.

(1) On April 19, 2013, the Plaintiff filed an application with the Defendant for a construction permit with the purport of newly constructing a gas station with a building area of 170.09 square meters on the partitioned site (hereinafter “instant site”) by dividing the portion of 663 square meters used for a ground parking lot among the area of 830-1 large 21,969 square meters in Ulsan-gu, Nam-gu, Ulsan-gu, Seoul Metropolitan City (hereinafter “instant site”).

(2) Although the instant site and the building at the glatertetetetetete live place are over an aesthetic district, the instant site to be gas station does not constitute an aesthetic district.

(3) On May 3, 2013, the Defendant rendered a disposition rejecting the Plaintiff’s application for permission to construct a gas station on the grounds of the increase in risk and congested congestion in the parking lot in the lot lot at the Ulsan-si, the occurrence of nearby traffic congestion and concerns over traffic accidents arising therefrom, and the collective petition of neighboring residents and merchants (hereinafter “instant disposition”).

C. Examining the above circumstances in light of the legal principles as seen earlier, the following determination is possible.

(1) The Plaintiff’s application for permission to construct gas stations does not have any circumstance to deem that the application falls under any limitation provided by relevant statutes, such as the Building Act.

(2) As to the Plaintiff’s application for permission for the construction of gas stations, the Defendant, after examining whether the division of the instant gas station site in the instant site is possible under the relevant statutes, and where it is deemed impossible or difficult to obtain permission for development because the division of land falls under restrictions under the relevant statutes, a conditional permission for the construction may be refused. However, this does not mean that the Plaintiff may refuse the construction permission for reasons other than that that it should undergo land division procedures.

(3) The dividing of the instant site into the instant site is to divide the “site where the building exists” and thus does not constitute subject to permission for development activities under the National Land Planning Act and subordinate statutes, and there are no other circumstances to deem that the instant site falls under any restriction stipulated under the relevant statutes, such as construction statutes. If the Defendant, upon examining the Plaintiff’s application for permission for the construction of gas stations, determined that the aforementioned division is impossible under the relevant statutes, the Defendant may refuse to grant a conditional permission for land division on the ground of the determination. However, in the instant case, the Defendant did not allow the Plaintiff to construct the gas station. Rather, the grounds for disposition presented by the Defendant while rendering the instant disposition are naturally premised on the possibility of land division.

D. The lower court determined that the Plaintiff’s application for construction permission does not constitute grounds for restriction on construction permission as prescribed by the relevant statutes, and that the Plaintiff’s application does not constitute a necessary reason for restriction on construction permission. Such determination by the lower court is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

2. As to the grounds of appeal Nos. 2 and 3 and the grounds of appeal by the Intervenor joining the Defendant

A. In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds only to the extent that the grounds for the initial disposition are deemed identical to the basic facts. The existence of such basic facts should be determined based on whether the relevant basic facts are identical in basic respect, based on the specific facts prior to the legal evaluation of the grounds for disposition (see Supreme Court Decision 2013Du26118, May 16, 2014, etc.).

B. The grounds of appeal Nos. 2 and 3 alleged by the Defendant and the Defendant’s Intervenor’s Intervenor’s grounds of appeal are merely the grounds for disposition presented by the Defendant while rendering the instant disposition and the circumstances in which the identity of factual relations is not recognized. It is without merit to further examine.

In the same purport, the lower court’s rejection of the above assertion by the Defendant and the Defendant’s Intervenor is justifiable, and the lower court did not err by misapprehending the legal doctrine on the procedure for the disposition and the presentation of reasons

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)