2013Guhap26217 Revocation of Disposition of Non-permission for Building Permit

School juristic persons: Hongk Private Teaching Institutes

Seoul Mapo-ro 94 Red-ro 94

If the representative is the chief director,

Law Firm Barun (LLC)

Attorney Kim Yong-hwan, Gyeong-si

The head of Mapo-gu Seoul Metropolitan Government

Administration of Litigation Performers, Rule of Use

Law Firm Hyeong, Attorney Kim Jong-soo

Attorney Yu Jin-hee

west ○

Seoul Mapo-gu World Cup;

Law Firm Han-soo, Counsel for defendant-appellant

Attorney Cheong-ok

July 10, 2014

September 18, 2014

1. The Defendant’s disposition of non-permission on August 21, 2013 against the Plaintiff is revoked.

2. Of the costs of lawsuit, the part relating to the intervention by the Defendant is assessed against the Intervenor, and the remainder of the costs of lawsuit is assessed against the Defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. As an educational foundation established under the Private School Act for the purpose of establishing and operating a private school, the Plaintiff is promoting a plan to build a dormitory of the Hong Kong University on the aggregate of three parcels, including the Mapo-gu Seoul Metropolitan Government Sungsan-dong 39-35, 243-3, 243- - 243 - 11, 4,026 square meters (hereinafter “instant land”). The Defendant is an administrative agency with the authority to permit the construction of the above accommodation, which is a kind of building, under the Building Act.

B. On the instant land, the Plaintiff planned to construct dormitories for the students, etc. of Red-Profit University at the fourth and seventh floor above the ground level (hereinafter “the instant dormitory”) and applied for permission to engage in development activities for the purpose of changing the form and quality of land to construct the said dormitory on May 8, 2012, to the Preferred High Court for the instant land.

C. On July 11, 2012, the Mapo-gu Urban Planning Council was held to deliberate on the Plaintiff’s application for permission to engage in development activities, and the Urban Planning Committee shall undergo deliberation on the said application by the Building Committee. - Matters to be reflected in the deliberation: A conditional (hereinafter “instant development permission terms”) with the content of “Reflection of the plan to resolve the civil petition” was passed. On September 5, 2012, the Defendant issued a disposition of permission to engage in development activities (hereinafter “instant development permission disposition”) with the same condition attached according to the results of the judgment of the above Urban Planning Committee (hereinafter “instant development permission”).

D. On November 28, 2012, the Plaintiff filed an application with the Defendant for a construction planning trial along with a field report and a construction plan. On November 30, 201, Mapo-gu Building Committee (hereinafter “Building Committee”) shall implement a plan for public facilities (such as libraries, public books rooms, opening parking lots, etc.) submitted to implement the development permission conditions in this case, and shall be planned as a club line that can be easily used by the residents, and shall be collected to the maximum extent possible and reflected in the opinions of the local residents.

E. According to the Mapo-gu Building Committee’s decision for postponement, the Plaintiff collected the opinions of the residents, and “the Government established a plan to take measures, the main contents of which are “B,” such as the opening of the public book room and book room of the first floor underground among the pre-existing housing buildings, opening of a parking lot, and building an existing book, and filed an application for deliberation on the construction plan again to the Defendant. After reviewing the plan submitted by the Plaintiff, the Mapo-gu Building Committee reviewed the plan submitted by the Plaintiff, and made a conditional “resolution” under the conditions as follows (hereinafter “instant construction permit conditions”).

A person shall be appointed.

A person shall be appointed.

F. On April 23, 2013, the Plaintiff filed an application for a building permit with the Defendant on the instant land. Upon the Defendant’s request for supplementation, the Plaintiff: (a) removed a detailed operation plan for the scheme for solving civil petitions by residents on August 2, 2013; (b) however, on August 21, 2013, the Defendant sent the Plaintiff’s application for a building permit (new construction) “a notice of non-permission; and (c) issued a non-permission disposition regarding the Plaintiff’s application for a building permit on the following grounds (hereinafter “instant non-permission disposition”).

G. Meanwhile, on July 4, 2013, the Defendant issued a permit to extend the project period for the instant disposition of permission for development activities from August 5, 2013 to August 5, 2015.

H. On October 23, 2013, the Plaintiff filed the instant lawsuit against the instant non-permission disposition. [The grounds for recognition: (a) the fact that there is no dispute; (b) the statement of evidence Nos. 1, 4, 5, 7, 10 through 14, 42; and (c) the purport of the body prior to the pleadings];

2. The assertion and judgment

A. The plaintiff's assertion

The defendant's ground for the non-permission disposition of this case "(1) satisfy the requirements for the development permission of this case (the non-performance of the plan for the settlement of civil petitions), ② satisfying the requirements for the construction permission of this case (the lack of detailed operating system for the settlement of civil petitions), ③ the non-permission of this case (3) and the non-permission of this case. However, the plaintiff met all the requirements for the permission of the opening of this case and the conditions for the construction permission of this case, and the non-permission of this case cannot be the ground for non-permission of the construction permission. Nevertheless, the defendant's non-permission of this case was unlawful.

(b) Related statutes;

As shown in the attached Form.

C. Determination

1) Grounds for the instant non-permission disposition

When the Defendant rendered the instant non-permission, it shall review the grounds for the instant disposition: (a) the lack of the requirements for the instant development permission (non-performance of the plan to file a civil petition); (b) the lack of the conditions for the instant construction permission (short of the detailed operation plan for the settlement of civil petitions); and (c) the lack of resolution for the non-harm of the opposite civil petition (Evidence A No. 14); and (d) the above three grounds for the disposition are legitimate in order.

2) The non-performance of the terms and conditions of the development permit of this case (Non-performance of the civil petition settlement scheme)

In the instant non-permission disposition, the Defendant: “The Defendant issued the instant development permission disposition, and did not present to the level that residents are able to understand the instant development permission conditions according to the Mapo-gu Urban Planning Committee’s deliberation.” The Defendant appears to have determined that the construction permission requirements were not satisfied on the ground that “the instant development permission conditions were not satisfied for the purpose of changing the form and quality.”

However, as long as an application for a building permit is not contrary to any of the provisions of the relevant laws and regulations, including the Building Act, a building permit holder shall grant a building permit under the same laws and regulations. Despite the absence of a critical need for public interest, permission to a person meeting the requirements cannot be denied on the grounds other than the grounds for restriction as prescribed by the relevant laws and regulations (see Supreme Court Decision 2009Du8946, Sept. 24, 2009): Provided, That since a building permit involving an alteration of the form and quality of land in an urban area under the National Land Planning and Utilization Act (hereinafter "National Land Planning Act") does not require a change in the form and quality of land in the urban area under the National Land Planning and Utilization Act, a building permit that entails an alteration of the form and quality of land is not subject to permission under Article 11(1) of the former Building Act (amended by Act No. 12701, May 28, 2014; hereinafter the same) and it does not require a change in the form and quality of land to be cancelled.

As to this, the Defendant’s “the construction permit for the instant dormitory necessarily entails a change in the form and quality of land (the change from the night to the site), and the instant development permit disposition against the Plaintiff is premised on the condition of the instant development permit. As such, insofar as the Plaintiff did not present a sufficient civil complaint settlement plan at the stage of deliberation by the Mapo-gu Construction Deliberation Committee, the portion of the development permit disposition of the instant case, which was acquired conditionally, cannot be obtained, and therefore, the “non-performance of the conditions of the development permit of the instant case (non-performance of civil petition)” can be a legitimate ground for the instant non-permission disposition.

According to Articles 57(4) and 59(1) of the National Land Planning and Utilization Act, a person entitled to permission for development activities and a person entitled to permission for development activities shall undergo deliberation by the urban planning committee before granting permission for development activities in a specified case, and permission for development activities may be granted on the condition that construction of infrastructure following such development activities or security of sites necessary therefor, prevention of danger, prevention of environmental pollution, landscape, landscaping, etc. shall be taken under the conditions as prescribed by Presidential Decree. Thus, permission for development activities may be granted on the condition that the urban planning committee deliberated on

However, the conditions imposed on the instant permission for development activities are limited to “to undergo deliberation by the Construction Committee by reflecting the plan for solving civil petitions by residents.” Thus, the Defendant may be deemed to have imposed a condition or charge to undergo deliberation by the Mapo-gu Construction Committee. Since the Plaintiff’s conditional consent resolution by the Mapo-gu Construction Committee after deliberation by the Mapo-gu Construction Committee was recognized as above, the conditions imposed on the permission for development activities may be deemed to have been satisfied. Moreover, the Defendant did not have any fact to cancel the instant permission for development activities, and the instant permission period for development activities was extended until August 5, 2015, which was extended by the date of conditional consent resolution by the Mapo-gu Construction Committee, by August 4, 2013, which was the date of the conditional consent resolution by the Mapo-gu Construction Committee. The foregoing argument on the premise that the permission for development activities is no longer valid is without merit.

Therefore, the part related to permission for development activities among the grounds of the instant disposition is illegal.

3) Dissatisfying the instant building permit conditions (satisfying the detailed operation plan for the settlement of civil petitions)

In rendering the instant disposition, the Defendant cannot be deemed to have fulfilled the construction plan deliberation condition because the detailed plan for solving civil petitions, which is the construction plan deliberation condition, was not a proposal that can be accepted by the residents. “The point is cited as one of the grounds for disposition. However, for the following reasons, this point is deemed to be illegal because it cannot be a legitimate ground for disposition.

Article 11(1) of the Building Act provides that "any person who intends to construct or repair a building shall obtain permission from the Special Self-Governing City Mayor, Special Self-Governing Do Governor, or the head of a Si/Gun/Gu." Article 11(4) provides that "the permitting authority may choose not to grant permission for construction in any of the following cases, subject to deliberation by the Building Committee, notwithstanding this Act or other Acts and subordinate statutes." Article 11(1) provides that "Where amusement facilities or accommodation facilities are deemed inappropriate for surrounding environment," subparagraph 1 provides that "where amusement facilities or accommodation facilities are deemed inappropriate for surrounding environment," subparagraph 2 provides that "no building permission may be granted", such as a disaster prevention district under the National Land Planning Act or a natural disaster risk improvement district under the Countermeasures against Natural Disasters Act. Thus, the permitting authority shall grant a building permission under the Building Act annually unless the building permission for construction does not violate any restriction prescribed by relevant Acts and subordinate statutes, and even if there is no need for significant public interest, it is not possible to refuse permission for a person who meets the requirements for grounds other than those prescribed by relevant Acts and subordinate statutes (see, etc.

However, “The Plaintiff’s failure to comply with the instant construction permit conditions (the lack of the detailed operation plan for the settlement of civil petitions)” is not only a ground for restriction prescribed by the Building Act or the relevant statutes, but also there is no material to deem that the detailed operation plan for the settlement of civil petitions was insufficient for the significant public interest. Therefore, the construction permit holder does not constitute a ground for refusing the construction permit following the deliberation of the Building Committee.

Furthermore, the condition of the building permit in this case is subject to the conditional consent resolution of the Mapo-gu Building Committee, and the condition of the building permit in this case does not fall under the matters to be deliberated by the local building committee under Article 4 (1) of the Building Act and Article 5-5 (1) of the Enforcement Decree of the Building Act, and the reason that the local building committee was not qualified to construct the building in this case cannot be denied (Supreme Court Decision 98Du4658 delivered on March 14, 200). Thus, the building permit in this case cannot be a legitimate ground for rejection of the building permit in this case, provided that the plaintiff did not comply with the condition of the building permit in this case deliberated and decided by the above Mapo-gu Building Committee (short of detailed operation plan for filing a civil petition).

Meanwhile, since the Mapo-gu Urban Planning Committee imposed the instant development activity condition upon the instant disposition of the instant development permit, it appears that the Defendant or Mapo-gu Building Committee asserts that the instant construction permit condition (the detailed operation plan for the settlement of civil petitions) may be attached or the building permit may be refused on the ground of nonperformance. However, as seen earlier, the authority and scope of deliberation by the head of a local government or a local building committee related to the building permit can only be determined by statutes, and such authority cannot be granted according to the determination by the Urban Planning Committee, and thus, the Defendant’s assertion cannot be accepted.

4) The non-resolution of the opposing civil petition

In rendering the instant disposition, the Defendant presented the reasons for disposition that the opposite civil petition by the residents near the instant land was not resolved. However, the rejection of the application for building permission is illegal, not based on the statutory restrictions but on the circumstances that there are civil petitions by the neighboring residents (Supreme Court Decision 2000Du9762 Decided July 26, 2002), and the above point cannot be a legitimate reason for disposition.

D. Sub-committee

Ultimately, since the defendant's non-permission disposition of this case cannot be deemed a legitimate ground for disposition, the non-permission disposition of this case must be revoked as unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and it is decided as per the disposition.

Judges Kim Jong-tae

Judges - unable to sign and affix a seal on the official trip

The presiding judge

Judges

Judges Ansan-jin

Related Acts and subordinate statutes

i. The National Land Planning and Utilization Act;

Article 56 (Permission for Development Activities)

(1) A person who intends to engage in any of the following activities prescribed by Presidential Decree (hereinafter referred to as "development activities") shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Metropolitan Autonomous City Mayor, Special Self-Governing Province Governor, Special Self-Governing Province Governor, or the head of a Si/Gun (hereinafter referred to as "permission for development activities"): Provided, That this shall not apply to any activity conducted under an urban or Gun planning project:

1. Construction of buildings, or installation of structures;

2. Changing the form and quality of land (excluding changing the form and quality of land for farming, as prescribed by Presidential Decree);

3. Gathering soil and rocks;

4. Dividing land (excluding the partitioning of a site on which a building is located);

5. Piling up goods within the green area, control area or natural environment conservation area for at least one month.

(2) Paragraph (1) shall apply mutatis mutandis to any modification to matters permitted for development activities: Provided, That this shall not apply to any modification to insignificant matters prescribed by Presidential Decree.

(3) Notwithstanding paragraph (1), the Creation and Management of Forest Resources Act and the Erosion Control Work Act shall apply to construction of forest roads and erosion control projects in forests within an urban area and a planned control area, among development activities under paragraph (1) 2 and 3, and the Management of Mountainous Districts Act shall apply to development activities under paragraph (1) 2 (limited to changes in the form and quality of land for agriculture, forestry, or fisheries) and 3 in forests within a preservation control area, a production control area, an agricultural and fishery area, and a natural environment conservation area.

(4) Any of the following acts may be conducted without permission for development activities, notwithstanding paragraph (1): Provided, That where emergency measures referred to in subparagraph 1 are taken, a report shall be filed with the Special Metropolitan City Mayor, Metropolitan City Mayor, Metropolitan Autonomous City Mayor, Special Self-Governing Province Governor, Special Self-Governing Province Governor, Mayor or head of a Si/Gun within

1. Emergency measures for disaster restoration or disaster control;

2. Remodelling, extension or rebuilding of buildings that may be reported and installed pursuant to the Building Act, and alteration of the form and quality of land within the scope necessary therefor (limited to a site for an urban or Gun planning facility project where no urban or Gun planning facility project is implemented);

3. Other minor activities prescribed by Presidential Decree.

Article 57 (Procedures for Permission for Development Activities)

(1) A person who intends to engage in a development activity shall submit an application accompanied by a plan for building infrastructure following the relevant development activity, securing a site required therefor, preventing danger and injury, preventing environmental pollution, and securing scenery, landscaping, etc., to the person entitled to permission for development activities. In such cases, he/she shall not submit a plan for building infrastructure within a development-density control area or for securing a site required therefor: Provided, That a person who intends to construct a building subject to the Building Act or build a structure among acts referred to in Article 56 (1) 1 shall submit an application in accordance with procedures provided for in the Building Act.

(3) When the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun makes a disposition of permission or non-permission pursuant to paragraph (2), he/she shall immediately notify the relevant

(4) Where the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun/Gu grants permission for development activities, he/she may grant permission for development activities on the condition that construction of infrastructure following such development activities or the securing of sites necessary therefor, prevention of the above damage, prevention of environmental pollution, landscape, landscaping, etc. be conducted, as prescribed by Ordinance

Article 58 (Standards, etc. for Permission for Development Activities)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors, Metropolitan Autonomous City Mayors, Special Self-Governing Province Governor, or the head of a Si/Gun shall grant permission for development activities or permission for modification only when the details of application for permission for development activities meet

1. To meet the scale of development activities prescribed by Presidential Decree in consideration of the characteristics of specific-use areas: Provided, That the scale of development activities shall not be restricted in light of the landscape prescribed by Presidential Decree, such as where development activities are performed by a rural development project under subparagraph 4 of Article 2 of the Rearrangement of Agricultural and

2. Not to be contrary to the details of an urban or Gun management plan and a growth management plan referred to in paragraph (4);

3. Not to hamper the implementation of an urban or Gun planning project.

4. To achieve harmony with the actual utilization condition or land use plan in neighboring areas, the height of buildings, gradient of land, status of trees, water distribution, and drainage of rivers, lakes, marshes, and wetlands, etc.;

5. To properly establish a plan for installing infrastructure following the relevant development activities, or securing sites required therefor.

(2) When the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor, or the head of a Si/Gun/Gu grants permission for development or permission for alteration, he/she shall hear the opinions of the operator of an urban or Gun planning project implemented in the relevant area as to whether such development activities interfere

(3) Where permission may be granted pursuant to paragraph (1), the standards for such permission shall be prescribed by Presidential Decree according to the following classification in consideration of the characteristics of the relevant region, the development status of the relevant region, the current status of infrastructure, etc.

1. For urbanization: Residential, commercial and industrial areas to which the standards for permission for development activities are applied according to restrictions on the use of land and the use, building-to-land ratio, floor area ratio, height, etc. of buildings;

2. For reservation: An area prescribed by Presidential Decree among planned management areas, production management areas and green belts to be applied by strengthening or relaxing the standards for permission for development activities through deliberation by the urban planning committee under Article 59;

3. Preservation use: An area prescribed by Presidential Decree among conservation management areas, natural environment conservation areas, and green belts to which provisions regarding permission for development may apply by strengthening the standards therefor through deliberation by the urban planning committee under Article 59;

▣ 서울특별시 도시계획 조례

Article 21 (Procedures, etc. for Permission for Development Activities)

(1) In granting permission for development activities pursuant to Article 57 (4) of the Act, the head of a Si may examine the following matters and impose conditions, if necessary:

1. Whether it is appropriate for public interest;

2. Whether an interested person is protected;

3. Whether the surrounding environment, scenery, traffic, scenery, etc. is damaged;

4. Whether historical and cultural local values and conservations are made;

5. Whether measures, such as landscaping and prevention of disasters, are necessary.

6. Whether public facilities prescribed by related Acts and subordinate statutes are secured.

▣ 구 건축법 ( 2014 . 5 . 28 . 법률 제12701호로 개정되기 전의 것 )

Article 4 (Building Committee)

(1) The Minister of Land, Infrastructure and Transport, a Mayor/Do Governor, and the head of a Si/Gun/Gu shall establish a building committee to investigate, deliberate, coordinate, or arbitrate the following matters (hereafter referred to as "deliberation, etc." in this Article), respectively:

1. Important matters concerning the enforcement of this Act and municipal ordinances;

2. Matters concerning the mediation or arbitration of disputes related to the construction, etc. of buildings: Provided, That a construction committee established by the head of a Si/Gun/Gu shall be excluded herefrom.

3. Matters prescribed by other Acts and subordinate statutes to be deliberated by the Building Committee.

4. Where other statutes stipulate that a building committee may undergo deliberation in lieu of deliberation under such statutes, matters for which deliberation by the building committee is requested under such statutes;

(5) The organization and operation of each building committee under paragraph (1) and other necessary matters shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport or the relevant local government (referring to Ordinance of the Special Metropolitan City or Metropolitan City in cases of autonomous Gus; hereafter the same shall apply in this paragraph), as prescribed by Presidential Decree

Article 11 (Building Permits)

(1) A person who intends to construct or repair a building shall obtain permission from the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si, Gun, or Gu: Provided, That when he/she intends to construct a building, the use and size of which are prescribed by Presidential Decree, such as a building with at least 21 floors, he/she

(4) In any of the following cases, the competent permitting authority may choose not to grant a building permit, notwithstanding this Act or any other Act:

1. Where construction of a building corresponding to amusement facilities or lodging facilities is permitted: 2. Where the scale or shape of the building to be constructed on the relevant site is deemed inappropriate in consideration of the surrounding environment, such as a residential or educational environment; and 3. Where it is deemed inappropriate to use some space, such as underground floors, for residential purposes, or to install a living room for a building to be built in an area habitually or likely to be flooded, such as a disaster prevention district (hereinafter referred to as "disaster prevention district") under Article 37 (1) 5 of the National Land Planning and Utilization Act and an area requiring countermeasures against natural disaster under Article 12 (1) of the Countermeasures against Natural Disasters Act;

▣ 구 건축법 시행령 ( 2013 . 11 . 20 . 대통령령 제24874호로 개정되기 전의 것 )

Article 5-5 (Local Building Committee)

(1) Pursuant to Article 4 (1) of the Act, a building committee established in the Special Metropolitan City, a Metropolitan City, a Do (hereinafter referred to as "Si/Do") and a Si/Gun/Gu (hereinafter referred to as "local building committee") (hereinafter referred to as "local building committee") shall deliberate on the following matters:

1. Matters concerning the designation of building lines (building lines) under Article 46 (2) of the Act;

2. Matters subject to the enactment and amendment of municipal ordinances (limited to municipal ordinances proposed by the head of the relevant local government) under the Act or this Decree;

3. Matters concerning the mediation or arbitration of disputes related to the construction, etc. of buildings: Provided, That the local architectural committee established in the Si/Gun/Gu shall be excluded herefrom;

4. Matters concerning the construction of any of the following buildings (hereinafter referred to as "public-use building"). In such cases, matters concerning the construction of buildings with at least 21 floors or with a total floor area of at least 100,000 square meters may be referred to as matters subject to deliberation by a local building committee established in a Si/Do, as prescribed by Building Ordinance (hereinafter referred to as "Building Ordinance") concerning buildings in the relevant City/Do:

(a) A building, the total floor area of which used for any of the following purposes is at least 5,00 square meters:

1) Cultural and assembly facilities (excluding exhibition halls, zoological and botanical gardens)

2) Religious facilities;

3) Sales facilities;

4) Passenger automobile terminals among transportation facilities.

5) General hospitals among medical facilities.

6) Tourist accommodation facilities among accommodation facilities.

(c) A building with 16 or more floors;

5. Matters concerning the construction and substantial repair (limited to substantial repair under subparagraph 7 of Article 3-2) of buildings within aesthetic districts, the use and scale of which meet the criteria prescribed by Building Ordinance of the relevant local government;

6. Matters related to the construction of buildings for sale, the use and scale of which meet the criteria prescribed by Building Ordinance;

7. Matters to be deliberated by a local building committee under other statutes.

8. Matters concerning the construction, etc. of buildings prescribed by Building Ordinance and deemed necessary by the Special Metropolitan City Mayor, Metropolitan City Mayors, Do Governors, or Special Self-Governing Province Governor (hereinafter referred to as "Mayor/Do Governor") and the head of a Si/Gun/Gu, the head of a local building committee;