2015Nu23816 Revocation of Disposition not to grant a building permit

1. A Stock Company;

Busan

* Representative Director*

2. TitleB

Busan

Busan place of service

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant

Attorney Kim Dong-chul, Justice Kim Dong-chul, Justice Kim Jong-tae, Justice Song Jong-hoon

Head of Busan Metropolitan City Gun

Law Firm Tae-dam, Attorney Tae-gu et al.

Attorney Kim Young-soo, and Park Jong-sik

Busan District Court Decision 2015Guhap21989 Decided October 30, 2015

April 1, 2016

April 29, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s provisional injunction against the Plaintiffs on March 24, 2015 regarding the application for building permit as indicated in attached Form 1, and revocation of a disposition rejecting consultation on the trees and trees subject to transplant as of May 8, 2015, respectively.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The issues of the instant case and the judgment of the court of first instance

A. The issues of the instant case

Since the Busan Metropolitan City Mayor issued the approval of the instant project implementation plan, the instant disposition that was deemed to have been granted a building permit by the Defendant pursuant to Articles 88 and 92 of the National Land Planning Act is unlawful. ② The instant disposition that rejected the Plaintiff’s construction permit under the Building Act is a binding act, and the Plaintiff’s application for the construction permit was not contrary to the laws and regulations, and ③ even if the construction permit is a discretionary act, the instant disposition was argued to have been deviates from and abused the discretionary authority.

The court of the first instance held that the instant disposition was a deviation from and abuse of discretion in light of the following circumstances: (a) merely because the Busan Metropolitan City Mayor requested the Defendant to hold consultation, the construction permission cannot be deemed to have been deemed to have been deemed to have been the legal fiction of the construction permission; and (b) the construction permission for urban demarcated facilities belongs to discretionary action, but (c) the instant disposition was deemed to have been an abuse of discretion.

As to this, the defendant appealed that even if the plaintiff performed the environmental impact assessment stipulated in the Environmental Impact Assessment Act, it only constitutes a requirement for minimizing the environmental impact of the target project, and it cannot be an objective material for the long-term impact on the natural environment after the implementation of the project in this case, and ultimately, the disposition in this case for the public interest purpose of preventing the damage to the natural environment is lawful and reasonable.

Therefore, the issue of this case is whether the third of the above plaintiff's assertion, namely, whether each of the dispositions of this case deviates from or abused discretion in violation of the principle of proportionality.

B. Judgment of the court of the first instance

The following circumstances, namely, ① the Plaintiffs conducted a prior environmental review for the instant project from June 18, 2010. During that process, the Plaintiffs were bound to submit objective data on how environmental damage would result in the instant project, including the review by the head of Busan Metropolitan City and the Seo River basin environmental office, the submission of opinions by the captain of Busan Metropolitan City, the perusal and public announcement to hear interested parties’ opinions, and discussions on the natural environment survey regarding the instant private business. On December 12, 2014, the instant project was completed, and the Mayor of Busan Metropolitan City appears to have issued a disposition to authorize the instant project on December 26, 2014; ② On the other hand, the Defendant was bound to have purchased the instant project for a significant period of time for consultation with the residents on the instant project, as well as the Plaintiff’s request for the destruction of the natural environment due to the instant project. ③ The Plaintiffs did not have an objective data on how much environmental damage would result in the implementation of the instant project as the instant project, as well as the Plaintiff’s request for consultation with the neighboring residents.

2. The judgment of this Court

In order to establish a business plan in order to minimize environmental impacts caused by the project in this case, the plaintiff, in particular, examined and supplemented the service results of the "survey of the natural environment on the planned site of Yongsan-do golf course" conducted by the defendant, and the request for supplementation of the preliminary examination of environmental impact (the draft), such as the Sincheon River Basin Environment Office (the draft, the draft, the draft, etc.) under the revised Environmental Impact Assessment Act, submitted a plan to take measures for consultation on the results of the strategic environmental impact assessment and a plan to take measures for the contents of consultation on the environmental impact assessment (the draft, the draft), and submitted by the Busan Metropolitan City on the condition that the plan to take measures submitted by the plaintiff should be implemented, while the defendant did not submit objective data for the public interest of the environmental damage, etc. on the basis of the disposition in this case, the judgment of the court of first instance that found the disposition in this case deviates from and abused discretion in violation of the principle of proportionality, etc. is justifiable.

Therefore, this court's reasoning is the same as the part of the reasoning of the judgment of the court of first instance, and therefore, it cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act (However, the "Special Act on the Prevention of Maternal Disease" of the judgment of the court of first instance is corrected to "Special Act on the Prevention of Maternal Disease Disease" of the judgment).

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Kim Jong-cheon (Presiding Judge)

Clinical Citizens

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