[1] The case holding that the return of the “written proposal for formulating an urban management plan concerning the establishment of a golf course” under Article 26 of the National Land Planning and Utilization Act constitutes an administrative disposition subject to appeal litigation

[2] The case holding that a disposition rejecting "a proposal for drafting an urban management plan concerning the establishment of a golf course" is not unlawful on the grounds that there is a greater need to protect the benefits to be infringed than the benefits that can be gained by the construction of a golf course

[1] In a case where an interested party proposed the formulation of an urban management plan concerning the establishment of golf courses pursuant to Article 26 of the National Land Planning and Utilization Act, the case holding that the return of the above draft proposal constitutes an administrative disposition subject to appeal litigation, even if the content concerning the alteration of specific-use area without the right to propose the drafting is included in the draft proposal

[2] The case holding that the disposition that rejected the draft proposal of the urban management plan on the installation of a golf course is not unlawful on the ground that the need to protect the benefits that may be infringed by a natural disaster, such as flood and landslide, is greater than the benefits that can be gained by the construction of a golf course, in light of the fact that the residents of the village utilize the groundwater of the planned site for the golf course as drinking water and that there is a well-known room for utilizing the groundwater as agricultural water in the surrounding areas, and that the use of a pesticide for the management of the golf course is likely to cause an obstacle to the supply of drinking water and agricultural water, and that the natural environment may cause a natural disaster such as flood

[1] Article 26 of the National Land Planning and Utilization Act; Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 26 of the National Land Planning and Utilization Act; Article 27 of the Administrative Litigation Act

[Defendant-Appellee] Han-Eup Tourism Development (Law Firm Honam General Law Office, Attorneys Yellow-do et al., Counsel for defendant-appellee)

The regular Eup market

April 17, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition taken by the defendant against the plaintiff on July 21, 2007 to revoke the disposition to return the draft urban management plan (urban planning facilities: sports facilities and golf courses).

1. Details of the disposition;

[Evidence] Each entry in Gap 1 and 2

A. On May 28, 2007, based on Article 26 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), the Plaintiff proposed a formulation of an urban management plan with the content of a golf course (area: 213,989 square meters, size of facilities: 9 meters in size of facilities: 9 holes in general, and ancillary facilities) falling under sports facilities among the infrastructure among the infrastructure on the ground of the land owned by the Plaintiff et al. to the Defendant, a person with the authority to formulate an urban management plan, based on which the Plaintiff et al. owns the Defendant, who is the authority to formulate the urban management plan.

B. On July 21, 2007, the Defendant returned the Plaintiff’s proposal for the following reasons (hereinafter “instant disposition”).

(1) The construction of golf courses proposed by the Plaintiff has a positive aspect that contributes to satisfying the demands of golf courses users and establishing public sports due to the improvement of national living standards and the increase of opportunities for leisure use.

(2) However, the distance between the Plaintiff’s scheduled area for the construction of golf courses and the neighboring four villages (the upper, e.g., e., g., e., 50 meters) is merely and excessively adjacent to each other. In the event that the Plaintiff uses the first system in a golf course, it is likely that groundwater used as the drinking water of its residents might be polluted, and damage the deaf company. In light of the case of damage in a golf course where the gradient of the planned site for the construction of a golf course is highly likely to occur around August 2005, the landslide and soil outflow may occur, and the construction of a golf course may damage the natural environment in the neighboring area, and there is a risk that agricultural water will grow up due to the extinction of two village reservoirs, and there is a possibility that the traffic congestion of the first road in the village will occur, and for this reason, some residents of neighboring villages have consistently opposing the construction of a golf course

(3) In such circumstances, the Defendant cannot take into account the opinions of the residents in light of the legislative intent of the National Land Planning Act as a drafting authority of an urban management plan. The Plaintiff’s golf course construction is more likely to cause various damages and conflicts among regions and the neighboring residents due to the instant negative aspects than the positive aspects on the relevant region. As such, the Plaintiff’s proposal should not be reflected in the formulation of an urban management plan as a result of a comprehensive review of such circumstances.

C. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Governor of Jeollabuk-do on August 24, 2007, but on November 13, 2007, the Governor of Jeollabuk-do rejected the Plaintiff’s administrative appeal on the ground that, although the Plaintiff’s proposal to formulate the Plaintiff’s urban management planning included the content of modifying the specific use area of the area planned for the golf course construction, the Plaintiff did not have the right to propose the alteration of the specific use area, and thus, cannot

2. The parties' assertion

A. The plaintiff's assertion

The Defendant shall formulate a basic investigation for drafting, unless the Plaintiff’s proposal for urban management planning is in conflict with the restrictions prescribed by the relevant Acts and subordinate statutes. Thus, without any legal basis, the Plaintiff’s drafting proposal may not be refused to review whether it is in conflict with the relevant Acts and subordinate statutes, and where the outcome of the examination conforms to the statutory requirements, it shall be formulated and decided in accordance with the proposal, barring any special circumstances, and the drafting proposal meeting the statutory requirements may not be refused for reasons other than the grounds for restrictions prescribed by the relevant Acts and subordinate statutes. However, the Defendant presented all measures for losses to neighboring residents on the land where the Plaintiff may construct a golf course at the time of drafting the urban management plan, and there is no room for some damage among neighboring residents to occur. Rather, the instant disposition is unlawful since the Defendant rejected the Plaintiff’s drafting proposal based only on the Dissenting Opinion of a remote resident without any legal and scientific basis, without balancing profits.

B. The defendant's main defense

The Plaintiff’s area where the Plaintiff wishes to install a golf course consists of 25.4% of an agricultural and forest area and 74.6% of the control area, so the Defendant’s establishment of a golf course in order to alter the specific use area to the planned management area, and the Governor of Jeollabuk-do must implement the procedures for alteration of the specific use area. However, as to the above alteration of the specific use area, there is no right to propose the formulation of the Plaintiff’s urban management plan including the alteration of the specific use area, and there is no right to propose the formulation, such as the urban management plan on the installation of infrastructure. Therefore, even if the Defendant rejected the Plaintiff’s proposal for formulation of the urban management plan including the alteration of the specific use area, it does not affect the Plaintiff’

3. Determination

(a) Relevant statutes;

It is as shown in the attached Form.

B. Judgment on the Defendant’s main defense of safety

According to Gap's statement, it can be acknowledged that the business site area that the plaintiff intends to install a golf course is 213,989 square meters, and its specific use area is 54,358 square meters in an agricultural and forest area (25.4%) and 159,631 square meters in an area subject to management (74.6%). The plaintiff proposed to the defendant to formulate an urban management plan on the installation of a golf course, and the plaintiff stated that "a golf course constitutes sports facilities among infrastructure, and thus, constitutes a planned urban facility" in the items in the grounds for drafting and determining the proposal, "a person who decides to convert the specific use area of the area subject to a

However, in light of the fact that the above change of specific use area is a subsequent procedure to proceed when the defendant accepted a proposal for formulating an urban management plan for the construction of golf courses by the plaintiff and makes a drafting decision, the plaintiff's modification of specific use area in the content of the proposal for formulating an urban management plan concerning the construction of golf courses is merely an incidental reference to the necessity of changing specific use area as a subsequent procedure to be undertaken on the premise that the plaintiff's proposal is reflected in the formulation of an urban management plan, and it is not deemed that the defendant applied for an independent change at the same

Therefore, regardless of whether the Plaintiff has the right to file an application under the laws and regulations on the alteration of specific use areas, the drafting proposal for the establishment of the Plaintiff’s golf course is based on the right to propose the formulation of an urban management plan concerning the establishment, maintenance, and improvement of infrastructure of residents or interested parties as stipulated in Article 26 of the National Land Planning and Utilization Act. Therefore, the Defendant’s rejection of such application by the Plaintiff, who is the right to

Even if the Plaintiff is deemed to have applied for the change of specific use area in advance in preparation for the case where the drafting proposal for the change of specific use area is accepted, there is no right to file an application for the change of specific use area with the Plaintiff, and thus, the Plaintiff cannot be contested as an appeal litigation against the rejection of the application for the change of specific use area. However, as alleged by the Defendant, the right to file an application is legally recognized, the illegality of the rejection disposition can be contested as an appeal litigation against the drafting proposal for the establishment of specific use area, because the right to file an appeal is legally recognized. If the illegality of the rejection disposition can not be contested even if the Plaintiff refuses the drafting proposal on the ground that there is no mentioning the change of specific use area in the content of the proposal, solely on the ground that there is a reference in the proposal about the change of specific use area, such as the public interest of promoting public welfare through efficient utilization of the land and the guarantee of personal property rights, the legislative purport of Article 26 of the National Land Planning Act guaranteeing the right to file an application for the formulation of the urban management

Therefore, the defendant's main defense that the disposition of this case is not an administrative disposition is without merit.

C. Whether the instant disposition is unlawful

(1) The term “administrative plan” means the establishment of an activity criteria to realize a certain order at a certain point in the future by integrating and coordinating relevant administrative means to achieve a specific administrative objective, such as the construction, maintenance, improvement, etc. of a city based on professional and technical judgments on administration, and only the abstract administrative goals and procedures are prescribed in relevant Acts and subordinate statutes, such as the National Land Planning Act, and there are no specific provisions regarding the contents of the administrative plan, and thus, the administrative body has a relatively wide range of freedom in formulating and determining a specific administrative plan. However, the freedom of such formation, which an administrative body has, is not unlimited, but is not unlimited, but should be fairly compared and calculated between public and private interests as well as between public and private interests. Accordingly, the administrative body’s establishment and determination of the administrative plan is subject to the restriction on the legitimate comparison of the interests of the persons involved in the administrative plan, including the establishment of and determination of the administrative plan, or where the benefits are omitted, but lack in legitimacy and objectivity. It is also an abuse of discretion to decide the administrative plan.

(2) In full view of the following facts as to the instant case’s health room, Eul-1, 2, 4, 6, 8, 9, and 11, each of the images of Eul-1 to 10, and the entire purport of the pleadings as a result of the on-site inspection by this Court, the following facts may be acknowledged.

In the vicinity of the Plaintiff’s golf course construction site, water is used as drinking water for residents in the village because water supply is not installed as a notification zone, and the whole area for the project is used as a mineral mining area from the Japanese colonial era to around 1990, and the ground area for the project has been completely closed from around 1990. However, there is an underground pit and the ground water inside the pit has been installed at the entrance of the pit for the purpose of using groundwater as agricultural water. However, the possibility that if the Plaintiff uses an agrochemical for remaining management by installing a golf course, it may cause trouble in the supply of drinking water and agricultural water by rapidly spreading the pesticide through underground water flowing through the pit, and the risk of damage to the natural environment is entirely excluded.

In addition, when the project area is a two-party member located in the upper school of the Seocheon-si, Seocheon-si, a project area is highly likely to cause natural disasters, such as flood and landslide, due to the nature of the topography, and if the distance between the project area and neighboring villages is not less than 100 meters, it is presumed that the personal and property damage caused by the concentration would be reasonable. In fact, the damage recovery cost was paid due to the damage to the village entry road even when the concentration occurred around August 2005. However, if trees are damaged due to the construction of the golf course by the plaintiff's golf course, the possibility of increasing the risk of landslide and the degree of human and physical damage cannot be ruled out.

In addition, more than half of residents of the neighboring village in the area where the project is carried out have expressed opposition to the construction of golf courses on the grounds that the above groundwater pollution and the possibility of natural disasters, the risk of exhaustion of agricultural water due to damage to the reservoir, the image of the clean area is damaged, and the agriculture and livestock industry which became the living means of residents are likely to decline.

In addition to the above circumstances, the National Land Planning and Utilization Act aims at promoting public welfare and improving the quality of life of the people through the formulation and implementation of plans for the utilization, development and preservation of the national land, and at the same time at the same time at the cost of preserving the national land through the efficient utilization and smooth supply of land and various facilities, the preservation of the natural environment and scenery, the improvement and restoration of damaged natural environment and scenery, and the preservation of regional identity. Therefore, even though the positive effects of employment through golf courses creation, the regional economy is activated through the introduction of some convenient facilities, other values such as the preservation of the natural environment, the livelihood and regional identity of the natural environment and residents can not be excluded from the utilization of the national land. As one of the measures to ensure the harmonious guarantee of common prosperity and public interest and private interests of the residents when an urban management planning authority formulates an urban management plan, it seems that there is a provision that the opinions of the residents should be heard and reflected in the relevant urban management planning plan (Article 27). Considering the fact that there is no significant need for the establishment of golf courses as the most negative interests of the Plaintiff’s establishment of golf courses.

Accordingly, even if the plaintiff presents a solution to various adverse effects that the defendant and the local residents concerned are concerned through the drafting proposal, it cannot be completely ruled out the negative effects, and it is more necessary to protect the benefits that may be infringed than the benefits that can be promoted through the construction of the golf course, and it seems that the disposition in this case was conducted based on such profit balancing.

In full view of the above circumstances, it cannot be deemed that the Defendant did not withhold the Plaintiff’s proposal at all or omitted matters that should have been included in the subject of consideration of the profit balancing in determining whether it was reflected in the Defendant’s drafting of an urban management plan, and furthermore, there is no evidence to deem that there was lack of legitimacy and objectivity even though it imposed a balance on

Ultimately, the instant disposition is lawful unless there is proof of illegality of the instant disposition.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as there is no reasonable ground.

Judges Jeong Il-il (Presiding Judge) and Park Il-young