[1] Whether a person satisfies the requirements for permission of development activities under the National Land Planning and Utilization Act falls under the discretionary judgment area of an administrative agency (affirmative), and the subject of judicial review and the criteria for its determination

[2] In a case where there is a concern about the outflow of soil due to development activities, the method of determining whether the person holding the permission for development activities grants permission

[3] In a case where an administrative agency did not meet the statutory permission criteria stipulated in the disposition form as an indefinite concept with regard to an application for permission for development activities, and subsequently rejected the application, whether the administrative agency should clarify the grounds for non-permission in the litigation procedure for revocation of non-permission (affirmative) and whether the other party who disputes the validity of non-permission disposition in this case needs to make an additional assertion in order to clarify the illegality of deviation and abuse of discretionary power (affirmative)

[1] Articles 56, 57, and 58(1) and (3) of the National Land Planning and Utilization Act / [2] Articles 57(1) and (4), and 58(3) of the National Land Planning and Utilization Act, Article 56(1) [Attachment 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act / [3] Articles 56, 57, and 58 of the National Land Planning and Utilization Act

[1] Supreme Court Decision 2016Du55490 Decided March 15, 2017 (Gong2017Sang, 778) Supreme Court Decision 2016Du30866 Decided June 19, 2017

Plaintiff 1 and one other (Attorney Kim-hee, Counsel for the plaintiff-appellant)

[Defendant-Appellant] The Dong-dong Market (Attorney Hwang-ho, Counsel for defendant-appellant)

Daegu High Court Decision 2017Nu7949 decided June 15, 2018

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides for the subject matter of permission for development activities, Article 57 provides for the procedures for permission for development activities, and Article 58 provides for the standards for permission for development activities under paragraph (1) and delegates the establishment of specific standards to Presidential Decree under paragraph (3). Such permission for development activities is granted discretion to administrative agencies as to whether the requirements and standards for prohibition are met, given that there are many parts of the prohibition requirements, permission standards, etc. as an uncertain concept, and thus, whether the requirements are satisfied is within the discretionary jurisdiction of administrative agencies. Therefore, in principle, the judicial review of such requirements is subject to whether there is deviation or abuse of discretionary power, taking into account the possibility of discretion for administrative agencies’ public interest determination, and whether there is a violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decisions 2016Du5490, Mar. 15, 2017; 2016Du3866, Jun. 19, 2016).

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following circumstances.

A. A. Around June 2017, the Plaintiffs filed an application with the Defendant for permission to engage in a solar power generation business on the ground of the Dong-si ( Address 1 omitted), An orchard 9,730 square meters, and ( Address 2 omitted), an orchard 6,896 square meters (hereinafter “the instant application site”). At the time of the application, the Plaintiffs submitted a plan to “to prevent soil outflow” along with the content that “to install a drainage pipe in a naturally formed ditch under the instant application site and install a permanent retention map.”

B. On June 29, 2017, the Defendant rejected the Plaintiffs’ application due to the following reasons (hereinafter “instant disposition”).

1) The instant application is a development act aimed at installing solar power infrastructure, and is likely to damage the surrounding natural scenery and aesthetic view.

2) Article 58(1)4 of the National Land Planning and Utilization Act provides that the instant application shall be in harmony with the actual status of land use or the surrounding environment or landscape, such as water circulation and drainage, of surrounding areas. It is an area that does not meet the standards for permission for development activities and is not suitable for development activities as a result of a comprehensive examination,

C. The Defendant alleged in the first instance court that the act of developing solar power generation by the Plaintiffs could lead to excellent and earth and sand flow. However, the first instance court determined that “the Defendant’s above assertion is not based on clear grounds, such as precise analysis and evaluation results, but merely merely on a remote trend of risk, and thus it is difficult to readily conclude whether such damage is actually likely to occur.”

D. Accordingly, at the lower court’s request, the Defendant submitted a “disaster impact review report” prepared by the Marine Engineering Co., Ltd. (hereinafter “instant review report”), and the content thereof are as follows.

① The probability of flood outflow due to development activities by the Plaintiffs exceeds 52% of the “in the course of a project” compared to the “out of a project” in the frequency of 30 years, and 24.2% of the “after a project,” and soil outflow exceeds 2,721% of the “out of a project” compared to the “out of a project” in the frequency of 30 years.

(2) Even if a disaster reduction plan is established in a project area, there is a problem about the adequacy of the current location when considering the current status of residence of slope areas and neighboring residents, current status of drainage facilities adjacent to the project site, flood outflow according to the project and increase of soil outflow.

E. The instant application is currently used as a quasi-preserved mountainous district under the Mountainous Districts Management Act as an orchard, and consists of a slope of about 10 to 20§¯ from the top of the mountain at a height of 300 meters high from the tidal wave to the west, and is in the direction below.

3. The lower court determined that the Defendant’s disposition of this case was unlawful as it abused or abused discretion, on the grounds that the Plaintiffs’ installing drainage pipes and planning to install a permanent retention site was indicated in the ditches formed under the instant application site, and the Defendant’s examination of this case submitted by the Defendant was merely a document unilaterally entrusted to civil engineering engineers who did not guarantee expertise and objectivity after the Defendant lost the first instance court, and it was difficult to believe the content thereof as it is.

4. However, we cannot accept the judgment of the court below for the following reasons.

A. Article 56(1) [Attachment 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act, which was delegated by Article 58(3) of the National Land Planning and Utilization Act, one of the criteria for permission for development activities, provides that “No environmental pollution, destruction of ecosystem, damage, etc., caused by air pollution, water pollution, soil pollution, noise, vibration, dust, etc. shall occur due to development activities in the relevant area and its surrounding areas: Provided, That this shall not apply where it is attached on the condition of permission to prevent environmental pollution, prevention of danger, landscaping, creation of a green belt, and installation of a buffer zone, etc., as it is possible to prevent environmental pollution, destruction of the ecosystem, and damage caused by such development activities.” Meanwhile, Article 57 of the National Land Planning and Utilization Act provides that “The person who intends to engage in development activities shall submit an application accompanied by a plan for prevention of environmental pollution, an application for the prevention of environmental pollution to the permission authority for development activities (Paragraph 1).”

B. In light of the language and structure of the above provision, a person intending to engage in development activities when there is a possibility of soil and sand outflow shall submit a plan to prevent environmental pollution or hazards due to soil and sand outflow. The person intending to engage in development activities may examine whether it is possible to prevent environmental pollution or hazards due to soil and sand outflow, whether the content of the plan submitted by a person intending to engage in development activities complies with the prevention of environmental pollution or hazards, and if it is not possible to prevent environmental pollution or hazards, permission for development activities need not be granted.

C. Meanwhile, in a case where an administrative agency’s disposition of non-permission on an application for permission for development activities and only briefly stated the purport that the written disposition failed to meet the statutory criteria stipulated as an indefinite concept, the administrative agency should clarify the specific grounds for non-permission by presenting the basis or data for the determination that the relevant disposition was taken in the litigation procedure for revocation of non-permission. In such a case, the Plaintiff who disputes the validity of the provisional disposition of non-permission for development activities, which is a discretionary act, needs to make an additional assertion in the litigation procedure and submit data in order to clarify that there was an error of deviation or abuse of discretionary power

D. However, as seen earlier, the Defendant clarified the specific non-permission grounds that the acceptance of the application for the permission of the instant development activities through the submission of the instant review report, etc. during the instant lawsuit, and that it is difficult to prevent environmental pollution and hazards arising therefrom even if based on the plan submitted by the Plaintiffs. If so, the lower court should have deliberated by having the Plaintiffs additionally submit arguments and materials related to the illegality of the said judgment, not by simply concluding that the Defendant’s examination report submitted by the Defendant is insufficient to believe it is in violation of the law of deviation and abuse of discretion.

In other words, while filing an application for permission for development activities, the Plaintiffs submitted a plan containing the installation of a drainage pipe for the prevention of soil outflow, etc. However, unlike the Defendant’s assertion, there was no particular material in the course of litigation as to whether the instant application does not pose a risk of soil outflow or is low, or whether it is possible to prevent soil outflow due to the installation of facilities in accordance with the plan. Nevertheless, the lower court determined that the lower court erred by misapprehending the legal doctrine on permission for development activities, etc., and by failing to exhaust all necessary deliberations, it erred by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)