Whether discretion has been given to an administrative agency to determine whether a building report deemed to have obtained permission for development activities under the National Land Planning and Utilization Act in compliance with the requirements and standards for permission for development activities under Article 56 of the National Land Planning and Utilization Act (affirmative); and whether an administrative agency may refuse to accept the report where a building report deemed to have obtained permission for development activities under the National Land Planning and Utilization Act fails to meet the

Article 56 of the National Land Planning and Utilization Act, Article 11(5)3 of the Building Act

Supreme Court en banc Decision 2010Du14954 Decided January 20, 201 (Gong2011Sang, 427) Supreme Court en banc Decision 2017Du50188 Decided October 26, 2017

East Industry Co., Ltd. (Law Firm Jeong-ju, Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant)

Ansan Market (Attorney Lee Won-gu et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu62428 decided June 14, 2018

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. A. Permission to engage in development activities under Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) is granted to an administrative agency in determining whether the prohibited requirements and permission criteria are met the requirements and standards because there are many parts prescribed as indefinite concepts. Moreover, the acceptance of a building report resulting from changes in the form and quality of land within a specific specific specific use area prescribed by the National Land Planning and Utilization Act has the nature of a building report under the Building Act and a permission to engage in development activities under the National Land Planning and Utilization Act due to the legal fiction of permission under Articles 14(2), 11(5) and (6) of the Building Act. Thus, if a building report deemed to have obtained permission under the National Land Planning and Utilization Act fails to meet the requirements for permission to engage in development activities under the National Land Planning and Utilization Act, the administrative agency may reject such permission (see, e.g., Supreme Court en banc Decision 2010Du14954, Jan. 20, 201; 2017Du5188, Oct. 26, 2017)

B. Article 56(1) [Attachment 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act on the basis of delegation of Article 58(1) and (3) of the National Land Planning and Utilization Act provides for the following: “whether it is in harmony with the actual use condition of surrounding areas or a land use plan, the height of buildings, gradient of land, trees, water flow, water drainage, drainage of river, lake and marsh, wetlands, etc., or surrounding environment or landscape,” “whether the construction of infrastructure following the relevant development activity or securing of sites necessary therefor is appropriate,” and “whether it interferes with surrounding traffic flow.”

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following circumstances.

A. On November 22, 2011, the Plaintiff, who runs a construction waste interim disposal business, etc., requested the Defendant to request the Defendant to move the place of business to the (location omitted) and one parcel (hereinafter “instant ○○ Dong site”). The Defendant notified the Defendant on November 22, 201, “I will, on the condition that I will permit the transfer on the condition that I will take countermeasures because the road width (5.5m) is so narrow as to make it difficult for the Defendant to walk the site prior to the business (hereinafter “instant change notification”).

B. On March 21, 2012, the Defendant notified the Plaintiff that “I will permit the transfer” portion of the instant notification of change to “I will be transferable.”

C. The Plaintiff filed an application to change the construction waste disposal business with the purport of moving the place of business to the instant ○○ Dong site. However, the Defendant notified the Defendant of the refusal of the application on the ground that it was insufficient to prepare measures for traffic communication problems, etc. regarding access roads (hereinafter “instant refusal notification”).

D. Accordingly, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant modified notification. The first instance court rendered a favorable judgment on the ground that “the instant modified notification was revoked or withdrawn from the instant modified notification, which is a beneficial administrative disposition, and thus has exceeded the discretionary power.” The said judgment became final and conclusive by appeal and final appeal (hereinafter “instant administrative litigation”).

E. Since then, the Plaintiff submitted to the Defendant a construction report and an application for permission for development activities (construction of structures, alteration of form and quality of land, and object value) to install waste disposal facilities on the instant ○○ Dong site, and presented complementary measures for traffic communication problems of access roads, such as a plan to install a alleviated lane on some sections of the access roads and to operate the access roads as one-way traffic. The Defendant demanded the Plaintiff to supplement the said building report on several occasions, but the Plaintiff was partially required to perform the supplementary measures and refused to implement the said construction report on the following grounds:

F. Accordingly, on August 8, 2016, the Defendant notified the Plaintiff that the building report was returned on the ground that the Plaintiff failed to implement the necessary corrective measures, such as establishing a more active improvement plan for traffic communication of access roads (hereinafter “instant return disposition”).

G. The width of access road to the site of this case is about 5.5m to 5.8m, and the width of large-scale cargo vehicles scheduled to be operated at the Plaintiff’s workplace is about 2.5m. At the time of the instant return disposition, transportation-related enterprises, such as ○○ Transportation, △△ Transportation, and △△ Group, were already located near the site of this case.

3. Examining the above facts in light of the contents of the relevant statutes and the legal principles as seen earlier, the instant disposition on rejection cannot be deemed unlawful on the ground that the Plaintiff’s building report did not meet the requirements for permission for development activities under the National Land Planning

A. From the time of the notification of the instant change in permission to change, the Defendant requested the Plaintiff to point out in detail that the access road width of the instant ○○dong site was so narrow that it would be difficult to drive large vehicles, and to devise countermeasures, even after that time, the Defendant demanded the Plaintiff to take effective measures for traffic flow issues, etc. to the Plaintiff several times until the instant return disposition was issued. As such, it cannot be deemed unclear to the extent that the Defendant’s request for supplement is unclear, and the Plaintiff could have sufficiently known the purport of the Defendant’s request for supplement or the reason for the instant return disposition.

B. It cannot be deemed that the Defendant specifically examined whether the installation of waste disposal facilities satisfies the requirements for permission for development activities at the time of notifying the instant change permission, or that the instant change permission was resolved by the complementary measures presented by the Plaintiff. The instant change permission notification itself is also issued conditionally to consider measures for traffic communication problems. Accordingly, the Defendant may refuse to accept the instant building report, which was issued after the instant change permission notification, if it fails to meet the requirements for permission for development activities under the National Land Planning and Utilization Act, separately.

C. Even if a easing lane is installed on some sections of the access road to the site of the instant case, it seems difficult to smoothly operate the access road, the width of which is about 5.5m to 5m to 5m or 5.8m wide, at the Plaintiff’s workplace. Furthermore, although the Plaintiff offered a supplementary measure to operate the access road as one-way passage, it is difficult to view it as a realistic and effective alternative when considering the size of the large truck and surrounding traffic conditions, etc.

D. As such, insofar as it is anticipated that the Plaintiff’s relocation of the place of business to the instant ○○ Dong site would interfere with the neighboring traffic flow, even if the preparation of complementary measures is somewhat excessive to the Plaintiff, it is reasonable to assume that the Plaintiff, the applicant, is the Plaintiff, who is the Plaintiff. The Defendant’s demand that the Plaintiff establish effective measures to supplement the traffic flow problem of access roads, provided an opportunity to supplement the Plaintiff on the premise that the requirements for permission of development are not satisfied, and thus, the Defendant cannot be deemed to have specific obligation to explain to the Plaintiff what extent the supplementary measures are needed.

E. The type and frequency of business of transportation-related companies located near the instant ○○ Dong site cannot be determined to be identical to the number and frequency of vehicles, the surrounding traffic conditions at the time of the construction permission or the construction report for each of the above companies, and the Plaintiff’s workplace at the time of the construction report. Therefore, unlike the above companies, the Defendant cannot be deemed to have violated the principle of equity even if the Defendant did not accept the construction report with respect to the Plaintiff.

F. The purport of the judgment related to the administrative litigation of this case is to suggest complementary measures regarding traffic communication problem of access roads, so it is unlawful to revoke the instant modified permission notification itself without requiring additional supplementation even if it is insufficient. After the Defendant finally demanding the Plaintiff to take additional supplement measures, deeming the instant building report failed to meet the requirements for permission for development activities under the National Land Planning Act and subordinate statutes, it cannot be deemed as going against the binding force of the judgment related to the administrative litigation of this case.

4. Therefore, the lower court did not err by misapprehending the principle of clarity in administrative acts, the duty to explain, or the legal principles on deviation from or abuse of discretion, etc., as alleged in the grounds of appeal, thereby adversely affecting the conclusion of the judgment.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)