207Guhap14107 Revocation of Disposition of Rejecting an application for building permit

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The head of Gangseo-gu Seoul Metropolitan Government

A litigation performer Lee-ju, leaptable

September 4, 2007

October 23, 2007

1. On December 4, 2006, the defendant revoked the disposition rejecting an application for building permit filed against the plaintiff on December 4, 2006.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the overall purport of the pleadings in each entry in Gap evidence 1, Gap evidence 4, Gap evidence 11, Eul evidence 4, and Eul evidence 4:

A. On September 13, 2006, the Plaintiff filed an application with the Defendant for a construction permit with the content that the Plaintiff newly constructs accommodation facilities (nore) with the 1st underground floor and the 8th floor area above the 617th floor area above the ground (hereinafter referred to as “instant site”) in the Gangseo-gu Seoul Metropolitan Government x X 16m square meters (hereinafter referred to as “instant site”).

B. However, on December 4, 2006, the Defendant returned the instant application for construction permission to the Plaintiff on the ground that the instant site was built jointly with the instant site as the district unit planning zone under the urban planning and the instant site, and that the instant site was rejected by the Gangseo-gu Committee for Deliberation on the 7th Urban Planning in order to be able to newly construct only the instant site, the district unit plan should be modified first, and that the instant application for construction permission was rejected (hereinafter referred to as the “instant return disposition”).

C. Accordingly, on December 27, 2006, the Plaintiff filed an administrative appeal with the Mayor of Seoul Special Metropolitan City, and the Seoul Special Metropolitan City Mayor rendered a ruling dismissing the Plaintiff’s appeal on April 10, 2007 in accordance with the resolution of the Seoul Special Administrative Appeals Commission.

2. Whether the return disposition of this case is legitimate

A. The plaintiff's assertion

A neighboring site has already been built of neighborhood living facilities and housing on 1989 and 1990, and the owners of the above site agreed to the sole development of the instant site by the Plaintiff as the Plaintiff did not intend to engage in development activities. All accommodation facilities are built in and around the instant site, and joint development is conducted in line with the district unit planning, according to the Defendant’s standard, in accordance with the Defendant’s standard.

In light of the fact that a new establishment of accommodation facility is not allowed more than 30%, in any case, the Plaintiff is unable to build accommodation facilities that the Plaintiff intends to operate on the site of this case. The instant return disposition is unlawful as it excessively infringes on an individual’s private property rights, and is unlawful by deviation and abuse of discretionary power.

(b) Related statutes;

Attached Form 3 is as described in the "Related Acts and subordinate statutes".

(c) Facts of recognition;

The following facts may be acknowledged in full view of the statements and images of Gap evidence Nos. 5, 6, 7-1, 2, 8, 9, 10-1, 2, 12-1, 10, 13-1, 13-2, 5, 6, 7-1, 5, 5, 7-2, and 10-1, 2, and 10-1, 13-2, 13-2, 5, 5, 6, and 7-2, respectively.

(1) On January 22, 1997, the instant land is subject to the old Urban Planning Act, No. 1997 - 11 of the Seoul Metropolitan Government Notice No. 1997

(B) Article 12 of the National Land Planning and Utilization Act (amended by Act No. 6655 of Feb. 4, 2002), and Article 6 of the Enforcement Decree of the same Act, as a special-purpose area has been changed to a general commercial area from a general residential area to a general urban area, the new city planning was determined as a new city-oriented urban design district (Article 655 of the National Land Planning and Utilization Act, No. 6655, Feb. 4, 2002).

(2) Under Article 62 of the former Building Act (amended by Act No. 6247 of Jan. 28, 200), the Defendant prepared a new city design district, with respect to the boundary of the Do facilities on the earth-centered (Yeeeb 2), determined as a new city design district, and with respect to a general commercial district, set the minimum site area as 200m2 in the case of a general commercial district, and set the guidelines to regulate joint construction if the above site area falls short of the minimum site area (referring to the above guidelines that must be observed), and the instant site which falls short of the minimum site area is less than the above site area under the district unit plan ( inside), which is approved as a result of deliberation by the Urban Design Committee of Gangseo-gu, Seoul Special Metropolitan City; the above city design plan was finalized on Nov. 21, 1998 by Act No. 99828 of Nov. 28, 200, which was repealed by the former Urban Planning Act No. 2654, Feb. 26, 20198.

(3) Meanwhile, pursuant to Article 71 (1) 8 [Attachment 9] subparagraph 1 (h) of the Enforcement Decree of the National Land Planning and Utilization Act and Article 32 (2) of the Urban Planning Ordinance of the Seoul Metropolitan Government, the defendant, in principle, shall not permit the construction and extension of the general accommodation facilities to the general accommodation facilities in the Gangseo-gu Seoul Metropolitan Government, and shall delegate the same to the Urban Planning Committee (drawing any opinion) and limit it to (drawing any opinion) by entrusting the Urban Planning Committee, pursuant to the public opinion that the designation of the specific use area is not in line with the purpose of designation and infringes on the right to personal property, the defendant has determined "a plan to process the construction permission for accommodation facilities without deliberation by the Urban Planning Committee," and "a plan to process the construction permission for accommodation facilities" in the case of new construction in the above guidelines, shall be the ratio of the length of the parcel adjacent to the residential facilities among the total length of the lots applied for.

(4) The instant site is currently designated as “the highest height district, airport facility protection district,” “specific use district,” “general commercial area,” and “Class 1 district unit planning zone,” respectively. In the event of the construction of accommodation facilities independently from the instant site, construction permission can be granted to less than 30%, and in the event of the construction of accommodation facilities under joint development with the neighboring site, application for construction permission may be rejected in excess of 30% of the dwelling contact rate.

(5) GGGGG - HG - HG - HG - HG - HG 2 underground level on November 2, 1989, and 3rd floor reinforced concrete structure on the ground level on the ground level, and - GG - HG - HG 1 underground floor on the ground level on March 23, 1990, and 2nd floor on the ground level on the ground level on the ground level. The Plaintiff obtained consent to the alteration of the planning zone from the head of the tea-dong, the owner of each of the above site at the time of the application for the building permit.

(6) The instant site is currently used as a parking lot for a nearbyr, and most surrounding areas around the instant site are influences, restaurants, singing rooms, etc. centering on the instant site.

(7) At present, the urban design plan of the Defendant’s new city (Teeb 2) with respect to the global center was abolished as the site area standard was abolished.

D. Determination

(1) As long as the application for a building permit is not subject to any restriction on land stipulated by the relevant laws, such as the Building Act, a building permit holder shall grant a building permit under the same Act as a matter of course, and notwithstanding the absence of the need for significant public interest, a permit to a person meeting the requirements shall not be denied for reasons other than the grounds for restriction stipulated under the relevant laws and regulations. Meanwhile, pursuant to Article 54 of the National Land Planning Act and Article 8-2 (1) of the former National Land Planning Act, where a person intends to build a building within a district unit planning zone and alter the purpose of use of a building, he/she shall change the purpose of use in compliance with the relevant district unit planning, and the building permit holder shall verify whether the construction of a building in the site intended for the construction is appropriate for the district unit planning. Thus, if the construction in the district unit planning zone is not appropriate for the district unit planning (see Supreme Court Decision 2006Du1227, Nov. 9, 2006).

(2) However, in the instant case, the Defendant established a district unit plan which requires joint development with a new site area of 200 square meters around 1998, such as the instant site (Geeb 2), on the ground that the instant site falls short of the standard. However, it cannot be deemed that the regulatory meaning of the instant district unit plan which requires joint development with a neighboring site due to the abolition of the current minimum site area standard, cannot be deemed to continue to exist. If the Plaintiff seeks to build new accommodation at the time of accommodation by jointly developing a neighboring site with a site of this case, it cannot be deemed that the Defendant’s application for construction permit again cannot be permitted by the Defendant for accommodation facilities exceeding 30 percent, because it is against the Plaintiff’s or neighboring site owners to jointly cooperate with the instant site of this case, and thus, it cannot be deemed that the Plaintiff’s establishment of a new district unit plan that does not require the Plaintiff to either acquire or sell accommodation facilities at least to neighboring owners of the instant site of this case on the ground that it did not constitute an infringement of the Plaintiff’s right to open the instant site.

(3) Therefore, the instant disposition is unlawful by abusing discretion.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and it is decided as per the disposition by admitting it.

Judges in fixed form of judge

Judges Kim Jong-hee -

Judges Lord Do-

Related Acts and subordinate statutes

[Building Act]

Article 8 (Building Permission)

(1) A person who intends to construct or repair a building shall obtain permission from the head of a Si/Gun/Gu: Provided, That in cases of a light-ro in which a building of 21 floors or the use and size prescribed by Presidential Decree is to be constructed in the Special Metropolitan City or Metropolitan Cities, permission shall be obtained from the Special Metropolitan City Mayor or Metropolitan City Mayor.

Article 8-2 (Council for Complex Civil Petitions en bloc)

(1) Where the permitting authority intends to grant a permit under Article 8, he/she shall hold a council for processing complex civil petitions en bloc, under the conditions as prescribed by the Presidential Decree, to confirm whether the construction of a building for the intended purpose, size or form on the planned site is in conformity with Articles 54 and 56 through 62, and 76 through 82 of the National Land Planning and Utilization Act, or other relevant Acts and subordinate statutes as prescribed by the Presidential Decree, and to deal with the matters as prescribed in the subparagraphs of Article 7 (6) and (7) or the subparagraphs of Article 8 (6) and (7).

[The former National Land Planning and Utilization Act (amended by Act No.8564 of July 27, 2007)]

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

4. The term "urban management planning" means the following plans concerning land for the development, maintenance, and preservation of the Special Metropolitan City, a Metropolitan City, a Si, or a Gun, including land for use, transportation, environment, landscape, landscape, safety, industries, safety, information and communications, health, welfare, security, culture, etc.:

(e) Plans for designation or alteration of a district unit planning zone and district unit planning;

5. The term “district plan” means an urban management plan which is formulated to rationalize land utilization, to improve its functions, to secure a good environment, and to systematically and systematically manage the relevant area in a part of that area subject to the formulation of an urban planning;

Article 30 (Determination of Urban Management Planning)

(1) When a Mayor/Do Governor intends to determine an urban management plan, he/she shall consult with the head of the relevant administrative agency in advance, and when the Minister of Construction and Transportation intends to determine an urban management plan, he/she shall consult with the head of the relevant central administrative agency in advance. In such cases, the head of the agency in receipt of the request for consultation shall present his/her opinion

(5) Paragraphs (1) through (4) shall apply mutatis mutandis to any modification to the determined urban management planning: Provided, That this shall not apply to any modification to insignificant matters prescribed by Presidential Decree.

Where it is intended to construct a building or alter the usage of a building in a district-unit planning zone, within the district-unit planning zone, it shall do so in compliance with the district-unit plan: Provided, That the same shall not apply where a district-unit plan is not formulated and where a building is to be constructed by phases with a starting difference within the scope of the district-unit plan.