Whether an administrative body has a broad discretion in formulating and determining an urban or Gun management plan for the establishment of an off-road parking lot, which is an infrastructure (affirmative), and the method of determining whether it is necessary to establish an off-road parking lot / The limitation of discretion in establishing the necessity of an off-road parking lot held by an administrative body and determining the specific contents thereof / Whether an installation plan for a parking lot is unlawful in cases where the administrative body does not at all engage in the balancing of interests when it formulates and determines an installation plan for an off-road parking lot or omits any matters to be included in the objects to be considered in the balancing of interests, or where it lacks legitimacy and objectivity

Articles 43(1) and (2) of the National Land Planning and Utilization Act, Articles 2(1), 5, 29, and 30 of the Regulations on the Determination, Structure, and Installation Standards of Urban or Gun Planning Facilities; Articles 6 and 12(1) and (6) of the Parking Lot Act; Articles 5, 6, and 7-2 of the Enforcement Rule of the Parking Lot Act; Article 27 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 2003Du11056 decided Apr. 28, 2006 (Gong2006Sang, 933)

Plaintiff 1 and eight others (Law Firm, Attorneys Seo Jong-soo et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and six others (Law Firm, Attorneys Seo Jong-soo et al., Counsel for the plaintiff-appellant)

The head of Jung-gu Seoul Metropolitan Government (Bae, Kim & Lee LLC, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu54113, 56546 decided January 16, 2018

All appeals are dismissed. The costs of appeal are assessed against the defendant, including the part arising from the supplementary participation.

The grounds of appeal are examined.

1. In full view of the relevant provisions, such as Article 43(1) and (2) of the National Land Planning and Utilization Act, Articles 2(1), 5, 29, and 30 of the Regulations on the Determination, Structure, and Installation Standards of Urban or Gun Planning Facilities, Articles 6, 12(1) and (6) of the Parking Lot Act, Articles 5, 6, 6, and 7-2 of the Enforcement Rule of the Parking Lot Act, in formulating and determining an urban or Gun management plan for the establishment of an off-road parking lot (hereinafter referred to as “off-road parking lot installation plan”) to achieve the objectives of parking administration, the administrative body has a relatively wide discretion to determine the specific necessity and details according to such professional, technical, and policy judgment. Since an urban or Gun management plan requires a long-term and comprehensive nature in the relevant area to establish an off-road parking lot, there is a need to comprehensively consider the demand for parking at the time of drafting and determining the installation of the off-road parking lot, future demand for parking in the relevant area, the use of pedestrians, the street and pedestrians.

However, the administrative body’s discretion to determine the necessity of an off-road parking lot and its specific contents is not unlimited, but it can be deemed that the plan to establish the off-road parking lot is justifiable only in cases where the public interest intended to be achieved by comparing and balancing all relevant public interests and private interests is superior to other public interests or private interests infringed upon. In particular, in cases where a large number of existing houses should be removed in the process of implementing public projects rather than efficiently improving the old and inferior houses itself, the “residential rights”, which is a very important fundamental right, is not merely limited property rights, but can be collectively limited. Therefore, in order to justify such a request, the important public interest needs to be recognized. Such important public interest needs should be determined carefully based on the reliable materials. Furthermore, the economic and efficient nature of the parking lot itself and the impact on the neighboring residents in the process of operating a parking lot after establishing and operating the parking lot should be compared and balanced. In addition, if the administrative body fails to take into account such benefits when establishing and determining the installation plan and imposing the installation plan and imposing such benefits, it should be deemed unlawful.

2. The lower court determined that the instant determination of urban and Gun planning facilities and the instant implementation plan were unlawful dispositions that deviate from and abused discretion, and that the instant determination of urban and Gun planning facilities, which were scheduled to be installed, were based on the following grounds, based on the Defendant’s request for feasibility study services to the Incheon District Co., Ltd., and that the instant implementation plan was also illegal.

A. On December 10, 2014, the Defendant: (a) entrusted a fact-finding survey on the supply of and demand for parking lots to the Incheon, Co., Ltd. on December 10, 201; and (b) applied the service result report submitted to the Defendant around March 2015 to the Defendant (hereinafter “the instant feasibility study”); (c) on the basis of the determination of the instant urban and Gun planning facilities; (d) however, the instant feasibility study was conducted in a

(1) The establishment of the instant feasibility study zone is unreasonable. In the instant feasibility study conducted in 2015, ○○dong area and △△△dong area located in the middle-gu Seoul Metropolitan City where the instant parking lot is scheduled to be installed, it is inappropriate to set it as a single project impact zone (survey zone) due to the difference between the adequacy of demand and supply of parking facilities or regional characteristics. In the instant feasibility study conducted in 2013, ○○dong area was set as a single survey zone in the instant feasibility study conducted in 2015.

(2) The instant feasibility study was conducted by calculating the parking rate of 53.9% (i.e., the number of parking spaces 638/1,183), but it did not exclude the number of parking spaces, such as neighborhood living facilities and business facilities, in the survey zone, but did not exclude the number of vehicles registered in the survey zone. As such, the instant feasibility study was conducted in 2013, based on the calculation method, the parking rate of ○○dong △△△△△ was 95.7% (=2,610/10 of the number of parking spaces 2,728) in the fact-finding survey service for parking lot supply and demand conducted in 2013.

(3) It is also insufficient to analyze the cost-sharing of the feasibility study of the instant case. In the feasibility study of the instant case, the Seoul Institute of Seoul Research and Development assessed the economic feasibility of the instant project as follows: (a) the economic benefits arising from the instant project reach a total of KRW 2,154,540,000; and (b) the effect of reducing traffic cost, which is non-money benefits, reaches KRW 1,541,057,00 (only approximately KRW 71.52% of the total economic benefits), and assessed the cost-sharing of the instant project as being 1.18.18; and (c) the Seoul Institute of Seoul Research and Development assessed the economic feasibility of the instant project. On the other hand, it is not appropriate to evaluate the cost-saving effect of traffic noise reduction; and (c) it is merely 0.23,00,000 of the cost-sharing portion of the instant project, except for the items reducing traffic noise cost reduction.

B. Comprehensively taking account of the following circumstances, the need for the public interest to install the instant parking lot in the instant project site or the private interest infringed on the instant project cannot be deemed as larger.

(1) The Defendant decided on the instant urban and Gun management plan on the ground that the parking shortage in the old and poor residential areas is resolved and that the convenience of residents is enhanced. As the instant project site is designated as the highest height district (12m) and a historic and cultural environment conservation district, and development is restricted, multi-households, multi-family houses, etc. are concentrated on low-rises, and illegal parking vehicles are recognized. However, considering the surrounding residential conditions of the instant project site, future parking demand is not likely to increase significantly.

(2) The current road network near the instant project site is relatively narrow, but the vehicle traffic volume is not high. If the instant parking lot is installed, the vehicle traffic volume increases to the adjacent road network of the instant project site due to the fact that the occurrence of traffic accidents is increasing and the access to emergency motor vehicles such as fire vehicles is expected difficult.

(3) From the first floor of the instant parking lot, a parking lot of 199 pages is installed on the part of the first floor of the instant parking lot. It is planned to install a small scale of neighborhood living facilities with the total floor area of 3,843.55 square meters on the fourth floor from the part of the first floor on the ground. There was no investigation or consideration as to the demand for parking and the increase of traffic volume that may be incurred by the newly installed neighborhood living facilities.

(4) The instant project is planned to be expropriated and demolished with the land of 34 lots (private land 24, government-owned and public land 10 lots) and the 25 unit building (mainly multi-households and multi-households). The Plaintiffs and the Plaintiff’s Intervenor are the residents of the land or building being expropriated in the instant project, or of the residents of the housing subject to expropriation. Even when considering the circumstance that compensation for losses is paid due to expropriation, the degree of infringement of private interests by the residents of the housing subject to expropriation should be deemed to be significant.

3. Such determination by the lower court is justifiable in light of the legal doctrine as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on balancing interests in determining urban/Gun planning facilities, as otherwise alleged in the grounds of

4. Therefore, all appeals are 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 Kim So-young (Presiding Justice)