2018Guhap3445 Revocation of Disposition of Non-permission for development activities

A person shall be appointed.

Gunsan City

July 17, 2019

August 28, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of non-permission of development activities against the Plaintiff on October 17, 2018 is revoked.

1. Circumstances and details of the disposition;

A. The Plaintiff filed an application for permission for the electric generation business of solar energy with respect to B 4,175 square meters (hereinafter “the instant application site”) in Gunsan-si. The Plaintiff obtained permission for the electric generation business from the Governor of Jeollabuk-do and the Governor of Jeollabuk-do (hereinafter “permission for the electric generation business of this case”).

B. On August 22, 2018, the Plaintiff (hereinafter referred to as “instant application”) filed an application for permission for solar development activities (hereinafter referred to as “instant development activities”) with respect to the installation of official crops and change of form and quality of land in order to install solar power plants in the instant application for the instant project. However, the Defendant’s Urban Planning Committee (hereinafter referred to as “the instant application”) filed a new preliminary deliberation on September 6, 2018, but filed a prior deliberation with the Defendant. The Defendant’s Urban Planning Committee had the natural landscape and scenery around the village, farmland surrounding the area.

The decision was made on the ground that the farmland potential for the agricultural production infrastructure and the need for conservation were rejected.

C. On September 20, 2018, the Plaintiff filed the instant application to the Defendant, but the Defendant rejected the instant application on the ground that “A village, natural landscape and aesthetic damage in farmland surrounding area, fear of farmland erosion in which agricultural production infrastructure is installed, and need to be preserved,” (hereinafter referred to as “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached Table-related Acts and subordinate statutes are as follows.

3. Determination as to the legitimacy of the instant disposition

A. Summary of the plaintiff's assertion

The Defendant, due to the instant development activities, rejected the instant application even though there was no risk that natural landscape and aesthetic view around the instant project application site would have been destroyed or that agricultural production infrastructure could have been installed. Therefore, the instant disposition was made in deviation from and abusing discretion, such as misconception of facts and violation of the principle of proportionality and equality, and thus, was unlawful.

B. Relevant legal principles

In full view of the provisions of Article 56(1)1 and 2, Article 58(1)4 and (3) of the National Land Planning and Utilization Act, and Article 56(1) [Attachment Table 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act, permission for installation of a structure or permission for alteration of the form and quality of land, etc. is stipulated as an indefinite concept, and thus, administrative agencies are granted discretion to determine whether such requirements are met. Meanwhile, in principle, judicial review of discretionary action is limited to whether there is deviation or abuse of discretionary power, taking into account the possibility of public interest determination by the administrative agencies at their discretion. Review of whether deviation or abuse of discretionary power is subject to determination of facts, proportionality, and equality, and the burden of proof is borne by a person disputing such deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2005Du1657, Apr. 17, 2015).

Furthermore, when examining whether there is deviation or abuse of discretionary authority with respect to permission of an administrative agency for development activities that are likely to cause environmental damage or pollution, the determination should be made carefully by taking into account the legislative purport of various regulations on the balance of rights and interests and the protection of environmental rights among interested parties who have conflicting interests with the specific circumstances, such as the current use of land and living environment. Therefore, the determination and determination should take into account the following: “All citizens shall have the right to live in a healthy and pleasant environment, and the State and citizens shall endeavor to preserve the environment.” Article 35(1) of the Constitution specifies environmental rights as fundamental rights under the Constitution and imposes an obligation to endeavor to protect the environment on the State and citizens; Article 5(1) of the Framework Act on Environmental Policy sets forth the citizens’ rights and duties to endeavor for environmental conservation and the State and local governments; and Articles 1, 4, 5, and 6 of the Act on Environmental Policy provides that the State, local governments and citizens need to take into account the situation where there is any apparent need to use the environment in the future.”

C. Determination

In light of the above legal principles, comprehensively taking account of the following facts and circumstances acknowledged by adding the following facts and the purport of the entire pleadings as a result of the court’s verification, the above facts of recognition and the evidence mentioned above, Gap evidence Nos. 4, 5, 7, Eul evidence Nos. 3 through 5 (including the number number; hereinafter the same shall apply), and Eul evidence Nos. 3 through 5 (including the number number; hereinafter the same shall apply) as to the instant case, the disposition of this case which rejected the plaintiff’s application for permission of development acts cannot be deemed to have deviated

① The land category to which the instant application was filed is an agricultural and forest area under Article 36(1)3 of the National Land Planning and Utilization Act; and the Plaintiff’s instant application (Evidence B No. 2) constitutes an agricultural and forest area as stated in the Plaintiff’s instant application (Evidence B).

(2) Articles 56(1)1 and 2, 58(1)2, and 51(1)2, and 3 of the Enforcement Decree of the National Land Planning and Utilization Act stipulate that the subject of permission to engage in development activities shall be the establishment of structures, and changes in the form and quality of land. An administrative agency shall, only when the subject of permission to engage in development activities satisfies the standards for permission to engage in development activities, prescribe that an administrative agency shall engage in permission to engage in development activities, and Article 58(1)4 of the National Land Planning and Utilization Act and Article 56(1) [Attachment Table 1-2] 1(d) of the Enforcement Decree of the same Act shall not damage the surrounding natural scenery and aesthetic view.

③ In light of the fact that the C Village is located in the vicinity of the project application site, and the project application site of this case is adjacent to E, which is the direction of D University, from C University to D University, and the face value of the application for the development permit of this case is considerably large to 4,175 meters, the possibility that if solar power infrastructure is constructed in the project application site of this case, it may cause damage to the natural landscape and aesthetic view, and it is likely that the neighboring discussions of similar conditions will also be developed indiscreetly.

④ Article 58(3) of the National Land Planning and Utilization Act, Article 56(1) and (4) of the Enforcement Decree of the National Land Planning and Utilization Act (Ordinance No. 569 of the Ministry of Land, Infrastructure and Transport) provides that the operation guidelines for permission to open land based on Article 58(3) of the National Land Planning and Utilization Act (Ordinance No. 569) 3-2-1 (1) does not need to be preserved because it does not fall under good farmland, but does not fall under good farmland. According to the reply of the Ministry of Agriculture, Food and Rural Affairs to the inquiry of the Jeonnam-do Governor, the superior farmland area under Article 37(2) of the Farmland Act refers to the farmland whose agricultural production has been maintained, such as arable land rearrangement and repair facilities, but it is not necessarily required within the agriculture promotion area, because agricultural production infrastructure has high agricultural productivity, it is adjacent to the road on which the project application in this case has been filed, making it easy to pass through, and it is not necessary to be preserved even if it is installed in the agriculture promotion area.

(5) Even if the State promotes policies to actively encourage the distribution of new and renewable energy production facilities in order to diversify energy sources in the production of electricity, change eco-friendly sources of energy, and promote the reduction of greenhouse gas emissions, and each solar energy is mined as one of the new and renewable energy, such energy-oriented public interests shall be systematically developed in consideration of the surrounding natural exchange progress so that scenery, etc. is not damaged by reckless development of the national land.

(6) In light of the purport of the relevant Acts and subordinate statutes aiming at preventing the damage of landscapes, etc. due to the reckless development of national land and taking systematic development activities, it is difficult to view that the Plaintiff’s private interest infringed by the instant disposition is larger than such public interest.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-il

Judges Hwang Young-ju

Judges Kim Jong-hoon

Relevant statutes

National Land Planning and Utilization Act

Article 1 (Purpose)

The purpose of this Act is to promote public welfare and to upgrade the quality of people's living by prescribing matters necessary for the formulation, implementation, etc. of plans for the utilization and preservation of national land.

Article 6 (Classification of Use of National Land)

National land shall be classified into a specific-use area identical to multi-level foods in consideration of the actual conditions and characteristics of land utilization, future direction for land utilization, balanced development between regions, etc.

3. Agricultural and forest areas: Agricultural development areas under the Farmland Act, or mountainous district management areas under the same Act, which do not belong to urban areas;

Article 7 (Duty to Manage by Specific-Use Area)

In order to efficiently utilize and manage special-purpose areas determined pursuant to Article 6, the State or a local government shall take necessary measures for maintenance and preservation of special-purpose areas, as prescribed in the following subparagraphs:

3. Agricultural and forest areas: Promotion of the agricultural and forest industry, and conservation and land of forests, as prescribed by this Act or related Acts;

shall prepare investigations and measures necessary for sex.

Article 36 (Designation of Specific-Use Area)

(1) The Minister of Land, Infrastructure and Transport, a Mayor/Do Governor or a large city Mayor shall use any of the following purposes:

The designation or change of a region shall be determined by an urban or Gun management plan.

3. Agricultural and forest area; and

Article 56 (Permission for Development Activities)

(1) Any of the following acts, which are prescribed by Presidential Decree (hereinafter referred to as "development activities"):

(d) A person who intends to engage in a business shall be the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Metropolitan Autonomous City Mayor, a Special Self-Governing Province Governor, or

Permission for development activities (hereinafter referred to as "permission for development activities") shall be obtained from the head of a Gun: Provided, That an urban/Gun planning project (other areas)

The same shall not apply to any act under an urban or Gun planning project pursuant to Acts (including a restricted project for an urban or Gun planning project).

of this chapter.

1. Construction of buildings, or installation of structures;

2. Changing the form and quality of land (excluding changing the form and quality of land for farming, as prescribed by Presidential Decree);

(2)

Article 58 (Standards, etc. for Permission for Development Activities)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors, Special Self-Governing City Mayors, Special Self-Governing Province Governor, or head of a Si/Gun

Permission for development activities or permission for modification shall be granted only where the details of application meet the following standards:

of this section.

1. To meet the scale of development activities prescribed by Presidential Decree in consideration of the characteristics of specific-use areas: Provided, That they shall meet:

Development activities are performed for a rural development project under subparagraph 4 of Article 2 of the Rearrangement of Agricultural and Fishing Villages Act;

No restrictions on the scale of development activities shall be imposed in cases prescribed by Presidential Decree.

2. It shall not violate the details of an urban or Gun management plan and a plan for growth management referred to in paragraph (4);

3. Not to hamper the implementation of an urban or Gun planning project.

4. The actual status of land use or land use plan in neighboring areas, the height of buildings, gradient of land, and trees;

It shall be in harmony with the surrounding environment or landscape, such as the state of water, water drainage, and drainage of rivers, lakes and marshes, wetlands, etc.

5. To properly establish a plan for installing infrastructure following the relevant development activities, or securing sites required therefor.

(2) The Special Metropolitan City Mayor, Metropolitan City Mayors, Special Self-Governing City Mayors, Special Self-Governing Province Governor, or head of a Si/Gun

(2) In order to make a change, if the development activity interferes with the implementation of an urban or Gun planning project, such change;

(1) The opinions of the operator of an urban/Gun planning project implemented in the relevant area shall be heard.

(3) Where permission may be granted pursuant to paragraph (1), the standards for such permission shall be the characteristics of a region, the development status of a region and flag.

The following classification shall be prescribed by Presidential Decree in consideration of the current status, etc. of reflect facilities:

3. Preservation use: An lecture on the standards for permission for development activities through deliberation by the urban planning committee under Article 59;

A belt among the conservation management areas, agricultural and forest areas, natural environment conservation areas, and green areas that may be applied in harmony;

Area prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport

Article 59 (Deliberation on Development Activities by Urban Planning Committee)

(1) The head of a related administrative agency shall fall under any of the acts referred to in Article 56 (1) 1 through 3.

shall be permitted or permitted under this Act to engage in any activity prescribed by Presidential Decree; or

When it is intended to grant authorization, permission, or suspicion pursuant to any other Act, it shall be prescribed by Presidential Decree.

It shall undergo deliberation by the Central Urban Planning Committee or the Local Urban Planning Committee.

- Enforcement Decree of the National Land Planning and Utilization Act

Article 51 (Those Subject to Permission for Development Activities)

(1) Acts subject to permission for development activities pursuant to Article 56 (1) of the Act shall be as follows:

1. Construction of buildings: Construction of buildings under Article 2 (1) 2 of the Building Act;

2. Installation of structures: Facilities artificially manufactured (Article 2 (1) 2 of the Building Act);

Installation of buildings other than buildings)

Article 56 (Standards for Permission for Development Activities)

(1) Criteria for permission for development activities under Article 58 (3) of the Act shall be as specified in attached Table 1-2.

(4) The Minister of Land, Infrastructure and Transport may determine detailed examination standards for the standards for permission for development activities under paragraph (1).

1. Matters to be examined by field;

A person shall be appointed.