In a case where the head of an administrative agency who deals with affairs concerning permission for development activities has rejected an application for permission for development activities, whether the mere fact that the application did not undergo deliberation by the urban planning committee may immediately be deemed to have procedural defects in the grounds for revocation of permission (negative), and the case where non-permission

Articles 56(1)2 and 59(1) and (2) of the former National Land Planning and Utilization Act (Amended by Act No. 10977, Jul. 28, 2011); Article 57(1) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 23502, Jan. 6, 2012);

Seoul High Court Decision 2001Na14488 delivered on August 1, 201

Gangnam Market (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu725 decided November 28, 2012

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

The grounds of appeal are examined.

1. The National Land Planning and Utilization Act was enacted February 4, 2002 in order to prevent difficult development and to build an environment-friendly land utilization system through planned and systematic utilization of the national land by integrating the existing urban planning law and the Act on the Utilization of the National Land, which have been subject to the application of urban planning with the Act on the Utilization of the National Land, which had been subject to the application of the urban area, into the current urban area. To achieve such legislative purpose, the former National Land Planning and Utilization Act (amended by Act No. 1097, Jul. 28, 201; hereinafter “National Land Planning Act”) stipulates that the designation and alteration of zones related to urban planning, the establishment, alteration, and adjustment of the basic urban planning and urban management planning, which are conducted by the head of an administrative agency, shall undergo deliberation by the urban planning committee on a specific development act prescribed by Presidential Decree, or on a scale of development activities to obtain authorization, permission, approval, or consultation pursuant to other Acts, notwithstanding Article 59(1) of the Enforcement Decree, it does not seem to undergo deliberation by the urban traffic impact assessment committee.

In light of the legislative purpose and content of the National Land Planning Act, and permission to change the form and quality of land pursuant to Article 56(1)2 of the National Land Planning Act belongs to discretionary act (see Supreme Court Decision 2004Du6181, Jul. 14, 2005). Thus, in light of the fact that the head of an administrative agency cannot be deemed to have necessarily determined whether permission to engage in development activities according to the result of deliberation by the urban planning committee, the head of the administrative agency must make a prior deliberation on permission to engage in certain development activities under Article 59(1) of the National Land Planning and Utilization Act, the main purpose of which is to prevent reckless development by having the head of the administrative

In full view of the above circumstances, where the head of an administrative agency in charge of affairs concerning permission for development activities grants permission for a certain development act, he/she shall undergo deliberation by the urban planning committee pursuant to Article 59(1) of the National Land Planning Act, but where an application for permission for development activities was rejected by deeming that the contents of the application for permission do not meet the criteria for permission, it is difficult to deem that there was a procedural defect to the extent of the grounds for revocation immediately on the ground that the application did not go through deliberation by the urban planning committee. However, if the head of an administrative agency did not take into account the circumstances that should be considered in the course of the disposition of non-permission for development activities

2. According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and, as long as it is objectively unclear that permission for development activities was impossible, the Defendant should have referred to the deliberation by the Urban Planning Committee as long as such special circumstances exist, and determined that the instant non-permission disposition was a procedural defect corresponding to the grounds for revocation.

However, in light of the above legal principles, even if the defendant did not undergo deliberation by the urban planning committee while rendering the instant non-permission disposition, such circumstance alone does not necessarily mean that there is an error of law that should immediately revoke the instant non-permission disposition, and where specific circumstances that can be seen as non-exercise or neglect of discretionary power, such as omitting matters to be considered in the process of denying the development activities in this case without undergoing deliberation by the urban planning committee, exist, and there is an error of

Nevertheless, the lower court concluded that the instant non-permission disposition was unlawful solely on the ground of the omission of deliberation by the urban planning committee. In so determining, the lower court erred by misapprehending the legal doctrine on the legal nature and effect of the deliberation procedure of the urban planning committee as prescribed by the National Land Planning and Utilization Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Lee In-bok (Presiding Justice)