(영문) 서울행정법원 2009.7.22.선고 2009구합1907 판결

A. On around 2008, the Plaintiff filed an application with the Defendant for a building permit with the content that construction of Class 2 neighborhood living facilities with the total floor area of 465m on the ground of ○○-dong, Seoul ○○○-dong ○○○○ 2,376m (hereinafter “instant land”).

B. Accordingly, on March 3, 200, the Defendant rejected the application for the above building permit on the ground that “the land in this case against the Plaintiff was 64% of the tree capital at the time of the cancellation of the accident forest site, and the land was restored to its original state through planting on the ground that there was an intentional damage of trees and an act of cultivation without permission in the state of forest, and that there was an act of cultivation without permission, and Article 11 of the Act on Special Measures for the Designation and Management of Development Restriction Zones and Article 22 of the Enforcement Decree of the same Act [Attachment 2] related to Article 11 of the Act on Special Measures for the Designation and Management of Development Restriction Zones and Article 22 of the Enforcement Decree of the same Act.” (hereinafter “the Disposition in this case”).

【Ground for Recognition: Facts without dispute, Gap evidence 1, and Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The defendant's disposition of this case is unlawful for the following reasons.

1) procedural defect

In relation to Article 24 of the Urban Planning Ordinance of the Seoul Metropolitan Government [Attachment 1], the land subject to permission to change the form and quality of the land is less than 51% of the standing timber capital, and Article 10 of the Enforcement Rule of the same Ordinance [Attachment 2] of the same Ordinance provides that in investigating the standing timber capital, the land subject to investigation shall be confirmed by visiting to the local site and marking the boundaries, and the standing timber in the survey area shall be transferred to the survey area. However, the defendant rejected the plaintiff's application for the construction permit by applying the number which was investigated in the past without such field investigation procedure

2) The existence of a permit or the absence of a permit

The instant land, the land category of which was large since the designation of a development restriction zone, can be constructed with neighborhood living facilities on the ground pursuant to Article 13 [Attachment Table 1] of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones, and even though the instant land is not forest land or arable farmland as prescribed in Article 22 of the Enforcement Decree of the same Act [Attachment Table 2], the Defendant rejected the Plaintiff’s application for permission on construction on the ground that the instant land falls under [Attachment Table 2].

3) A deviation from and abuse of discretionary power;

The provisions of Article 22 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones [Attachment 2] are not compulsory provisions, but discretionary provisions, but the defendant refused to apply for the plaintiff's building permission without any particular benefit bridge as if the defendant was a mandatory provision. The administrative agency may determine the nature of standing timber water as an accident land and impose sanctions if there is an act such as forest destruction loss in relation to the nature of standing timber water, but it is not reasonable to impose sanctions against the bona fide acquirer as an individual sanction for the minor administrative purpose

However, in light of the fact that the Plaintiff acquired the instant land without knowing such illegal damage, the instant disposition was unlawful as it deviates from and abused discretion.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) Comprehensively taking account of the provisions of Articles 1, 3, and 11 of the Act on Special Measures for Designation and Management of Development Restriction Zones, in order to prevent urban disorderly expansion and to preserve the natural environment surrounding cities, and to ensure the healthy living environment for urban citizens, construction of buildings, installation of structures, alteration of form and quality of land, etc. in violation of the former designation purpose is prohibited in principle. However, construction permission can be granted only in exceptional cases, such as where meeting certain requirements and it is recognized that there is no hindrance to the purpose of designation of development restriction zones. Such exceptional permission is beneficial to the other party, and thus, it constitutes an administrative agency’s discretionary act (see Supreme Court Decision 98Du17593, Feb. 9, 201, etc.).

Therefore, an administrative agency should determine whether there are certain grounds for permission or rejection stipulated in the Act on Special Measures for Designation and Management of Open Areas with respect to an application for permission for construction, etc. in a development restriction zone, and then determine whether to grant permission for construction, etc. by closely comparing and comparing the private interests of the party who applied for permission for construction, etc. and the public interests related to the purpose of designation of the development restriction zone with respect to the relevant construction, etc. in the absence of such grounds for rejection.

2) Determination as to the procedural defect argument

A) Article 56(1) of the National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 26, 2009) provides that a person who intends to engage in development activities as prescribed by the Presidential Decree shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun, and Article 58(3) of the same Act provides that detailed matters necessary for the standards for permission for the opening of land shall be prescribed by the Presidential Decree. Article 51(3) of the Enforcement Decree of the same Act provides that the alteration of the form and quality of land shall be subject to the permission for the development activities, and Article 56 of the Enforcement Decree of the same Act provides that the alteration of the form and quality of land shall conform to the provisions stipulated by the Urban Planning Ordinance

Therefore, Article 24 related to the Seoul Metropolitan Government Ordinance on Urban Planning [Attachment 1] 1. A. (3) (a) of the attached Table 1] (A) provides that the alteration of the form and quality of land requires land less than 51% (41% in green areas) of the full-time capital, and Article 10 of the Enforcement Rule of the same Ordinance (amended by Rule 366 of June 11, 2009) of the same Ordinance provides detailed criteria for the methods of surveying and calculating the full-time capital (attached Table 2).

B) The provisions of the above Municipal Ordinance stipulating the method of investigation and calculation of the standing timber capital, merely stipulate the procedures and calculation formula within the administrative agency with respect to the investigation of the standing timber capital, and merely stipulate the administrative agency’s internal guidelines for the handling of business affairs inside the administrative agency, and thus, omitted the above investigation procedure. There may be room to view that the administrative agency’s disposition of refusal against an application for a building permit or an application for changing the form and quality of land based on the above investigation itself is not illegal on the ground that it either

However, in light of the overall purport of the arguments in Gap evidence 1, Eul evidence 5, and Eul evidence 9, the defendant did not separately investigate the tree planting water in this case as of March 17, 2005 without a separate investigation of the plaintiff's building permit, and on the result of a survey of the present state of tree planting on the land in this case as of March 17, 2005, the above disposition of this case rejecting the plaintiff's building permit application on November 18, 2008 on the ground that the present state of tree planting water in this case, which is a green area, is 64% or more of the 41% or more of the 41% or more of the 41% or more of the 41% or more of the 5% or more of the 4th or more of the above 5th or more of the 4th or more of the above 5th or more of the 4th or more of the above 5th or more of the 4th or more of the above 19th or more of the above land.

In addition to the purport of the entire pleadings, it is difficult to readily conclude that the standing timber capital of this case was a certain amount every year on the grounds that the standing timber capital of this case was 76% around June 2003, notwithstanding the afforestation on around November 2004, the standing timber capital of this case appeared to be 64% around March 2005. Since March 2005, it can be seen that there was a considerable change in the current status of the land due to the unauthorized felling of the tree of this case on the land of this case.

C) Therefore, the Defendant’s incidental reasons are not recognized, since the Plaintiff’s assertion on this part is without merit, since it was concluded that the Plaintiff did not meet the requirements for permission to change the form and quality of the land without newly measuring the standing timber capital of this case at the time of the instant disposition.

3) Determination as to the existence of grounds for permission or the non-existence of grounds for refusal

A) Article 11(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 8975 of Mar. 21, 2008) provides that although a building cannot be constructed within a development restriction zone, in certain cases, it may be constructed with permission from the head of a Si/Gun/Gu, and Article 13(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21139 of Nov. 28, 2008) provides that Article 13(1) [Attachment 1] 4.(b) of the Enforcement Decree of the same Act provides that, at the time of designation of a development restriction zone, neighborhood facilities may be constructed on the land, the land category of which is large land category at the time of designation of the development restriction zone may be collectively determined by Presidential Decree. Article 11(7) of the same Act provides that the land category of which is the land category and land category of which shall be excluded from the category of land for construction or installation of forest land.

B) However, if the statement in Gap evidence No. 4 shows the purport of the whole pleading, it can be recognized that the land of this case is the large land since it was designated as a development restriction zone, so it can be recognized that the land of this case is the large land. Thus, the ground for permission under Article 13 (1) [Attachment 1] of the Enforcement Decree of the Act on Special Measures for the Designation and Management of Development Restriction Zones is acknowledged. However, as seen above, the current status of land, such as standing timber and tap water, etc., at the time of the disposition of this case was not conducted properly at the time of the disposition of this case, as well as the fact that there is considerable change in the current status of land due to the act of cutting off standing trees, etc. by someone else without permission, etc., Article 22 of the Enforcement Decree of the Act on Special Measures for the Designation and Management of Development Restriction Zones [Attachment 2] of the Enforcement Decree of the Act on Special Measures for the Designation and Management of Development Restriction Zones, and thus, it cannot be seen as a legitimate ground for refusal of construction.

Therefore, the plaintiff's assertion on this part is also justified.

4) Sub-decisions

As long as it is found that the Defendant erred in determining the existence of certain grounds for permission or rejection as prescribed by the above statutes in rendering the instant disposition, without considering the Plaintiff’s assertion about deviation and abuse of discretionary power, the instant disposition by the Defendant is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable.

Judges

Judges OOOO

Judges OOO

Site of separate sheet

Related Acts and subordinate statutes

◆ 건축법

Article 11 (Building Permits)

(1) A person who intends to construct or repair a building shall obtain permission from the Governor of a Special Self-Governing Province or from the head of a Si/Gun/Gu: Provided, That where he/she intends to build a building of 21 or more floors and of the use and size prescribed by Presidential Decree in the Special Metropolitan City or Metropolitan City, he/she shall obtain permission from the

◆ 개발제한구역의 지정 및 관리에 관한 특별조치법

Article 11 (Restriction on Acts in Development Restriction Zones) (amended by Act No. 8975 of March 21, 2008)

(1) No person shall construct a building, change the purpose of use, install a structure, change the form and quality of land, cut a stable, divide land, stockpile goods, or implement an urban planning project under subparagraph 11 of Article 2 of the National Land Planning and Utilization Act (hereinafter referred to as the "urban planning project") in a development-restricted zone: Provided, That a person who intends to perform an act falling under any of the following subparagraphs may perform such act with permission from the head of a Si/Gun/Gu:

1. Construction of buildings or installation of installations which fall under any of the following items and are prescribed by the Presidential Decree, and the resulting alteration of the form and quality of lands:

(7) Detailed standards for permission or report, such as the size and height location standards of buildings or structures subject to permission or report under the proviso of paragraph (1), landscaping in a site, building-to-land ratio, floor area ratio, partition of land, scope of changing the form and quality of land, shall be prescribed by the Presidential Decree.

Article 12 (Restriction on Acts in Development Restriction Zones)

(1) No person shall construct a building, change the purpose of use, install a structure, change the form and quality of land, conduct an act of piling up goods, or implement an urban planning project (hereinafter referred to as "urban planning project") pursuant to subparagraph 11 of Article 2 of the National Land Planning and Utilization Act within a development-restricted zone: Provided, That a person who intends to perform any of the following acts may perform such act with permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu (hereinafter referred to as the "head of a Si/Gun/Gu"):

1. Constructing buildings or installing structures, which fall under any of the following items and are prescribed by Presidential Decree, and changing the form and quality of land resulting therefrom:

(7) Detailed standards for permission or reporting, such as the scale and height location standards of a building or structure subject to permission or reporting under the proviso to paragraph (1), landscaping within a building site, building-to-land ratio, floor area ratio, partition of land, and the scope of changing the form and quality of land, shall be prescribed by Presidential Decree.

◆ 개발제한구역의 지정 및 관리에 관한 특별조치법 시행령 ( 2008 . 11 . 28 . 대통령령 제21139호로 개 정되기 전의 것 )

Article 13 (Types, etc. of Buildings or Structures Subject to Permission)

(1) The kind of buildings or structures and the scope of construction or installation under Article 11 (1) 1 of the Act shall be as shown in the attached Table 1.

[Attachment 1]

The kind of buildings or installations and the scope of construction or installation (related to Article 13 (1))

Article 22 (Criteria for Permission)

Detailed criteria for the permission of acts under Article 11 (7) of the Act shall be as the attached Table 2.

[Attachment 2]

Article 22 (Detailed Criteria for Permission for Acts Related to Article 22)

1. General standards:

(a) install such a minimum size as may be necessary to minimize damage to the development restriction zone;

(c) The environment caused by air pollution, soil pollution, noise, vibration, dust, etc. in the relevant area and its surrounding area;

The occurrence, etc. of damage caused by pollution or destruction of the ecosystem shall not be anticipated: Provided, That the prevention of environmental pollution and injury

any condition, such as prevention, landscaping, creation of a green area, and installation of a buffer area, shall not apply where such condition is attached.

(n) the Corporation.

section 31 of this title.

(d) In cases of changing the form and quality of land, or felling bamboo and trees, the elevation of elevation, gradient, clinical trees, and height of neighboring roads;

and water drainage, etc. shall be taken into account.

(e) Installation of urban planning facilities or construction of buildings and alteration to the form and quality of land under Article 10 (1) 5 of the Act;

, if no management plan has been formulated or any content of the formulated management plan has been violated;

subsection (1) of this section.

(f) Forest land or arable farmland may be located in a site for constructing buildings or installing structures;

shall not be required to be excluded.

(g) Where the area of a site to construct a building is less than 60 square meters, permission to construct a building shall be granted.

(2) shall not apply to the reconstruction or reconstruction of an existing building: Provided, That this shall not apply to the cases of remodeling or reconstruction of an existing building.

(1).

◆ 국토의 계획 및 이용에 관한 법률

Article 56 (Permission for Development Activities) (amended by Act No. 9442 of February 6, 2009)

(1) Any person who intends to engage in any of the following activities prescribed by Presidential Decree (hereinafter referred to as "development activities"), shall obtain permission for development activities from the Special Metropolitan City Mayor, Metropolitan City Mayors, or heads of Sis/Guns (hereinafter referred to as "development activities"): Provided, That the same shall not apply to cases where such activities are conducted in a City/Do planning project:

1. Construction of buildings, or installation of structures;

2. Alteration of the form and quality of land (excluding an alteration of the form and quality of land for farming);

3. Gathering soil and rocks;

4. Dividing land (excluding the sites on which the structures under Article 57 of the Building Act exist); and

5. Piling up goods for at least one month in a green area, control area or natural environment conservation area.

(2) The provisions of paragraph (1) shall apply mutatis mutandis to a change in matters for which permission for development activities is obtained: Provided, That this shall not apply to a change in insignificant matters prescribed by Presidential Decree.

(3) Notwithstanding the provisions of paragraph (1), the provisions of the Creation and Management of Forest Resources Act and the Private Radiation Business Act shall apply to the construction of forest roads and the erosion control projects in forests within an urban area and a planned control area, from among the development activities under paragraph (1) 2 and 3, and the provisions of the Mountainous Districts Management Act shall apply to the development activities under paragraph (1) 2 and 3 in forests within a preservation control area, a production control area, an agricultural and forest area, and a natural environment conservation area, and the provisions of the Mountainous Districts Management Act

(4) Any act falling under any of the following subparagraphs may be performed without obtaining permission for development activities, notwithstanding the provisions of paragraph (1): Provided, That in cases of an act falling under subparagraph 1, it shall be reported to the Special Metropolitan City Mayor, Metropolitan City Mayor, Si, or head of Si/Gun within one month:

1. Emergency measures for disaster restoration or disaster control;

2. Remodelling, extension or reconstruction of buildings that may be reported and installed under the Building Act, and alteration in the form and quality of land within the scope necessary therefor (limited to the site for urban planning facilities where no urban planning facility project is implemented);

3. Other minor acts as prescribed by the Presidential Decree.

Article 58 (Standards for Permission for Development Activities)

(1) The Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun shall grant permission for development activities only if the details of an application for permission for development activities meet the following standards:

1. To meet the scale of development activities prescribed by Presidential Decree in consideration of special-purpose areas;

2. Not to violate the contents of urban management planning;

3. Not to hamper an implementation of urban planning project;

4. To achieve harmony with the actual utilization condition or land use plan in neighboring areas, the height of buildings, gradient of land, status of trees, water distribution, and drainage of rivers, lakes, marshes, and wetlands, etc.;

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

(2) Where the Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun intends to grant permission for development activities, he/she shall hear the opinions of the implementer of an urban planning project implemented in the relevant area as to whether such development activities interfere with

(3) Detailed matters necessary for standards, etc. for permission for development activities shall be prescribed by Presidential Decree.

◆ 국토의 계획 및 이용에 관한 법률 시행령

Article 51 (Those Subject to Permission for Development Activities)

Acts subject to permission for development activities under 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: Installation of the facilities artificially manufactured (excluding the buildings under Article 2 (1) 2 of the Building Act);

3. Changing the form and quality of land: Changing the form and quality of land by cutting, embanking, filling, suspending, packing, etc. and reclaiming public waters (excluding changing the form and quality of land for farming);

4. Gathering earth and rocks: Gathering earth and rocks, such as soil, sand, gravel, rocks, etc.: Provided, That acts of gathering earth and rocks for the purpose of changing the form and quality of land shall be excluded;

5. Division of land: Division of land, which falls under any of the following items (excluding the sites on which the structures under Article 57 of the Building Act are located):

(a) Division of land conducted without obtaining permission, authorization, etc. under relevant Acts and subordinate statutes in green areas, control areas, agricultural and forest areas, and natural environment conservation areas;

(b) Dividing land below the area subject to restrictions on partition under Article 57 (1) of the Building Act;

(c) Dividing land into a width of not more than five meters without obtaining permission, authorization, etc. under the related Acts and subordinate statutes;

6. Piling up goods: Piling up goods for not less than one month in a green area, control area or natural environment conservation area, on land which is not located within the fences of buildings (limited to sites created through lawful procedures).

Article 56 (Standards for Permission for Development Activities)

(1) The standards for a permission on development acts under Article 58 (3) of the Act shall be as the attached Table 1.

[Attachment 1]

Criteria for permission for development activities (related to Article 56)

1. Matters to be examined by field;

◆ 서울특별시 도시계획 조례

Article 1 (Purpose) The purpose of this Ordinance is to prescribe matters to be prescribed by the National Land Planning and Utilization Act, the Enforcement Decree of the same Act, the Enforcement Rules of the same Act, and other relevant Acts and subordinate statutes, and matters necessary for the enforcement thereof.

Article 24 (Standards, etc. for Permission for Development Activities) Criteria, etc. for permission for development activities under attached Table 1 of the Decree shall be as specified in attached Table 1.

[Attachment 1] Criteria for Permission for Development Activities (Related to Article 24)

1. Matters to be examined by field;

A person shall be appointed.

◆ 서울특별시 도시계획 조례 시행규칙 ( 2009 . 6 . 11 . 규칙 제3666호로 개정되기 전의 것 )

Article 10 (Methods of Examining Standing Timber Water) The survey and calculation of the standing timber capital prescribed in subparagraph 1 (a) (3) (a) of attached Table 1 of the Ordinance shall be made in accordance with the method prescribed in attached Table 2 of the Ordinance.

[Attachment 2]

Article 10 (Relation to Article 10)

1. Definition of standing timber capital;

It is expressed at the appropriate ratio of the main trees or the incumbent trees of the present state (100%) of the forest land. 2. The method of surveying the main trees of the standing trees is the survey.

(a) identify the division of the land to be inspected on the spot and indicate the boundaries;

(1) Form of research camping place

(2) Organization

A person shall be appointed.

In principle, one person shall be comprised of one or two persons for the plane captain.

(3) Descriptions

(1) The chest height of breast shall be stated in accordance with the standards set forth in the table of standards for tree origin.

(2) The sum of the measurement samples shall be calculated after being indicated as the person concerned, regardless of the species of water.

(4) Measurement of the stoves height of chests;

(1) The measurement of the chest height diameter shall be 1.2 meters above ground in a voluntary direction on the upper side of the slope area (the chest height).

measurement. The measurement shall be conducted on all trees with a height of at least 1.2m, without classifying the trees of the class and the pipes.

of this section.

(2) A survey shall be conducted in advance on the part of a measuring entity's body at a location of 1.2 meters above ground.

(3) If a simple part is found at the lower part of the chest height point, it shall be deemed two parts respectively and a separate measurement shall be made and the chest height point shall be made.

A subdivision shall be deemed to be a single copy if it has been divided into upper parts.

(4) In cases where there are suspicions or potteries, etc. on the chest height points, the average value shall be death after measuring the diameter of the load height of the upper half of this point.

section 22.

(5) Where there is any possibility of confusion as to trees subject to measurement because of many trees, the number of trees measured so as not to cause any error.

It shall be displayed by subdividing, string, etc. of trees.

(5) Method of computation

(1) When a measurement is completed, the diameter shall be determined by multiplying the principal value of each diameter by the average diameter, and the diameter shall be determined by summing up the diameters.

shall seek a total of the amounts.

(2) The diameter shall be divided into the entire number of principal parts of the area where the diameter is covered, and the average chest height shall be sought.

(3) The normal number of standing timber per ha, which is based on the average chest height of the trees subject to the standards table for standing timber.

shall be converted into the number of standing timber.

(4) The number of normal permanent timber in the subject area (this paragraph) = the area of the subject area (land size) x normal permanent timber number (this/land size).

(5) The Do (%) of standing timber = The Do (%) of the nature of standing timber as of the top of a target area x 100.

3. The standard table of standing timber origin;

A person shall be appointed.

참조조문

-개발제한구역의 지정 및 관리에 관한 특별조치법

-개발제한구역의 지정 및 관리에 관한 특별조치법 제1조

-개발제한구역의 지정 및 관리에 관한 특별조치법 제3조

-개발제한구역의 지정 및 관리에 관한 특별조치법 제11조

-개발제한구역의 지정 및 관리에 관한 특별조치법 제11조 제1항

-개발제한구역의 지정 및 관리에 관한 특별조치법 시행령

-개발제한구역의 지정 및 관리에 관한 특별조치법 시행령 제22조

-건축법