[1] Whether the head of the Gu in Seoul Special Metropolitan City may restrict permission for development activities pursuant to Article 63 (1) 3 of the former National Land Planning and Utilization Act in the area where housing redevelopment projects, housing reconstruction projects, housing reconstruction projects implemented in the rearrangement zone under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, plans for housing reconstruction projects, and urban renewal promotion plans for housing reconstruction projects are established in the renewal promotion zone under the Special Act on the Promotion of

[2] In a case where the head of the Gu in Seoul Special Metropolitan City rejected a construction report according to the result of deliberation by the former Urban Planning Committee that the construction report may affect the calculation of old age, which is a requirement for development if a new building is newly constructed because the building was planned to develop a new metropolitan area with respect to the building report filed by a landowner Gap, the case holding that the above disposition was erroneous

[1] Housing redevelopment projects, plans for housing reconstruction projects, and urban renewal promotion plans for housing reconstruction projects implemented in a rearrangement zone under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009), implemented in an urban renewal promotion zone under the former Special Act on the Promotion of Urban Renewal (amended by Act No. 9876 of Dec. 29, 2009), falls under an urban management plan to which Article 63 (1) 3 of the former National Land Planning and Utilization Act (amended by Act No. 8852 of Feb. 29, 2008) applies, and the head of the Seoul Metropolitan Government may restrict permission for development activities in accordance with the above provisions of the former National Land Planning and Utilization Act in an area where the said plan is established.

[2] In a case where the head of the Gu in Seoul Special Metropolitan City rendered a disposition rejecting a building report according to the result of deliberation by the former Urban Planning Committee that it may affect the calculation of old age, which is the development requirement if a new building is newly constructed on the building report of a landowner Gap, the case holding that the court below erred by misapprehending the legal principles of Article 63 (1) 3 of the National Land Planning and Utilization Act on the ground that the head of the Gu’s disposition based on the public notice also did not comply with the premise that the above disposition was lawful if the area where Gap’s land is located is an urban management plan under Article 63 (1) 3 of the former National Land Planning and Utilization Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “National Land Planning Act”) and the urban management plan is determined on the land owner Gap’s building report is expected to change the specific use district, specific use district, or specific use district, and the criteria for permission for development activities are expected to change significantly.

[1] Article 2 subparag. 2 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009); Article 2 subparag. 2, subparag. 3, and 4 of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 9876 of Dec. 29, 2009); Article 2 subparag. 11, Article 63(1)3, and Article 139(2) of the former National Land Planning and Utilization Act (amended by Act No. 8852 of Feb. 29, 2008); Article 2 subparag. 2 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009); Article 2 subparag. 2 of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 9876 of Dec. 29, 2009); Article 38 subparag. 28 subparag. 16 and 28 subparag.

Plaintiff

The head of Guro-gu Seoul Metropolitan Government

Seoul High Court Decision 2009Nu241 decided February 3, 2010

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

The grounds of appeal are examined.

1. A. Article 63(1)3 of the former National Land Planning and Utilization Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “National Land Planning Act”) provides that, “The Minister of Construction and Transportation, Special Metropolitan City Mayor, Metropolitan City Mayor, Do governor, etc., as an area where a basic urban planning or urban management plan is formulated, and where the relevant basic urban planning or urban management plan is determined, the alteration of the relevant basic urban planning or urban management plan is anticipated and the criteria for permission for development activities are expected to vary substantially accordingly,” permission for development activities may be restricted for a period not exceeding three years. Furthermore, Article 139(2) of the National Land Planning and Utilization Act; Article 68(1) [Attachment Table 3] of the former Ordinance on Urban Planning (amended by Ordinance No. 4666, Jul. 30, 2008) of the Seoul Special Metropolitan City Ordinance on the Restriction of Permission for Development Activities belonging to the authority of the head of the Gu.

B. Basic urban planning prescribed by the National Land Planning and Utilization Act refers to a master plan indicating the basic spatial structure and long-term development direction for the jurisdiction of a Special Metropolitan City, Metropolitan City, Si, or Gun (Article 2 subparag. 3 of the National Land Planning and Utilization Act); an urban management plan refers to an urban development project or a rearrangement project plan, etc. formulated for the development, maintenance, and preservation of a Special Metropolitan City, Metropolitan City, Si, or Gun (Article 2 subparag. 4 of the National Land Planning and Utilization Act); an urban planning project refers to a project for the implementation of an urban management plan and a rearrangement project, etc. under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Article 2 subparag. 11 of the National Land Planning and Utilization Act before amended by Act No. 9444, Feb. 6, 2009; Article 2 subparag. 2 of the Urban Renewal Promotion Act); and an urban renewal acceleration acceleration project prescribed by the former Act on the Promotion of Urban Renewal (Article 2 of the Urban Renewal Improvement Projects Act).

C. Therefore, housing redevelopment projects implemented in a rearrangement zone under the Urban Improvement Act, plans for housing reconstruction projects, housing redevelopment projects implemented in an urban renewal promotion zone under the Urban Renewal Promotion Act, and urban renewal acceleration plans for housing reconstruction projects fall under an urban management plan to which Article 63(1)3 of the National Land Planning and Utilization Act applies, and the head of the Seoul Special Metropolitan City may restrict permission for development activities in an area where the said plan is formulated pursuant to the said Act.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. In around 2004, Seoul Special Metropolitan City established the “Master City and Residential Environment Rearrangement Basic Plan-Housing Redevelopment Basic Plan” and established the “Master City and Residential Environment Rearrangement Basic Plan-Urban Environment Improvement Basic Plan” around 2005, and established the “Basic Urban Planning 2020” around 2006.

B. As the Urban Renewal Promotion Act enters into force from July 1, 2006, the Defendant classified 2, Dong, Dong, and Ri-2 into one district (hereinafter “instant zone 1”) under its jurisdiction on November 7, 2006, the Defendant: (a) divided the instant zone into 3 districts; (b) set up a renewal acceleration plan into 9 districts except the area where the instant zone 1 is located; (c) formulated an urban renewal acceleration plan after being designated as an urban renewal promotion zone under the Urban Renewal Promotion Act from the Mayor of Seoul Special Metropolitan City; and (d) established and implemented an improvement plan after being designated as an improvement zone within the extent suitable for the “basic plan for urban and residential environment improvement” in the Seoul Special Metropolitan City under the Urban Renewal Promotion Act; and (d) finalized the status quo of the comprehensive implementation plan and the status of the basic implementation plan for the development of old and inferior houses.

C. After the Seoul Special Metropolitan City Ordinance on the Promotion of Urban Renewal came into effect on November 20, 2006, the Defendant ordered a basic survey on the status of 9 districts, including the instant Zone No. 1, and started a basic survey on the status of 22 December 2006 (hereinafter “instant basic survey on status”).

D. In the process of the investigation into the present basic status on February 26, 2007, the Defendant met the requirements for the designation of the renewal acceleration zone under Article 7 of the Seoul Special Metropolitan City Ordinance on the Improvement of Urban Areas and Residential Environments, easing the requirements for designation of the housing redevelopment zone under Article 4 of the Seoul Special Metropolitan City Ordinance on the Improvement of Urban Areas and Residential Environments, which was enforced at the time when the current status of the first district was narrow road as a small-scale housing complex, including public housing and small-scale housing, including parks, green areas, etc., as well as roads, schools, public buildings, parks, green areas (parks, green areas and green areas) and roads, etc. in addition to the residential areas of apartment complex or multi-family housing, etc., the Defendant, in consideration of the characteristics and efficiency of land use of the first district and the current status of the current land utilization plan and the current land utilization plan and the development of the urban renewal zone as well as the development of the urban renewal zone.

E. However, on April 6, 2007, the Defendant was notified that the Seoul Special Metropolitan City Urban Renewal Committee, which deliberated on whether to designate and relax the urban renewal acceleration district from Seoul Special Metropolitan City on April 6, 2007, set a new deliberation standard that it must meet at least 60% of the old-age map (the ratio to the total number of buildings within the area subject to the number of old-age and inferior buildings),

F. Accordingly, on May 29, 2007, the Defendant: (a) decided on May 29, 2007, on the following grounds: (b) on May 29, 2007, when the old-age level was 33% at the time of the instant Zone 1 and the old-age level was anticipated to meet at least 60%; and (c) in the instant Zone 1, the ratio of old-age and inferior buildings may not be continuously lowered if the building permission is not restricted in the instant Zone 1; and (d) there is a need to restrict the construction permission since the designation of the instant Zone 1 as an urban renewal promotion zone under the Urban Renewal Promotion Act is difficult; (b) made an implementation plan for restricting the development permission and publicly announced the resident inspection on the restriction (draft) of the development permission on May 31, 2007; and (c) made a public announcement on July 5, 2007 after deliberation by the Guro-gu Urban Planning Committee on the construction report (hereinafter “instant Building Act”).

G. On February 5, 2008, the Defendant met the requirements for designation of the renewal promotion zone under the Seoul Special Metropolitan City Ordinance on the Promotion of Urban Renewal. However, it falls short of the old age limit (60% or more) standard, which is the standard for deliberation of the Seoul Special Metropolitan City Urban Renewal Committee, and ② satisfies the requirements for designation of the housing redevelopment zone under the Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments (Seoul Special Metropolitan City Ordinance on the Improvement of Urban and Residential Environments), and ③ for the said reasons, it was reasonable to promote the development project in parallel with the urban renewal promotion project for the nine districts in Guro-gu and the four districts in the Seoul Special Metropolitan City.

H. On March 19, 2008, the Defendant received a building report under Article 9 of the Building Act (hereinafter “instant building report”) from the Plaintiff on the Plaintiff’s application for deliberation by the Guro-gu Urban Planning Committee on new construction of the instant land located in Zone 7 of Zone 1, and rejected the report on May 7, 2008 on the ground that the results of deliberation by the Guro-gu Urban Planning Committee, which was held on May 7, 2008, may affect the calculation of old age, which is a requirement for development, as a building construction of the instant land. As such, on May 15, 2008, the Defendant notified the Plaintiff of the results of deliberation by the Guro Urban Planning Committee on May 7, 2008 (it appears to be a disposition to return the instant building report; hereinafter “instant disposition”).

I. Meanwhile, on April 4, 2008, according to the results of the above basic survey, the Defendant promoted the improvement project and the improvement project for the Guro-gu 3 districts including the instant Zone No. 1 in parallel with the urban renewal acceleration project. In the event that the instant Zone No. 1 is designated as a rearrangement zone or an urban renewal acceleration district, the Defendant formulated a rearrangement plan and an urban renewal acceleration plan, which consist of the maintenance of transportation facilities (road extension and new roads), space facilities (construction of public vacant land, green area, etc.), distribution supply facilities (electric supply facilities), public cultural and sports facilities (schools, public buildings, social welfare facilities, and juvenile training facilities), etc., other than residential facilities, to be implemented.

(j) On October 10, 2008, the Defendant requested the Seoul Special Metropolitan City to reflect the “Master Metropolitan City Development Master Plan” in the Seoul Special Metropolitan City’s “Master City and Residential Environment Improvement (Redevelopment and Reconstruction) Master Plan,” but the completion date of the services related to the “Master City and Residential Environment Improvement Plan” in Seoul Special Metropolitan City was postponed on February 28, 2010, which is the closing date of the argument of the lower court, and it was not confirmed whether it reflected the “Master City and Residential Environment Improvement Master Plan” in the “2010 Urban and Residential Environment Improvement Plan” as of January 20, 2010.

3. According to the above facts, the Defendant: (a) designated the instant Zone 1 as a rearrangement zone or an urban renewal acceleration zone; (b) conducted a survey of the basic status of the instant Zone 1 in order to promote a rearrangement project or an urban renewal acceleration project; and (c) formulated a plan for land use where the instant Zone 1 is designated as a rearrangement zone or an urban renewal acceleration zone; (d) in particular, the requirements for designation of an urban renewal acceleration zone under the Seoul Special Metropolitan City Ordinance on the Promotion of Urban Renewal are satisfied; and (e) there is a need to restrict the construction permission of the instant Zone 1 in order to meet the requirements for the designation and mitigation of the urban renewal acceleration zone; and (e) there is no need to limit the construction permission of the instant Zone 1 in order to meet the requirements for deliberation on whether the designation and mitigation of the urban renewal acceleration zone are designated as a rearrangement zone or urban renewal acceleration zone; and (e) it is reasonable to deem that the Defendant has formulated an urban management plan under Article 63(1)3 of the National Land Planning Act and the criteria for permission for development activities are expected to change.

Nevertheless, on the premise that the notice of this case did not meet the requirements of Article 63(1)3 of the National Land Planning and Utilization Act, the court below held that the disposition of this case based on the notice of this case was unlawful on the ground that it did not meet the above legal requirements and that there was no need for a significant public interest to return the building report of this case. In so doing, the court below erred by misapprehending the legal principles as to the requirements of the above legal provisions, which led to failure

4. Therefore, 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 Yang Chang-soo (Presiding Justice)