[1] Whether an act of altering the use of a building in a park is permitted under the Urban Planning Act

[2] Whether an application to change the purpose of a building within a development-restricted zone under the Urban Planning Act from a house to a neighborhood living facility can be examined (affirmative)

[1] According to Article 2 (1) 1 (b) and 3, Article 4 (1) and (7), Article 19 of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17 (1) of the Regulations on the Standards, etc. for Permission for Change, etc. of Land Form and Quality, etc., the land or public waters determined as the place where urban planning facilities, such as parks, are installed shall not be permitted to construct or make a large-scale repair of buildings or other structures, which are not urban planning facilities. However, the term "construction" in this context includes not only extension, remodeling, reconstruction or large-scale repair of buildings or structures, but also alteration of use of buildings under Article 14 of the Building Act.

[2] Since the building is located within an urban park as provided by the Urban Park Act, the head of a local government may choose not to permit the alteration of the use of the building in a development-restricted zone under the Urban Planning Act if the application does not meet the requirements under the Urban Park Act after examining whether the application satisfies the requirements under the Urban Park Act. Thus, the alteration of the use of the building in an urban park does not fall under the object of permission to occupy and use a park under Article 8 of the Urban Park Act and Article 6 (1) of the Enforcement Decree of the same Act and Article 6 (1) of the same Act and Article 11-2 of the same Act

[1] Article 14 of the Building Act, Article 2 (1) 1 (b) and 3, Article 4 (1), Articles 19 and 21 of the Urban Planning Act, Article 5-2 and Article 20 (1) 1 of the Enforcement Decree of the Urban Planning Act, Article 7 (1) 6 (c) [Attachment 1] [Attachment 1] of the Enforcement Rule of the Urban Planning Act, Article 17 (1) of the Rule on Criteria for Permission for Change, etc. of Land Quality and Quality / [2] Article 8 of the Building Act, Article 8 of the Urban Park Act, Article 4 of the Urban Planning Act, Article 3 (2) of the Enforcement Decree of the Urban Planning Act, Article 6 (1) 2-2 of the Enforcement Decree of the Urban Park Act

[2] Supreme Court Decision 94Nu13497 delivered on July 28, 1995 (Gong1995Ha, 3001)

Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

The head of Bupyeong-gu Seoul Metropolitan Government

Seoul High Court Decision 96Gu36373 delivered on April 24, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

According to Article 2 (1) 1 (b) and 3, Article 4 (1) and (7), Article 19 of the Urban Planning Act, Article 5-2 of the Enforcement Decree of the same Act, Article 17 (1) of the Regulations on the Criteria for Permission for Change, etc. of Land Quality and Quality, etc., the land or public waters determined to be the place where urban planning facilities, such as parks, are installed shall not be permitted to construct or repair buildings or other structures, which are not urban planning facilities, except in exceptional cases where certain requirements are met. "Construction" includes not only extension, remodeling, reconstruction or large-scale repair of buildings or structures, but also the alteration of use of buildings under Article 14 of the Building Act. Meanwhile, Article 8 (1) and (3) of the Building Act provides that if the head of a Si/Gun/Gu intends to grant permission for construction or large-scale repair, etc. of buildings within an urban planning area, it shall be confirmed whether it conforms to the provisions of Article 4 of the Urban Planning Act and other related Acts and subordinate statutes.

Examining the reasoning of the judgment below in light of records and relevant Acts and subordinate statutes, the court below acknowledged the facts as stated in its judgment, and therefore, since the building of this case is located in an urban park as provided in the Urban Park Act, the defendant is not entitled to permit the alteration of use of the building in the urban park area under the premise that the application of this case to change the use of the building from a house to a neighborhood living facility (general restaurant) under the Urban Park Act does not meet the requirements provided in the Urban Park Act, and if the application of this case does not meet the requirements, the alteration of use of the building in the urban park is not subject to permission under Article 8 of the Urban Park Act, Article 6 (1) of the Enforcement Decree of the same Act, and Article 11-2 of the same Act. Therefore, the decision of the court below which rejected the application of this case on the ground of the above disposition is justifiable, and there is no error of law by misunderstanding the legal principles as to the property rights guarantee and restriction, Article 23 of the Urban Park Act, Article 8 of the Urban Park Act and Article

Therefore, the appeal is dismissed and all 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 Song Jin-hun (Presiding Justice)