[1] Whether the grounds for exclusion not stipulated in Article 55(3) and (5) of the former Enforcement Decree of the National Land Planning and Utilization Act can be acknowledged at will (negative)

[2] The case holding that where a change in the form and quality was made in excess of 10,00 square meters in the land adjacent to the natural green area to which the above land belongs and a change in the form and quality was not permitted due to the lack of a ground for exclusion under Article 55 (3) and (5) of the former Enforcement Decree of the National Land Planning and Utilization Act, where a change in the form and quality was again applied for a change in the form

[1] Article 5 (1) 1 (a) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680 of Jan. 15, 2005) strictly limits the form and quality alteration area of the land where development activities are permitted. The restriction on development activities is required to limit the area where the form and quality is changed within a certain scope in order to preserve the natural environment, farmland, and forests indiscreet development, to prevent reckless development, and to efficiently utilize, develop, and preserve national land. Article 5 (4) of the same Act, which is a provision that restricts adjacent development, is more concrete than the above purport, and Article 5 (3) and (5) of the same Act, including the fact that the main purpose of the restriction on adjacent development, provides for the unreasonable result due to the application of the restriction on area and the restriction on adjacent development regulations, so long as the grounds for exclusion are clearly stated in order to avoid the application of the restriction on area, the grounds for exclusion cannot be acknowledged without permission.

[2] In a case where a permit to change the form and quality of part of the land already changed upon the permission to change the form and quality was applied again for the permission to change the form and quality of the land, the case holding that the permission to change the form and quality of the land cannot be obtained on the ground that there was no ground for exclusion under Article 55(3) and (5) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680, Jan. 15, 2005) on the land adjacent to the natural green area within which

[1] Article 55 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680 of Jan. 15, 2005) / [2] Article 55 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680 of Jan. 15, 2005)

[1] Supreme Court Decision 2006Du13954 decided Nov. 23, 2006 (Gong2007Sang, 65)

Plaintiff (Law Firm Roice, Attorneys Yang Sung-soo et al., Counsel for the plaintiff-appellant)

The head of Seo-gu Incheon Metropolitan City

Seoul High Court Decision 2005Nu24249 decided May 3, 2006

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

The grounds of appeal are examined together (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 55(1)1(a) of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680, Jan. 15, 2005; hereinafter “Enforcement Decree of the Act”) prohibits a change in the form and quality of at least 10,00 square meters in a residential area, commercial area, natural green belt, or production green belt. Article 55(4) of the same Act (hereinafter “area Restriction Regulations”) provides that where a person develops a parcel of land adjacent to a green area, management area, agricultural area, or natural environment conservation area and a part of a lot of land over several occasions, the area shall be deemed as one development act and the area shall be calculated. The strictly restricting the area of land, the area Restriction Regulations strictly limit the area of which is permitted to preserve the natural environment, farmland, and forest by restricting development activities, and to effectively utilize, develop, and preserve national land, the area restriction regulations within a certain scope where changes in the form and quality are made, and the adjacent regulations are not applicable to the extent of 150.

2. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. The lower court determined that the Defendant’s new permission to change the form and quality of the instant land did not go against the legislative intent of the adjacent development restriction provision, on the ground that the Plaintiff did not obtain any new permission to change the form and quality of the instant land pursuant to the said provision on the ground that it did not obtain any change in the form and quality of the instant land from the Plaintiff and operated a driving school, and that the Plaintiff constructed a driving range on the instant land by changing the type and quality of the instant land that did not have been operated, and that the Plaintiff applied for a building permit to operate the instant land to operate the driving range. Accordingly, the Plaintiff is merely merely intended to construct a driving range by using part of the instant land for which the change in the form and quality was completed, and even if it is necessary to change the form and quality of the instant land, such as filling-up and cutting, etc. among certain parts of the instant land for which the change in the form and quality was already permitted.

3. However, according to the reasoning of the lower judgment and the record, following the Plaintiff’s application for the instant permission to change the form and quality of the instant land, which requires approximately 0.6m or 2.5m-meter with respect to the instant land among the instant land in order to build a golf practice range, the Plaintiff appears to require permission to change the form and quality of the said land under the National Land Planning and Utilization Act as to the said land; on the other hand, with respect to the land adjacent to a natural green area to which the said land belongs, the change of the form and quality of the land exceeding 10,00m-meter due to the development acts following the construction of the buildings, etc.; and there were no grounds for excluding the application of the provisions on restriction on the size and the adjacent restriction provisions under Article 5(3

Therefore, in accordance with the above legal principles and related Acts and subordinate statutes, it is reasonable to deem that the plaintiff as the plaintiff cannot obtain permission to change the form and quality of the above land, so although the defendant's ground for disposition on the same purport is legitimate, the court below judged that the defendant's ground for disposition on this part is unlawful. In this case, the court below erred in the misapprehension of legal principles as to whether permission to change the form and quality of land is required and the application of the adjacent restrictions on development, and it is clear that such

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 Kim Nung-hwan (Presiding Justice)