Plaintiff 1 and 3 others (Law Firm Gyeong, Attorney Go-su et al., Counsel for the plaintiff-appellant)

The head of Dong-si Branch Office (Law Firm TELS, Attorney Lee Dong-hwan, Counsel for the defendant-appellant)

February 17, 2017

Suwon District Court Decision 2014Guhap61225 Decided December 9, 2015

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

The defendant's disposition of denial of development activities against the plaintiffs on May 19, 2014 is revoked.

Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Quotation of the first instance judgment

The reasoning of this Court’s reasoning concerning this case is as follows. ① Correction of the Explosives Safety Act by each of the 13th parallels and 6th parallels in the judgment of the court of first instance as “Safety Distance”; ② The grounds for this part of the former Military Bases Act or the head of the combat flight group’s consent is unlawful. Except for the modification of the part of the judgment as follows, the ground for this Court’s consent is as stated in the reasoning of the judgment of the court of first instance. As such, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act.

2. Details of change in the judgment of the court of first instance;

A) According to Articles 2 Subparag. 6(b) and 8, 5(1)2(c), and 6(1) of the former Military Bases Act, restricted protection zones may be designated within 1 km from the outermost boundary line of explosives-related facilities, etc. The flight safety zone may be designated in an area within a certain range of air operations bases for the purpose of safety flight in takeoff and landing of military aircraft. In addition, according to Articles 9 and 10 of the same Act, a certain act that may affect military operations, etc. is prohibited in military bases and military installations protection zones, including restricted protection zones, and a certain act that may affect the safety of flight is imposed in cases of a person who violates the above prohibition. Article 24 of the same Act provides that the head of the relevant administrative agency shall consult with the commander of the jurisdictional unit, etc. in cases where permission, etc. is required for protection zones and flight safety zones.

Meanwhile, Article 13(2)1 of the former Military Bases Act requires the above consultation, and Article 10(1)4 of the same Act provides that the head of the competent administrative agency intends to grant permission, etc. for the construction of a building and the installation of a structure or light in flight safety zones, which is likely to interfere with or be mistaken for aviation lights (the installation of similar lights that are likely to interfere with or be mistaken for aviation lights).

According to the above provisions, the commander of the jurisdictional unit, etc. in receipt of the above request for consultation shall examine whether the protection zone or flight safety zone is designated, the purpose of the act prohibited, the act of the applicant seeking permission violates the purpose of the designation of the protection zone or flight safety zone, and determine whether to give consent

B) We examine whether the part of the grounds for the disapproval of the commander of the combat flight, who is the commander of the jurisdictional unit of the instant case, "it affects the flight safety" is appropriate.

As seen earlier, the instant land is located within the flight safety zone (No. 2). Moreover, the Plaintiffs’ application for the instant permission for development activities is subject to the permission for civil engineering works, such as construction of automobile-related facilities (tourism bus depotss), alteration of the form and quality of land, construction of fume, and installation of retaining walls, etc. on the instant land (including A1-6 numbers). If the Plaintiffs create a tourist bus garage on the instant land, it is clear that the instant land would act as similar lights at night. Even if the construction of the garage itself does not correspond to the “establishment” of similar lights under the statutes, it would not be possible to install certain lights around the said garage at night for the safety of the parking lot and its surrounding area. Accordingly, it is determined that the Defendant’s request for consultation with the head of the instant combat aircraft commander, who is the competent commanding officer, was required to take appropriate measures under Article 13(2), (1), and Article 10(1)4 of the former Military Bases Act.

However, according to Gap 11, 12, 30, 31, 38, and 9, 71 national highways are now formed immediately adjacent to the project site of this case, and a factory and a residential area which is much larger than the site of this case is already established in the area between the site of this case and the aircraft guidance, etc. for takeoff and landing of aircraft, and it is recognized that the "stop-to-land parking lot" is being installed and operated between the above factory, residential area, and the site of this case. In addition, as in the vicinity of the building site of this case, various parking lots are formed and installed in a wide area with the factory area as in the vicinity of the flight guidance, etc., and 1-24 lines are also being constructed in the city planning in Do, Do, Do, Do, and Do. Even if considering all the above conditions of the surrounding site of this case and the testimony of the witness of the non-party, it is difficult to deem that the plaintiffs are more likely to obstruct or increase the existing aviation level due to the development of the site of this case.

Ultimately, among the reasons for the consent of the commander of the jurisdictional unit of this case, the part " that affects flight safety" among the reasons for the consent of the commander of the jurisdictional unit of this case is not recognized, so the defendant cannot make a reply to the non- consent of the plaintiffs' permission for development

3. Conclusion

Therefore, all of the plaintiffs' claims are justified. As a result, the judgment of the first instance, which received the plaintiffs' claims, is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-seok (Presiding Judge)