(영문) 창원지방법원 2017.4.25.선고 2016구합979 판결

On April 26, 2016, the part regarding civil petition No. 18255 among the disposition of non-permission for complex civil petition filed by the Defendant to the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. On March 11, 2016, the Plaintiff filed an application for complex construction with the Defendant for the construction of 8 units of detached houses (referring to 2 units of single houses and 6 units of multi-family houses) on the 47-7 square meters and 486-3 square meters and 1,048 square meters of a Ri, Dong-gu, Changwon-si, Dong-si, Changwon-si, Seoul, for a single house (hereinafter “instant application”).

A person shall be appointed.

B. The instant application consists of civil petition No. 18235 to construct a detached house on the ground among 429m2 (the above part) of 422m2 (the above part) from among 47-7 forest land in Changwon-si, Changwon-si, Changwon-si, Masan-si, Masan-si, Masan 47-7, and civil petition No. 18270 to construct a detached house on the ground (the above part) among 422m2m (the above part) from among 47-7 forest land in this Risan 47-7, and civil petition No. 254m (the above part 3; hereinafter referred to as "the instant forest") from among 25m3 forest land in this Risan 47-7 and 486-3,048m (hereinafter referred to as "the instant orchard"), and "the instant forest" and "the instant orchard" are composed of civil petition No. 18525m255.

C. On April 26, 2016, the Defendant was not in filing a complex civil petition with the Plaintiff on the grounds of non-permission as follows.

○ The reason for non-permission of complex civil petitions. The reason for non-permission of development activities is that the area of a nature green belt that is not in conformity with the relevant provisions, such as Articles 56 and 58 of the National Land Planning and Utilization Act and the Enforcement Decree of the same Act [Attachment Table 1-2] of the same Act shall be limited only when it is inevitable to secure green space, prevent city from spreading urban areas, and supply land in the future, and if it is permitted to develop it to an area with excellent preservation status of farmland and green areas, it is anticipated that there is little urban infrastructure, and land category is insufficient, and if it is permitted to develop it to an area with excellent preservation status of farmland and green areas, it is anticipated that it should be managed in accordance with urban planning (natural green belt area).

A permit disposition was made.

D. On July 27, 2016, the Plaintiff filed an appeal with the Gyeong-do Administrative Appeals Commission, and on July 27, 2016, the Gyeong-do Administrative Appeals Commission revoked the civil petition No. 18253, and rendered a ruling dismissing the remainder of the claims ( civil petition No. 18720, the Defendant and the son-do Administrative Appeals Commission were completely consulted).

E. The Plaintiff filed the instant lawsuit on April 26, 2016, and the Defendant sought revocation of the part concerning civil petition No. 18255 (hereinafter “instant disposition”) among the disposition of non-permission for complex civil petitions filed with the Plaintiff on April 26, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 3 and 4, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. The issues of the instant case

The defendant issued the disposition in this case on the ground that the permission for development was not granted (hereinafter referred to as "the first disposition ground"), the permission for diversion of farmland was not granted (hereinafter referred to as "the second disposition ground"), and there is an issue of whether the disposition in this case is an error of law that deviates from or abused discretion in violation of the misunderstanding of facts, the principle of proportionality, the principle

(b) Relevant legal principles;

Since permission for development activities under Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and permission for diversion of farmland under Article 34 of the Farmland Act are granted discretion to administrative agencies in determining whether each requirement is indefinite concepts, it constitutes a discretionary act. Therefore, the act of changing the form and quality of land pursuant to the National Land Planning Act and permission for diversion of farmland pursuant to the Farmland Act constitutes discretionary act. Unlike judicial review on binding acts, judicial review on administrative acts falling under discretionary action is required to determine whether there is deviation or abuse of discretionary power without a court’s independent conclusion in light of the public interest based on the discretion of the administrative agencies. The review on whether there is deviation or abuse of discretionary power is subject to such determination, such as misconception of facts and violation of the principle of proportionality. With respect to deviation or abuse of discretionary power, a person who disputes the validity of such administrative act bears the burden of proof (see, e.g., Supreme Court Decision 2015Du41579, Oct. 27, 2016).

1) The plaintiff's assertion

The land adjacent to each of the instant lands is constructed, infrastructure has already been installed, and the said infrastructure may be immediately connected to each of the instant lands. In addition, each of the instant lands has no preservation value because it is virtually left alone, and rather, it is in harmony with the surrounding environment or scenery by constructing a multi-family house on each of the instant lands. Each of the instant lands is the last site for securing the prospect of the Jeju Southern Reservoir, and there is no risk that the instant land will lead to the locking of neighboring sites or the reckless development. In addition, in light of the fact that the instant disposition is likely to be suffered from the failure of the Plaintiff’s legitimate exercise of property rights due to the instant disposition, and that the permission for development of neighboring lands, such as each of the instant lands and the specific use area, current status, etc., has already been achieved, the instant disposition on the ground of the instant disposition is erroneous by misapprehending facts, proportional principles, and the principle of equality.

2) Whether the discretion is deviates or abused or not

In full view of the following circumstances, Gap's 4 through 6, 8 through 10, 12, 25 evidence, Eul's 5 through 7 (including numbers; hereinafter the same shall apply), and the result of the examination by this court and the following circumstances acknowledged by the entire purport of oral argument, it is difficult to deem that the disposition of this case on the ground of Disposition 1 is an abuse of discretion. Accordingly, the plaintiff's above assertion is without merit.

(1) Each land in this case is a natural green-belt in the special purpose district, where restrictive development is allowed only in extenuating circumstances for securing green-belt spaces, preventing urban expansion, and supplying future urban sites.

② Each of the instant lands is located in the vicinity of the Jeju Southern Reservoir. It is highly necessary to preserve each of the instant lands as a buffer site in order to prevent reckless development in the vicinity of the Jeju Southern Reservoir and prevent the erosion of surrounding farmland. Moreover, when the Plaintiff newly constructs multi-household housing on each of the instant lands, development activities may continue on the neighboring site. Each of the instant lands is linked to an urban planning road connected with a road with a concrete packaging form in the width of 6 meters. However, the said road is a road cultivated after illegally constructed around February 2014. Since each of the instant lands is not directly connected with urban planning roads and water supply facilities, it is difficult to deem that the Plaintiff’s family members are equipped with infrastructure for constructing multi-family housing in itself.

④ As alleged by the Plaintiff, even if the Defendant, as alleged by the Plaintiff, engaged in permission to engage in development activities, such as the 1035-1 unit, etc., the said land is distinguishable from each of the instant land in terms of its location, size, specific utilization status, etc., and thus cannot be simply compared with each of the instant land. Therefore, it cannot be readily concluded that the instant disposition was unfair discrimination against the Plaintiff.

⑤ Even if there are restrictions on the Plaintiff’s exercise of property rights due to the instant disposition, the public interest going to promote environmentally sound and sustainable development through the conservation of the natural environment and the efficient utilization of resources cannot be said to be less than the disadvantage the Plaintiff suffers.

D. As to the ground for second disposition

1) The plaintiff's assertion

In light of the fact that the instant orchard is virtually neglected and thus, it is in harmony with the surrounding environment or landscape by constructing a multi-family house, and even if the farmland diversion permission is granted, it is no longer likely to lead to the locked or reckless development of the neighboring site. In addition, the instant disposition is likely to suffer any disadvantage due to failure to exercise the Plaintiff’s legitimate property right, and permission for development of neighboring land similar to each of the instant land, specific use area, current status, etc. is achieved, etc., the instant disposition on the ground of the instant disposition on the ground of the instant disposition on the ground of the ground of the instant disposition on the ground of the instant disposition is erroneous in matters of law

2) Whether the discretion is deviates or abused or not

In full view of the following circumstances, the instant disposition on the ground of the ground of the second disposition is difficult to deem that there was an error of deviation from or abuse of discretionary power, taking account of the aforementioned evidence, Gap evidence No. 11, Eul evidence No. 8, Eul evidence No. 9, the verification result of this court, and the following circumstances acknowledged by the purport of the entire pleadings. Therefore, the Plaintiff’s above assertion is without merit.

① Determination as to whether the necessity for the preservation of farmland prescribed in the Farmland Act is a farmland that is actively cultivated according to its realistic or economic condition, rather than whether it is farmland that is being cultivated actively. In light of the aforementioned circumstances, it is necessary to preserve the instant orchard as a buffer district to prevent the erosion of surrounding farmland in light of the aforementioned circumstances.

② As alleged by the Plaintiff, even if the Defendant permitted diversion of farmland in the Donggwon-si, Changwon-si, the said land differs from the instant orchard in terms of its location, size, and specific usage status, etc., and thus cannot be simply compared with the instant orchard. Therefore, it cannot be readily concluded that the instant disposition was unreasonable discrimination against the Plaintiff.

③ Even if there is a restriction on the Plaintiff’s exercise of the Plaintiff’s property right due to the instant disposition, public interest going to promote environmentally sound and sustainable development through the conservation of the natural environment and the efficient utilization of resources, and thereby, it cannot be said that the Plaintiff’s disadvantage is less than the Plaintiff’s loss. ④ Rather, the instant orchard was divided into 486-1, Changwon-si, Changwon-si, Changwon-si, Changwon-si, and the Plaintiff acquired the instant orchard for the purpose of agricultural management on September 24, 2015 (No. 9). Moreover, the Plaintiff filed an application for a complex civil application for construction of multi-family housing to the Defendant for the construction of multi-family housing on each of the instant orchard as long as the Plaintiff had actually left the instant orchard and continued to engage in agricultural management in the instant orchard, consistent with the Plaintiff’s purpose of acquiring the instant orchard, and consistent with the purport of the relevant Acts and subordinate statutes, such as the Farmland Act, by having a person engaged in agriculture own farmland.

Therefore, it is reasonable to deny permission to divert farmland.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.