Hanmun Housing Co., Ltd. (Attorney Choi Young-young, Counsel for the plaintiff-appellant)

Military Industry City (Attorney Jeon Jong-ho, Counsel for the defendant-appellant)

March 9, 2001

1. The rejection of the application filed by the Defendant to the Plaintiff on February 10, 200 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of disposition;

The following facts are not disputed between the parties, or can be recognized according to the statements in the evidence Nos. 5 and 6.

A. On July 16, 1999, the Plaintiff filed an application for approval of the housing project plan with the Defendant to construct one apartment unit (the first floor, the 6 to 8th floor on the ground), which is an apartment unit, on the ground of 173-1 and 7,498 square meters (hereinafter “the apartment complex” in this case), on the ground that the instant apartment complex is located around the monthly scenic park, which is an urban natural park, and is likely to impair the environment, scenic view, etc. surrounding the park at the time of implementation of the project, the Plaintiff rejected the application for approval of the housing project plan on the ground that the instant apartment complex is located around the monthly scenic park, which is an urban natural park.

B. On July 31, 1999, the plaintiff filed an administrative appeal seeking the revocation of the above return disposition with the Governor of Jeollabuk-do, a ruling authority. Accordingly, on September 10, 1999, the Governor of Jeollabuk-do, which is the ruling authority, ordered the revocation of the above return disposition on the ground that the defendant's above return disposition abused discretion, and it is more likely that the effects of the plaintiff's project implementation due to the plaintiff's project implementation and the public interest of the supply of rental housing for urban ordinary people is greater than the public interest that the above return disposition is made, and that the plaintiff's private interest should be protected for several years.

C. According to the above decision, the Plaintiff submitted a civil petition for approving the housing construction project plan on November 6, 199, the Defendant reviewed the project plan on November 19, 199, including accepting the decision of the above Governor of Jeollabuk-do on November 19, 199, and consulting about whether the project plan conforms to relevant Acts and subordinate statutes. On December 27, 1999, the Plaintiff requested the Plaintiff to revise the plan on December 27, 199 on the ground that there was a serious defect in the initial application for the housing construction project plan.

D. On January 26, 200, when the defendant requested the plaintiff to supplement documents again on January 26, 200 as the plaintiff failed to comply with the request for supplementation, the defendant notified the return of the civil petition documents in accordance with the civil petition processing rules, but made a disposition rejecting the above approval application on February 10, 200 on the ground that the plaintiff failed to comply with the request (hereinafter "the disposition of this case").

E. On January 18, 200, the Plaintiff asserted that the Defendant’s application for the approval of the housing construction project plan on July 16, 1999 (hereinafter “the initial plan”) was delayed for a long time without implementing the disposition following the above decision, and filed a petition for adjudication on the performance of the duty to obtain approval for the housing construction project plan with the Governor of Jeollabuk-do, a ruling authority, but the Governor of Jeollabuk-do dismissed the Plaintiff’s application on May 6, 200 on the ground that the supplementary supplement required by the Defendant to the Plaintiff

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant claimed that the disposition of this case is unlawful since the plaintiff did not comply with the defendant's request for supplementation of the following matters, and the plaintiff rejected the plaintiff's application for approval of housing business because it did not comply with the defendant's request for supplementation, the plaintiff asserted that the disposition of this case is legitimate, since there are no grounds for the defendant's request for supplementation, or the plaintiff supplemented it.

(1) The alternative entry is not secured.

According to the plan to connect the entrance and exit road of the apartment complex of this case under the original plan, the defendant asserts that the traffic volume of the apartment complex of this case is increased as well as the connection point between the apartment complex of this case and the Corporation is a parking line with a strong slope, so it is impossible to enter the road due to road conditions unless road improvement to lower the gradient of the road. The plaintiff's access road opening site is owned by the military city, which is necessary to maintain the normal part of the city, and can not be provided as the apartment entrance site for a specific person rather than an unspecified number of people, because it is an administrative property owned by the military city for the purpose of maintaining the common part of the city and building the convenience facilities and green space for citizens, and thus, it is necessary to secure an alternative entry road. However, the plaintiff's request for the above supplementation is impossible to secure an alternative entry from the present site, so it is not possible to use the existing access road. Thus, the plaintiff failed to comply with the defendant's request for supplementation.

(2) A modification to a connecting plan to the official of the office of the Corporation;

According to the drainage plan for the apartment complex of this case under the original plan, the defendant was prepared to connect the connection route of the apartment complex of this case to the existing pipelines installed in the Seo-gun Power Station adjacent to the apartment complex of this case, but as a result of consultation with the Korea Electric Power Corporation, the owner of the apartment complex of this case, the plaintiff was notified by the Korea Electric Power Corporation that the use of the above pipelines was impossible, and requested to supplement the plaintiff to submit documents for modification of the connection plan to the plaintiff, but the plaintiff as to the above request for supplementation was supplemented by the plan to discharge the above connection. In such a case, the connection route for the apartment complex of this case is constructed after the extension of the diameter of the sewage pipe of the Gunsan-si, and its detailed plan should be submitted. The plaintiff asserted that the plaintiff did not supplement the plan.

(3) Violation of construction restrictions, etc. in the scenic zone and height zone

The defendant asserts that the building originally planned is in conflict with the limitations on construction in the scenic zone and height zone, and that the building's rooftop rail and rooftop structure are in conflict with the highest height restriction line in the height restriction zone, and that the plaintiff was demanded to supplement the building, but the plaintiff was legally designed under Article 46 of the Building Act and Article 77 of the Enforcement Decree of the Building Act, and that the building's rooftop rail and rooftop structure are not in conflict with the height restriction. In addition, the building's rooftop rail and rooftop structure are not in conflict with the height restriction. However, as a result of the defendant's review, although the building's rooftop rail and structure are not included in the height of the building under the Building Act, they did not supplement the building even though they are included in the height of the high height restriction line.

(4) Failure to take measures to conserve a ludial park;

The defendant asserts that the legal surface processing that occurs at the time of the formation of a site should be constructed in conformity with the standards for the establishment of special purpose districts around the park area and the urban design for the conservation of the scenic park in consideration of the geographical characteristics and the safety of soil and sand collapse, and that the exposure of the retaining wall should be minimized by planting materials, etc. However, the plaintiff tried to make the most appropriate supplementation in accordance with the guidelines for the establishment of special purpose districts around the park area around the scenic park for the conservation of the scenic park and the urban design standards, and that the plaintiff did not comply with the request to supplement the legal surface processing plan that occurs at the time of the formation of the site by supplementing

(5) Violation of regulations on housing construction standards, etc.

According to the provisions of Article 30 of the Regulations on Standards, etc. of Housing Construction and Article 7 of the Regulations on Standards, etc. of Housing Construction, the defendant asserts that the plaintiff failed to implement the supplementary matters of the defendant demanding the establishment of the team by supplementing that the plaintiff designed the height of the slope in 270cm with the height of the slope in 270cm and designed the height of the slope in 3 meters not exceeding 3 meters.

B. Determination

(1) We examine the securing of alternative access paths and the request for supplementation of the connection plan with the office of error and quality.

(A) Facts of recognition

In order to build one apartment unit, 256 households in the apartment complex in this case, the fact that the plaintiff filed an application with the defendant for approval of the housing business plan for the construction of the apartment complex in this case is recognized as above, and in full view of the whole purport of the pleading in the items of evidence Nos. 6-2, evidence No. 14, evidence No. 8, and evidence Nos. 11, and evidence Nos. 8 and 11, it can be acknowledged that the apartment complex in this case is established on the east side of the apartment complex as the Gunsan Port-U.S. Corporation, and that a collection and alteration is installed on the south side of the apartment complex.

(B) Relevant statutes

Article 36 of the Housing Construction Promotion Act

(1) Paragraph (1): Where a project undertaker constructs housing exceeding the number of units prescribed by Presidential Decree, or prepares a site exceeding the area prescribed by Presidential Decree, any of the following persons shall install the relevant arterial facilities, and 1. In cases of roads, waterworks and sewerage systems, local governments

4: Scope of installation by type of arterial facilities under paragraph (1) shall be prescribed by the Presidential Decree.

Article 35 of the Enforcement Decree of Housing Construction Promotion Act

(1) For the purpose of Article 36 (1) of the Act, the term "housing with at least the number of houses prescribed by Presidential Decree" means housing constructed collectively with at least 100 units, and the term "site exceeding the area prescribed by Presidential Decree" means a site created with an area of at least 16,50 square meters collectively.

4: Installation scope of arterial facilities by type under the provisions of Article 36 (4) of the Act shall be as shown in the attached Table 6.

The scope of installation by type of main facilities in the attached Table 6

1. Roads: The roads located outside a housing complex to the boundary line of the complex (referring to the main entrance of the complex; hereinafter the same shall apply) shall be limited to the excessive part, in cases where the length exceeds 200 meters;

2. Water supply and sewerage systems: Water supply and sewerage systems located outside a housing complex to the boundary line of the relevant complex, which shall be limited to the excess part, in cases where the length exceeds 200 meters;

(C) Determination

In a case where the length from the boundary line of the apartment complex of this case to the waterworks and sewerage facilities used as the above Corporation or Gun-si as the period of use exceeds 200 meters, notwithstanding the obligation to install access roads or water supply and sewerage systems from the above apartment complex to the site of the above apartment complex only for the part exceeding 200 meters, the defendant demanded the plaintiff to supplement without examining whether the length from the above apartment complex boundary line to the waterworks and sewerage facilities used as the above Corporation or Gun-si as the period of use exceeds 20 meters. Meanwhile, in full view of the purport of the arguments as stated in the evidence No. 10-1 to 3, evidence No. 11-1, evidence No. 11-2, and evidence No. 9-2, the plaintiff owned most of forests and fields necessary to enter the above apartment complex as the period of time from the above Corporation, and the part owned by the Si-Gun-si is currently being used as the road, and the defendant can not request the plaintiff to construct access roads to the above apartment complex for a different period from the above Corporation.

(2) We examine whether the above building conflicts with the limitations on construction in the scenic zone and height zone.

(A) Facts of recognition

The following facts can be acknowledged in full view of Gap evidence 3-2, Gap evidence 6-2, Eul evidence 10-1, and Eul evidence 10-1, and witness testimony, the whole purport of the pleadings.

1) The apartment complex of this case was designated as a park or a general residential area under the Urban Planning Act on March 27, 1976 as an area adjoining a monthly scenic park. On July 5, 1994, the Gunsan City designated and managed the forest in the vicinity of the instant forest as a scenic zone, the fifth-class aesthetic zone, and the highest height zone on July 5, 1994 in order to restrain the reckless development of the surrounding park and to play a role as an urban park. The instant apartment complex of this case was managed as a scenic zone, the fifth-class aesthetic zone, the highest height zone, and most of the remaining parts of the instant forest land of this case conflict with a scenic zone, the fifth-class aesthetic zone, and the highest height zone are not a building site.

2) The height of the apartment to be constructed by the Plaintiff is 4.7m in the case of the 7th to 8th floor, 4.7m in the case of the 7th floor and 47.3m in the case of the 8th floor. The restriction height of the apartment complex of this case is not uniform, but is set from 45m in the case of the 7th floor in each branch, and the height of the apartment complex is set from 46m in the case of the 48m to 50m in the case of the branch where the height of the apartment is 8th floor.

3) In the event of installing a rail or roof tower on the apartment in the above apartment, the above-mentioned height altitude is above about 6 to 8 meters.

4) Article 46 of the former Building Act (amended by Act No. 6370 of Jan. 16, 2001) provides that measures to be taken when a building site extends over an area, district, or district shall be prescribed by Presidential Decree. However, Article 70 of the Enforcement Decree of the Building Act, which provides for such measures, was deleted by Presidential Decree No. 16,284 of Apr. 30, 1994. As such, Article 70 of the Enforcement Decree of the Building Act was deleted, the above regulatory content was transferred to Article 53 of the Urban Planning Act, and Article 53 of the Urban Planning Act provides that the Urban Planning Act shall be again prescribed by municipal ordinance. The Gunsan does not provide for special provisions regarding measures to be taken when the height of the building extends over an area or district at the time of the instant disposition.

(B) Relevant statutes

Article 46 of the former Building Act (amended by Act No. 6370 of January 16, 2001)

Where a building site extends over an area, district (excluding a fire prevention district; hereafter the same shall apply in this Article) or district under this Act or other Acts, the provisions concerning buildings, sites, etc. in the area, district or district in which a majority of the site is included shall apply to the whole of such building and site as prescribed by Presidential Decree: Provided, That where the building extends over an aesthetic zone or height zone, the provisions concerning the buildings, sites, etc. in the aesthetic zone or height zone shall apply to the whole of such building and site.

Article 68 of the former Enforcement Decree of the Building Act (amended by the Presidential Decree No. 16,874 of June 27, 200)

1: A building prescribed by Building Ordinance as an obstacle to the preservation and maintenance of natural landscapes in a scenic zone shall not be constructed.

(2) Paragraph (2): Building-to-land ratio and height of buildings within the scenic zone, and landscaping in the site shall be prescribed by Building Ordinance within the scope necessary for the preservation and maintenance of natural scenic landscapes in the zone.

Article 70 of the former Building Act (amended by the Presidential Decree No. 16284 of April 30, 199)

(1) Paragraph (1): No building shall be constructed in excess of the height determined by urban planning within the highest height restriction zone: Provided, That this shall not apply to cases where the Mayor, etc. deems through the deliberation by a local building committee that the purpose of designation of a district

(1) The size, height, number of floors, etc. of a building under Article 73 of the Enforcement Decree of the Building Act shall be calculated by the following methods:

5. Height of a building: it shall be the height [in case where a piloti is installed on the entire first floor of the building (including guards’ room, stairs room, elevator room and other similar ones for the purpose of using the building), the height excluding the height of the piloti floor in applying the provisions of Articles 82 and 86 (2)] from ground surface to the top of the building concerned: Provided, That in cases falling under any one of the following items, it shall be subject to the conditions as referred to in each item:

(c) An elevator tower, stairs tower, watch tower, decoration tower, roof tower, etc. which are installed on the rooftop of a building, where the sum of the horizontal plane projection area is not more than 1/8 (1/6 in case of an apartment house subject to the approval of project plans under Article 33 (1) of the Housing Construction Promotion Act, in which the exclusive area by each household unit is not more than 85 square meters, from among the apartment houses subject to the approval of project plans under Article 33 (1) of the Housing Construction Promotion Act,

(d) Roof-projecting parts of a roof ridge decoration, chimney and fire wall, and other similar roof-projecting parts and a railing (limited to one in which more than half of the wall area is a space) shall not be included in the height of the building;

Article 33 of the Urban Planning Act

Paragraph 1: The Minister of Construction and Transportation or the Mayor/Do governor may determine the designation of any of the following districts through an urban planning when it is deemed necessary for the promotion of public safety and order and urban functions:

1. Scenic district: A district required for protecting and creating urban scenery;

2. Aesthetic district: District required for maintaining the aesthetic view of cities;

3. Height district (minimum height district and maximum height district): District in need of regulating the minimum or maximum limit on the height of buildings in order to create an urban environment and to make a high-level utilization of land and its promotion;

Article 53 of the Urban Planning Act

(2) Paragraph (2): Except as otherwise provided for in this Act or other Acts, the restriction on the use, type, scale, etc. of buildings in a district designated pursuant to Article 33 may be prescribed by municipal ordinance of the Special Metropolitan City, a Metropolitan City, a Si, or a Gun in accordance with the standards prescribed by

Article 41 of the former Gun-si Building Ordinance (wholly amended by Act No. 469 on December 30, 2000)

The height of a building constructed in a scenic zone pursuant to Article 68 (2) of the former Enforcement Decree of the Building Act (amended by the Presidential Decree No. 16,874 of June 27, 2000) shall not exceed three floors.

(C) Determination

Article 41 of the former Gun-si Building Ordinance (amended by Act No. 469 of Dec. 30, 200) is not applicable to the apartment complex in this case where a part of the site is in conflict with the scenic zone, but the apartment complex planned by the Plaintiff does not conflict with the scenic zone, and Article 46 of the former Gun-si Building Ordinance (amended by Act No. 6370 of Jan. 16, 2001) provides that the provisions concerning the buildings, sites, etc. in the aesthetic zone or height zone shall be applied to the whole of the building and site in a case where the building extends to an aesthetic zone or height zone. However, the above provisions are not applicable to the apartment complex planned by the Plaintiff because the apartment is not included in the aesthetic zone or height zone.

Even if the provisions of Article 46 of the former Building Act (amended by Act No. 6370 of Jan. 16, 2001) are applied, it is deemed that the height of the apartment except the rooftop rail, etc. is not the height of the building, and therefore, the defendant's request for supplementation is illegal because it does not conflict with the height of the apartment except the above rooftop rail, etc., and therefore, it is illegal that the defendant's request for the supplementation was made a deviation or abuse of its discretionary power.

(3) We examine the request for supplementation of the legal surface disposal plan for the conservation of a scenic park.

(A) Facts of recognition

According to the evidence Nos. 6-2 and evidence Nos. 12-1 through 3 and witness testimony, the basis of the above apartment under the original plan is lower than that of the retaining wall, etc., and the above apartment building is required to be installed at a distance of at least 5 meters from the outer wall of the apartment building and the retaining wall, and the two retaining walls and the boundary line of the above initial retaining wall are planned to be installed additionally between the retaining wall and the retaining wall and the retaining wall.

(B) Relevant statutes

Article 30 of the Regulations on Housing Construction Standards, etc.

(1) Paragraph (1): In a case where a retaining wall or an embankment (hereinafter referred to as “ retaining wall, etc.”) with a height of not less than 2 meters in a housing complex (including the outer part of the outer part of the complex boundary line), or such a retaining wall, etc. are installed, the outer part of the building shall be left at the height of the retaining wall, etc., except in the case falling under any of the following subparagraphs:

1. A building which is lower than the foundation of a retaining wall, etc. In such cases, the outer part of the building shall be at least 5 meters (3 meters for a building with not more than 3 floors) from the retaining wall, etc. to the outer part of the building;

(C) Determination

The Plaintiff’s above legal surface management plan is lawful in accordance with the relevant statutes, such as the Regulations on Standards, etc. for Housing Construction. Meanwhile, in consideration of topographical characteristics and the safety of soil and sand collapse, the Defendant is required to conduct legal surface management in compliance with the standards for the establishment of special purpose districts around parks and urban design in order to preserve a scenic park, and to minimize the level of exposure to retaining walls by planting, etc., but the Defendant is required to supplement the legal surface management plan in a timely manner without any basis under the relevant statutes. Thus, the Defendant’s above request for supplementation is unlawful as it does not have any

(4) We examine whether the Plaintiff’s initial plan violates the Regulations on Standards, etc. for Housing Construction.

(A) Facts of recognition

In full view of evidence Nos. 6-2 and 12-1 through 3 of evidence Nos. 6-2 and witness testimony, the height of the sloped surface refers not to the height from the ground surface to the upper part of the sloped surface, but to the lower part of the sloped surface, and it refers to the height of the sloped surface between the retaining wall and the retaining wall (the space between the retaining wall and the retaining wall), and it can be acknowledged that the Plaintiff designed the retaining wall height from 2.6m to 2.7m of the lower part, and 2.5m of the lower part.

(B) Relevant statutes

Article 30 of the Regulations on Housing Construction Standards, etc.

(4) Paragraph (4): Matters necessary for flood damage prevention, etc. other than those prescribed by paragraphs (1) through (3) shall be prescribed by the Ordinance of the Ministry of Construction and Transportation

Article 7 of the Regulations on Housing Construction Standards, etc.

(1) Paragraph (1): In cases where there are slopes in a housing complex (including the outer part around the boundary line of a complex), measures to prevent flood damage, etc. shall be taken under the conditions as prescribed by the following subparagraphs:

2. Where the height of a slope is more than 3 meters, the size of the slope shall be at least 1/5 of the size of the slope every 3 meters or less.

(C) Determination

Since the Plaintiff designed the height of retaining wall from 2.6m to 2.7m and the upper width to 2.5m, the Plaintiff’s initial plan is lawful in accordance with the Regulations on Standards, etc. for Housing Construction. In addition, the Defendant demanded the Plaintiff to supplement the Plaintiff in the form of installing four parts in stairs from the ground surface to the lower part of the slope surface. However, in full view of the whole purport of the pleadings, it can be acknowledged that, in the case where several constructions are completed in the form requiring supplementation, the site where the Defendant is able to construct an apartment is narrow and that the construction of the apartment itself becomes very difficult. Accordingly, the Defendant’s above request for supplement is unlawful without any legal basis or by abusing or abusing its discretionary power.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Donsung (Presiding Judge)