2015 Gohap5058 Revocation of provisional disposition for a building permit (new construction)

1. A stock company;

2. Kim○-○

3. Kim Jong-chul

[Judgment of the court below]

Jeju Market

Attorney Go Young-young, Counsel for the defendant-appellant

August 19, 2015

October 21, 2015

1. All of the plaintiffs' claims are dismissed.

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

The defendant's rejection disposition of each building permit application filed with the plaintiffs on December 2, 2014 is revoked.

1. Basic facts

A. The Plaintiffs jointly invested an aggregate of KRW 3 billion in each of KRW 1 billion and jointly owned by the Plaintiff Company, to construct a private telecom, which is an accommodation, on the three lots of land located within the 3,484m2, previous 1,635m2, and the three lots of land located within the 112m2m2 in the cemetery.

(b) Details of the previous building permit;

1) On April 22, 2013, the Plaintiff Company: (a) obtained from the Defendant on April 22, 2013, the building area was 601.65 square meters in size; and (b) the total floor area was 655.48 square meters in size on the land of 2,040 square meters in front of the Dong-gu, Chungcheongnam-do; and (c) obtained a building permit for principal use as a lodging facility.

2) On April 9, 2013, Plaintiff Kim ○○ issued from the Defendant on April 9, 2013 a building permit for the housing area of 612.01 square meters on the ground and total floor area of 657.64 meters on the land in the 1,616m square meters of the land in the Gu-si, Jeju-si, and the previous residential area. The main purpose is to obtain a building permit for accommodation facilities.

3) On April 22, 2013, Plaintiff Kim Young-chul, from the Defendant on the third parcel located in the Magdong-gu, Jeju-do, Jeju-si, the building area of the site is 612.01 square meters on the ground and the total floor area is 657.64 square meters on the ground of the 1,575 square meters of the site among the three parcels located in the Magdong-gu, Jeju-si, Jeju-si, and the main purpose of the construction permission was to obtain the building permission for accommodation facilities (hereinafter referred to

C. On September 12, 2014, the Defendant revoked the previous building permission for the Plaintiffs pursuant to Article 11(7) of the Building Act on the ground that the Plaintiffs did not commence the official construction for more than one year after obtaining the previous building permission.

D. On November 18, 2014, the Plaintiffs filed an application with the Defendant for a building permit, a development permit permit, and a farmland conversion permit with the same content as the Defendant, after the previous building permit was revoked ex officio (hereinafter “each of the above applications”).

E. On December 2, 2014, the Defendant did not permit each of the instant applications by the Plaintiffs for the following reasons (hereinafter “instant dispositions”).

Article 24(1) [Attachment 1] Article 24(1) of the former Ordinance on the Urban Planning of Jeju Special Self-Governing Province (amended by Ordinance No. 1288, May 13, 2015; hereinafter referred to as the "Ordinance of this case") as a planned control area under Article 36(d) of the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning and Utilization Act") on the land outside of the forest and land located in the Ya-ri, Ya-si, Ya-si, Jeju-si, Jeju-si, for the purpose of the use of infrastructure (3). One is to secure roads with a width of at least eight meters, but to meet the standards for permission for development activities at least eight meters (hereinafter referred to as "grounds for first disposition"). ② One is to prepare and implement measures for restricting natural landscape from 20 meters to 20 meters on both sides (hereinafter referred to as "the grounds for second disposition to 20 meters on both sides") as peace using many tourists.

F. Meanwhile, around October 2014, the Defendant prepared and implemented measures to restrict the construction permission of nearby unmanned telecom with peace. This is likely to cause difficult development to tourists, such as where many tourists have used it as a peaceful road, and the permission for the diversion of farmland, permission for the diversion of farmland, permission for the diversion of grassland, permission for the diversion of grassland, etc. is not granted in cases where construction is subject to the construction plan deliberation pursuant to the Ordinance on the Deliberation on the Construction Plan of Jeju Special Self-Governing Province pursuant to subparagraph 15 of Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act for facilities used for accommodation in accordance with Article 3-4 [Attachment Table 1] of the Enforcement Decree of the Building Act for the purpose of the deliberation on the construction plan of Jeju Special Self-Governing Province.

[Based on Recognition] The facts without dispute, Gap evidence 1-1 through 3, Eul evidence 3-1 through 8, 10 through 13, 16, 17, Gap evidence 5-1 through 6, 8 through 13, 16, 17, and Gap evidence 6-1 through 13, 8 through 16, 16 through 18, Eul evidence 7-1 through 6, Eul evidence 1-2, Eul evidence 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The defendant's refusal to grant the building permit itself to each of the applications of this case is too harsh for the following reasons, and it is more likely that it would be affected than the public interest to be achieved through it.

1) Of each of the instant applications, the part applied by the Plaintiff Kim ○○ among the instant applications satisfies the requirements of 8 meters as required by the instant Municipal Ordinance. Nevertheless, the Defendant’s rejection of the application for a building permit on the grounds that the Defendant did not have eight meters as the Plaintiff Kim○-○’s entrance road (hereinafter “instant Claim 1”).

2) In addition, the situation at the time when the Plaintiffs received the previous building permit of this case and the situation at the time of applying for the construction permit of this case is the same. However, the part where the width of the access road does not reach eight meters at the time of applying for the construction permit of this case is extremely limited to 41 meters and part of the access road. As such, the Plaintiffs applied for the development permit by indicating that there is a part where the width of the access road does not reach eight meters among the subject land. As such, the part where the width of the access road does not reach eight meters is insignificant, and there are many cases where the construction permit was granted on condition that it will secure ex post facto the width of the access road. Thus, the Defendant was able to grant a conditional construction permit (hereinafter referred to as the “

3) The instant measure presented by the Defendant for the refusal of the instant application for permission was implemented as of October 22, 2014, and was not at the time of the instant previous construction permission. The Plaintiffs were not at the time of the instant previous construction permission. The Plaintiffs received each of the instant previous construction permission, but did not reach a limited period due to health conditions, and subsequently filed the same application for construction permission to re-construction after the cause was terminated. Nevertheless, the Defendant issued this case on the ground that the reason was not at the time of the previous construction permission. In addition, even though the unmanned telecom is limited to one type of accommodation, the Defendant did not permit the Plaintiffs to apply for construction permission without any reasonable reason, as it was based on the previous perception of the negative view of the unmanned telecom (hereinafter referred to as “section 3”).

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Legal nature of construction permit for each of the applications in this case

1) A permit to change the form and quality of land pursuant to the National Land Planning Act is defined as an indefinite concept and thus an administrative agency’s discretionary power is granted to determine whether the prohibited requirements are satisfied. As such, a building permit that involves an alteration of the form and quality of land pursuant to the National Land Planning Act belongs to an act of discretion (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 2009Du1960, Feb. 25, 2010; 2013Du9625, Oct. 31, 2013).

2) Meanwhile, pursuant to Article 56(1)2 of the National Land Planning and Utilization Act and Article 51(1)2 of the Enforcement Decree of the National Land Planning and Utilization Act, where a person intends to change the form and quality of land (Article 56(1)2 of the Enforcement Decree of the National Land Planning and Utilization Act, he/she shall obtain permission from the Mayor, etc., and at this time, a change in the form and quality of land subject to permission means a change in the form and quality of land by means

3) Considering the overall purport of arguments in each of the statements in Gap evidence Nos. 4 through 6-3, 10, and 13 as a whole, the plaintiffs, while applying for each of the instant applications, have cut and filled up booms, etc. in the land by using development activities, and use earth and sand in the land site. The plaintiffs can recognize the permission for the development of land to be used in the rearrangement and landscaping of the land and the application for the permission for the diversion of farmland. In light of the present use, shape, etc. of each of the instant land, in order to construct a building on each of the instant land, the act of changing the form and quality of each of the above contents is necessary.

4) Therefore, each of the applications of this case belongs to the Defendant’s discretion whether to grant a building permit, which entails an alteration of the form and quality of land under the National Land Planning Act.

(d) Determination of scope of examination according to the nature of building permission;

1) The judicial review of discretionary action is, in principle, subject to whether there is a deviation or abuse of discretion, taking into account the room for public interest determination by the administrative agency’s discretion. The review of whether a deviation or abuse of discretion is made is subject to the determination of mistake of facts, violation of the principle of proportionality, etc. (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 2009Du19960, Feb. 25, 2010).

2) We examine whether the disposition of this case was properly made within the scope of the defendant's discretion based on the above criteria for review (However, the plaintiffs claim that the grounds merely serve as the basis for the determination of whether the administrative agency's discretionary intent is appropriate are divided into claims, and hereinafter the plaintiffs' claim is to determine whether the exercise of discretion is appropriate by dividing it by individual assertion according to the plaintiffs' claim).

E. Determination as to the First Claim

1) In full view of the above facts, the land subject to each of the instant applications is the ownership of the Plaintiff Company and it is difficult to view that the Plaintiff had access roads of 8m only the part applied by the original high-level Kim○○○ as the ownership of the Plaintiff Company (the Plaintiffs, according to the design drawings submitted by the Plaintiff, trying to build three buildings on each of the above land. However, it is difficult to view that Plaintiff Kim○○ has access roads of 8m because all of the said three buildings are located near the nearest distance, and in fact, it is difficult to specify Plaintiff Kim○○ as the part of Plaintiff Kim○○). Furthermore, it is insufficient to recognize the above facts only by the descriptions and images of the evidence Nos. 8 through 11 and No. 3, and there is no evidence to acknowledge otherwise.

2) Even if the Plaintiff Kim ○○ assumed that he had eight meters access roads, it is difficult to view the instant disposition against the Plaintiff Kim ○○ as unlawful for the following reasons. In other words, the Plaintiff’s first week, even though Plaintiff Kim ○○, was equipped with eight meters access roads, not granting a construction permit on the ground that the width of the high-priced access road does not exceed eight meters. However, in full view of the fact that the instant construction permit was the discretionary act on the ground of non-permission indicated by the Defendant, the determination related to the first week ought to be made from the perspective of whether the administrative agency’s failure to grant the construction permit in consideration of public interest is appropriate even if the Plaintiff Kim ○○ was equipped with eight meters access roads.

3) The circumstances revealed in the above facts are as follows.

① Article 24(1) [Attachment 1] of the Ordinance provides for specific criteria for permission to engage in development activities; d. In relation to the surrounding areas, buildings or structures constructed or installed by development activities do not damage the surrounding natural scenery and aesthetic view; E. In infrastructure (1), require not to cause any hindrance to surrounding traffic flow.

② The lands subject to each of the instant applications are planned management areas, which fall under Class V of the landscape conservation zone, Class V of the ecosystem conservation zone, and Class V of the ground, and are likely to seriously damage the surrounding natural scenery and aesthetic view if an unmanned telecom is opened on the ground (it is not justified solely on the ground that the level of preservation of the specific use district above the record is not high). Rather, each of the instant lands falls under Class V of the landscape conservation zone and Class V of the natural park conservation zone, but the ground that may justify the construction of a building on the ground is located under Grade V of the landscape conservation zone and Class V of the natural park conservation zone. The Plaintiff does not assert and prove this part).

③ In addition, each of the above lands may cause traffic accidents or cause traffic congestion in the vicinity of peace, which is a major road in Jeju Special Self-Governing Province, if it is constructed according to the plans of the Plaintiffs.

④ In light of the general public’s perspective on the type of unmanned telecom, the age and purpose of use of unmanned telecom, etc., it is true that the unmanned telecom is considerably different from that of general accommodation. In light of this fact, it is difficult to allow the construction of unmanned telecom with the exception of the above characteristics of the unmanned telecom solely on the ground that the concept of gender changes somewhat openly and openly as alleged by the Plaintiffs.

4) Comprehensively taking account of the above circumstances, Plaintiff Kim○-○ has access roads to eight meters. Even if it is difficult to view the instant disposition that the instant disposition did not grant a building permit to Plaintiff Kim○-○ was deviates from or abused by discretionary power, and there is no evidence to acknowledge otherwise.

F. Determination as to the second proposal

1) Article 58(1) of the National Land Planning and Utilization Act provides for the general standards for permission for development activities, and Article 58(3) provides that the criteria for permission shall be determined by the Presidential Decree in consideration of the characteristics of the region, the development status of the region, the current status of infrastructure, etc. In this regard, Article 243(11) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter referred to as the “Special Act on Jeju”) provides that the criteria for permission for development activities may be prescribed by Provincial Ordinance, and accordingly, Article 24(1) [Attachment 1] of the Ordinance provides for the detailed criteria for permission for development activities and provides for a road of at least eight meters wide in the case of accommodation facilities pursuant to subparagraph (3) of infrastructure.

2) Even in accordance with the Plaintiff’s assertion, the Plaintiff Company and the Plaintiff Kim Young-chul did not have 8m access roads according to the above development activity standard. Therefore, each of the instant new offices of the Plaintiff Company and the Plaintiff Kim Jong-tae did not meet the above requirements, and is in itself unlawful.

3) As to this, the Plaintiffs asserted to the effect that, without granting conditional permission, the Plaintiffs’ failure to grant all the building permission, even though they were extremely part of the part that did not meet the eight-meter access road requirements between the Plaintiff Company and the Plaintiff Kim Jong-tae, would deviate from and abuse discretionary authority.

4) In light of the following circumstances revealed in the above facts: (a) although the above conditions were not met, taking into account the reasons for not meeting the requirement of eight meters of access roads required by the above development permit granted to the Defendant, the Defendant did not have the authority to obtain permission or grant conditional permission; (b) even if there were cases where the previous administrative agency granted temporary permission on the condition that the access roads should be installed later, as alleged by the Plaintiffs, it is exceptionally recognized in consideration of the administrative agency’s overall circumstances; (c) the process of the application for the instant construction permit and the access roads should be provided to accommodation; and (d) in particular, the land which the Plaintiffs wish to construct is likely to cause traffic accidents or cause traffic congestion if the access roads are not secured in neighboring peace, which is the main road in Jeju Special Self-Governing Province, and thus, it is difficult to deem that the Defendant did not grant a conditional construction permit to the Plaintiffs, and thus, it is difficult to deem that the Defendant did not itself go beyond the discretionary authority, without granting the conditional permission to the Plaintiff Company and the Plaintiff, thereby abusing or abusing its discretion.

G. Determination as to the third proposal

1) The circumstances revealed in the above facts are as follows.

① After the previous building permit was revoked ex officio, the Plaintiffs newly filed an application for each building permit of this case. Even if the previous building permit of this case and each of the applications of this case are the same as the previous building permit of this case, they constitute separate applications since they were newly filed after the previous building permit of this case became extinct. Therefore, the Defendant may determine whether to grant each of the applications of this case on the basis of the relevant statutes and internal discretion criteria within the administrative agency. Ultimately, it cannot be deemed unlawful to determine whether to grant each of the applications of this case, taking into account the measures of this case, which were not implemented at the time of

② Although the instant measure is merely a standard for exercising the discretion of the head of the Jeju Special Self-Governing Province Governor, which is based on the details of the Jeju Special Self-Governing Province Governor’s decoration, to eliminate traffic accidents, prevent accidents, and protect and maintain the surrounding natural scenery by preventing the development of distress around the area due to peace, and thus, its legitimacy is recognized based on the legislative purpose of the Jeju Special Act, which takes into account the regional and historical character of Jeju-do, and to ensure autonomy based on autonomy, accountability, creativity and diversity, and the specific contents of the criteria for permission for development activities presented by the Jeju Special Act and the Ordinance of this case. From this perspective, it is difficult to deem that the instant measure is particularly unreasonable to reflect the Defendant’s decision on whether to grant a building permit upon each application of this case as one of the criteria for exercising the discretion.

③ In light of the perception of the general public as seen earlier, it is difficult to view that the instant measure is particularly unreasonable to record the fact that the instant measure does not permit construction within a certain scope with only the unmanned telecomer. Also, in light of the materials revealed in the process of applying for a building permit for each of the instant buildings, there is a characteristic that prevents the previous social perception of the instant building from negative viewing the unmanned telecomer, or even with such negative perception, it is difficult to find any special reason to grant the instant building permit.

④ Furthermore, in light of the fact that the instant measure is prohibited from being built only on both sides within 200 meters from each side of the roads, which may cause damage to the natural landscape of the neighboring areas or cause any traffic obstacle, rather than entirely prohibiting the construction of the pathic unmanned telecom, it is difficult to deem that the instant measure is imposing excessive restriction on the property rights of the landowners of the pathic land.

2) In full view of the above circumstances, it is difficult to view that the Defendant’s instant measure was unlawful as the ground for exercising discretionary power in rendering the instant disposition, or that it was unjust to the Plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

(Presiding Judge)

Notarial decoration;

Complaints

Site of separate sheet

Relevant statutes

▣ 국토의 계획 및 이용에 관한 법률

Article 56 (Permission for Development Acts)

(1) Any of the following acts prescribed by Presidential Decree (hereinafter referred to as "development activities"):

A person who intends to do so shall be permitted by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a

(hereinafter referred to as "permission for development acts") shall be obtained: Provided, That acts performed under an urban or Gun planning project shall be performed by such person.

does not apply to section 1.

2. Alteration of the form and quality of land (excluding alteration of the form and quality of land prescribed by Presidential Decree for cultivation), Article 58 (Standards, etc. for Permission for Development Acts).

(1) The Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Special Self-Governing Province Governor,

Permission for development or change shall be granted only in cases where it meets the following standards:

1. To meet the scale of development activities prescribed by Presidential Decree in consideration of special-purpose areas characteristics: Provided, That a dog;

A large scale, such as where an act of outbreak is performed as a rural development project defined in subparagraph 4 of Article 2 of the Rearrangement of Agricultural

No restriction on scale of development activities shall be imposed on the cases prescribed by the Decree.

2. Not to be compliance with the details of an urban or Gun management plan and a growth management plan under paragraph (4);

3. Not to hamper the implementation of an urban or Gun planning project;

4. The actual condition of land use or the land use plan in peripheral areas, the height of buildings, gradient and status of trees;

It shall be in harmony with surrounding environments or landscapes, such as water drainage, drainage of rivers, lakes and marshes, wetlands, etc.

(3) If it is possible to grant permission pursuant to paragraph (1), the standards for such permission shall be the characteristics of the region, development status of the region, and infrastructure.

The following classification shall be prescribed by Presidential Decree in consideration of the status of facilities, etc.:

1. Use of urbanization: Use of land, and the use of land, building-to-land ratio, floor area ratio, height, etc. of buildings;

applicable to a residential, commercial and industrial area subject to permission for development activities according to

2. For reservation: Reinforcement of standards for permission for development activities through deliberation by the urban planning committee under Article 59;

A planned control area or production management area and green zone subject to applicable or relaxed application, as prescribed by Presidential Decree.

Area to be determined by

3. Preservation use: Reinforcement of standards for permission for development activities through deliberation by the urban planning committee under Article 59;

prescribed by Presidential Decree among conservation management areas, agricultural and forest areas, natural environment conservation areas, and green areas applicable thereto;

the area determined by the Corporation;

▣ 제주특별자치도 설치 및 국제자유도시 조성을 위한 특별법

Article 243 (Special Exception for Planning and Utilization of National Land)

(1) The National Land Planning and Utilization Act, . The main sentence of Article 56 (1), the proviso to Article 56 (2), and the same Article.

Section 4(4)3, .., ., ., ., ., 58(1)1, 58(3).

Matters to be prescribed by Ordinance of the Ministry of Information and Communication may be prescribed by Provincial Ordinance.

▣ 구 제주특별자치도 도시계획 조례(2015. 5. 13. 제주특별자치도 조례 제1288호로 개정되기

(2)

Article 24 (Standard for Permission for Development Acts)

(1) The criteria for permission for development activities under Articles 243 (11) and 58 (3) of the Special Act shall be as specified in attached Table 1.

Criteria for permission for development activities (related to Article 24 (1))

1. Matters to be examined by field;

(d) Relationship with neighboring areas;

(a) Damage to the natural scenery and aesthetic view around the buildings or structures constructed or installed due to development activities;

not, the height, form, and color thereof shall be in harmony with a neighboring building, and the Landscape Act;

be in line with the established landscape plan under this subsection.

(2) Air pollution, water pollution, soil pollution, noise, vibration, and vibration in the area and its surrounding area due to development activities; and

Environmental pollution, destruction of the ecosystem, occurrence of danger, etc. due to dust, etc. shall not be likely to occur: Provided, That this shall not apply;

Prevention of environmental pollution, the prevention of danger and injury, etc. due to possible occurrence, etc. of environmental pollution, ecosystem destruction, etc.

1. Where a condition is attached to the permission to create a green area, to create a buffer zone, etc., this shall not apply

H.C.

(e) Infrastructure;

(1) does not cause any trouble to the traffic flow of the surrounding area;

(3) Roads due to the use, size (including the size of the site), number of floors, number of houses, etc. of buildings;

The following standards concerning width shall be met, and entry parts of the site shall take into account the revolving of the vehicle:

It shall secure a sufficient width: Provided, That the residential area, commercial area, industrial area, and islands and groups attached thereto;

The above planning zone shall be excluded.

A person shall be appointed.