[1] Legal nature of a building permit that entails an act of changing the form and quality of land in an urban area designated under the National Land Planning and Utilization Act (= discretionary act)

[2] The method of judicial review of the administrative agency's discretionary act

[1] Articles 56(1)2, 58(1)4, and (3) of the National Land Planning and Utilization Act, Article 56(1) [Attachment 1] of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 27 of the Administrative Litigation Act / [General]

[1] Supreme Court Decision 2004Du6181 decided Jul. 14, 2005 (Gong2005Ha, 1353)

Plaintiff (Law Firm Law, Attorneys No Young-dae et al., Counsel for the plaintiff-appellant)

The head of Gwangju Metropolitan City Southern-gu

Gwangju High Court Decision 2011Nu869 decided October 27, 2011

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

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

1. The permission to change the form and quality of land pursuant to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) has a discretionary authority in determining whether the criteria for permission to change the form and quality of land and the requirements for prohibition are prescribed as indefinite concepts. Moreover, permission to change the form and quality of land in an urban area designated pursuant to the National Land Planning and Utilization Act, which entails changes in the form and quality of land in accordance with the National Land Planning and Utilization Act, shall be deemed both as having the nature of the building permission under the Building Act and the permission to change the form and quality of land in accordance with the National Land Planning and Utilization Act, and such building permission shall be deemed to fall under discretionary action. Meanwhile, in principle, judicial review on discretionary action shall be limited to whether there is deviation or abuse of discretionary authority, taking into account the room for determining the public interest at the discretion of an administrative agency, and the examination of whether or not to deviate or abuse the discretionary authority shall be subject to such determination, such as misconception of facts and violation of the principle of proportionality and equality (see,

2. According to the reasoning of the judgment of the court below, upon citing the reasoning of the judgment of the court of first instance, the court below determined that the Plaintiff’s disposition of this case was more likely to damage a forest, even if the Plaintiff’s previous disposition of this case was contrary to the principle of equity by taking account of the following: (a) the site of this case’s child-care center (hereinafter “the site of this case”) is the same green area as the site of this case in which the Plaintiff newly built the Plaintiff, and (b) 123 meters away from the south to the south; (c) the land of this case’s 130 meters away from the site of this case’s child-care center (hereinafter “the site of this case”) was the same as the site of this case’s application; and (d) even though the gradient falls short of the standards for permission for development acts as 11.29∑; and (d) the site of this case’s application of this case’s building permission, the Plaintiff’s disposition of this case’s building permission was more likely to be contrary to the aforementioned principle of equity after the Plaintiff’s refusal of this case’s construction permission.

3. However, we cannot accept the above judgment of the court below as it is.

According to the facts and records affirmed by the court of first instance as cited by the court below, Article 29 (2) of the Gwangju Metropolitan City Urban Planning Ordinance (hereinafter referred to as the "Ordinance of this case") which provides detailed criteria for permission, such as changing the form and quality of land, upon delegation by the National Land Planning Act and the Enforcement Decree thereof, prohibits in principle permission for land with a gradient of at least 10∑ or height of at least 100 meters, but only where it is deemed that there is no obstacle to surrounding areas after deliberation by the Urban Planning Committee, permission is possible. The gradient of the site of this case does not meet the above permission standards with a maximum of 15.4∑ and 104 meters. Although the land was used as part of dry field, it appears that the situation was used as a dry field, but it appears that the neighboring road is a dry field or wooden, and the gradient and elevation do not meet the above standards in terms of the gradient and elevation. However, the site of Gwangju Metropolitan City is merely nothing more than the gradient of November 29·100 and used as a dry field at the time.

Ultimately, the instant application does not meet the criteria for permission to engage in development activities stipulated in the instant Municipal Ordinance. Nevertheless, there should be circumstances such as the need for a critical public interest or the disadvantage suffered by the applicant when granting permission to engage in construction. Furthermore, considering the fact that the National Land Planning Act and the relevant statutes are based on the basic principles of ensuring that the environmental sound and sustainable development is achieved through the preservation of the natural environment and the efficient utilization of resources (Article 3 of the National Land Planning Act), barring special circumstances, it would accord with the public interest. In light of the records, barring any special circumstance, there is no ground to view that the establishment of child care centers of this case increases the convenience of neighboring residents and the preservation of the natural environment would create public interest. Accordingly, the circumstances cited by the lower court alone cannot be readily concluded that the Plaintiff’s disadvantage caused by the instant disposition violates the principle of proportionality, such as the need for public interest.

In addition, as seen above, since the above site and the application site of this case are different in their gradient and status, it is difficult to see that the conditions for permission to engage in the development activities on the application site of this case are superior to that on the mining virtue site of this case, and it does not seem that the Defendant granted permission to engage in the construction of the mining virtue that failed to meet some criteria prescribed by the ordinance of this case itself is an exceptional disposition, and it does not seem to have reached the degree of having a self-defense against the Defendant. Thus, the above circumstances cited by the court below cannot be deemed as unlawful in violation of the principle of equality.

Nevertheless, the judgment of the court below that the disposition of this case was unlawful because it exceeded or abused discretionary power, is erroneous in the misapprehension of legal principles as to the determination of whether or not the discretion of the administrative agency is deviates or abused, which affected the conclusion of the judgment.

4. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is remanded to the court below for a new trial and determination.

Justices Kim Chang-suk (Presiding Justice)