In formulating and determining an urban planning for the establishment of an off-road parking lot, which is an urban infrastructure, the scope of discretion held by an administrative agency.

In formulating and determining an urban planning for the establishment of an off-road parking lot, which is an urban infrastructure, for the achievement of the objectives of parking administration, the administrative body has a relatively broad freedom to determine the necessity and details thereof according to the professional, technical, and policy judgment. Whether to establish an off-road parking lot is necessary due to its nature, it is necessary to consider not only the demand for parking in the relevant area at the time of drafting and determining an urban planning for the establishment of the off-road parking lot, but also the future parking demand to contribute to the maintenance and improvement of urban functions, as well as the demand for parking in the relevant area at the time of determining the urban planning for the establishment of the off-road parking lot, but also the use of land in the area where the party concerned with the plan for the installation of the off-road parking lot is to establish the off-road parking lot, the freedom of formation in determining the necessity and details thereof, but also the need to fairly compare the interests of the persons related to the plan with the public interest and private interests as well as between the public and the public interest and the private interests. Therefore, if the administrative body fails to include or exclude the interests of the land.

Article 36 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002) (see current Article 43 of the National Land Planning and Utilization Act), Article 32 of the former Rules on the Standards for Urban Planning Facilities (repealed by Article 2 of the Addenda to the Rules on the Determination, Structure and Standards for Installation of Urban Planning Facilities, Act No. 343 of Dec. 30, 2002) (see current Article 30 of the Rules on the Determination, Structure and Standards for Installation of Urban Planning Facilities), Articles 6 and 12 of the former Parking Lot Act (amended by Act No. 6655 of Feb. 4, 2002), Articles 5, 6, and 7-2 of the former Enforcement Rule of the Parking Lot Act (amended by Ordinance No. 390 of Feb. 7, 2004)

Supreme Court Decision 98Du2768 delivered on March 23, 2000 (Gong2000Sang, 1067) Supreme Court Decision 2001Du10851 Delivered on July 11, 2003 (Gong2002Du5474 Delivered on March 10, 2005) Supreme Court Decision 2005Du3103 Delivered on February 10, 2006

Plaintiff (Attorney Seo-sik et al., Counsel for plaintiff-appellant)

Government Market (Attorney Cho Yong-han, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Nu19598 delivered on August 29, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 36(1), (2), and (3) of the former Urban Planning Act (amended by Ordinance of the Ministry of Construction and Transportation No. 327, Aug. 31, 2002); Articles 2(1), 5, 31, and 32 of the Rules on the Standards for Urban Planning Facilities (amended by Ordinance of the Ministry of Construction and Transportation No. 327, Aug. 31, 2002); Articles 6, 12(1), and (6) of the Parking Lot Act (amended by Act No. 6655, Feb. 4, 2002); Articles 5, 6-2, and 7-2 of the Enforcement Rule of the Parking Lot Act (amended by Ordinance of the Ministry of Construction and Transportation No. 390, Feb. 7, 2004); however, in cases of an off-road parking lot, the need for the establishment of an open-road parking lot and the need for the establishment of an urban planning plan to be considered not only in terms of the need to establish and determine the land use of the public interest.

2. The lower court determined that the Defendant’s disposition of this case’s urban planning facilities for the purpose of using the instant land for the purpose of using the parking lot for the purpose of restoring the function of the road by removing the emergency vehicle parking lot due to the illegal parking on the side of the road, the inconvenience of local residents’ walking and residential life, etc. However, in light of the fact that it is not deemed necessary to install a parking lot for the purpose of using the instant land for the purpose of using the parking lot for the purpose of using the network monthly users, it is difficult to readily conclude that the Defendant’s disposition of this case’s land for the purpose of using the instant parking lot as a parking lot for the purpose of restoring the function of the road around the instant land, because it is not necessary to install a parking lot for the purpose of restoring the traffic of the instant land without considering the need to install a parking lot for the purpose of using the parking lot to the extent that it is difficult to view that it is not necessary to install a parking lot within the 4-meter radius of the instant parking lot due to the lack of reasonable or sufficient number of parking spaces.

Examining the above legal principles in light of the records, we affirm the above determination by the court below as just, and there is no error of law by misunderstanding the nature of the determination of urban planning facilities as alleged in the grounds of appeal, which did not consider future demand for parking or by misunderstanding the legal principles on discretionary authority in determining the necessity of parking lots.

However, according to the records, it is inappropriate for the court below to compare the suitability or necessity for the installation of a parking lot as it is not appropriate for the defendant to install a parking lot for the purpose of his own intention in this case, and on the other hand, it can be found that the suitability as a parking lot is reduced compared to the land in this case when considering the size, location, shape, entry, and accessibility of the parking lot. Thus, even if the designation of the land in this case as a parking lot site is compared to the case of ( Address 2 omitted) and ( Address 3 omitted), it is erroneous for the court below to have determined that it is doubtful that the land in this case is superior to the case of designating the land in this case, considering the size and location, etc., even if compared to the case of designating the land in this case, it is not possible to judge that the disposition in this case is unlawful because the disposition in this case was deviating from or abused the discretionary authority. However, this error does not affect the conclusion of the judgment.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-tae (Presiding Justice)