Park Jae-he (Attorney Song-dae et al., Counsel for the plaintiff-appellant)

The head of Si/Gun/Gu in Daejeon Metropolitan City

July 6, 2006

Daejeon District Court Decision 2005Guhap3143 Delivered on January 25, 2006

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's provisional disposition of denial of construction against the plaintiff on August 18, 2005 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On September 23, 2002, the Plaintiff obtained the permission to manufacture general high-pressure gas from the Defendant, and has been engaged in the business of producing general high-pressure gas in the trade name of “Span social gas” in the Dobong-dong 698 Daejeon Pongdong, and thereafter, obtained the permission to change the content of “the increase of treatment and storage capacity” on August 2, 2003 from the Defendant, and the permission to change the content of “the addition of treatment and storage capacity” on January 14, 2005, respectively.

B. After obtaining permission for modification as above, the Plaintiff filed an application for permission for construction with the Defendant (hereinafter “instant application”) around July 1, 2005 to extend facilities necessary for the manufacture of high-pressure gas on the spot of 698-1 square meters (hereinafter “the instant application site”) that is a natural green area adjacent to the said 698 land, which is a natural green area adjacent to the said 698 land.

C. As to this, the Defendant rendered the instant disposition on August 18, 2005, stating that “The instant application is a green-belt area in the special-purpose area and is in excess of the limit of permission for development (10,000 square meters) stipulated in the National Land Planning and Utilization Act (hereinafter “Act”) due to the adjacent development.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1-6, Gap evidence 2-1-4, and Gap evidence 3-11.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) misunderstanding of legal principles

Article 55(4) of the Enforcement Decree of the Act provides, “If a person is developed adjacent to a green belt area, control area, agricultural and forest area, or natural environment conservation area and is partially developed on several occasions, such area shall be deemed as one development act and shall be calculated accordingly.” However, such provision shall be interpreted only where the subject of development activities is the same. Even if a project operator or a project operator differs in the guidelines for the operation of permission for development activities prescribed by the Ordinance of the Ministry of Construction and Transportation, the provision regarding the connected development is null and void

Nevertheless, in determining whether the permission limit (10,000 square meters) is exceeded, the Defendant added up the area arising from the development activities conducted by a third party who is entirely unrelated to the Plaintiff and rejected the Plaintiff’s development activities on the basis thereof. Accordingly, the Defendant’s instant disposition is an unlawful disposition based on the erroneous interpretation of the law.

(2) Violation of the principle of trust protection.

On January 14, 2005, the Defendant granted to the Plaintiff permission to change the production of high-pressure gas for additional installation of high-pressure gas production facilities on the site of the instant application, and the Plaintiff trusted the Defendant’s prior act and filed the instant application. Since the Defendant rendered the instant disposition against such prior act, the Defendant’s disposition was in violation of the principle of the protection of trust and trust, and thus, it was unlawful.

(3) Violation of the principle of equality

Before the instant disposition, the Defendant’s rejection of the Plaintiff’s application for development activities and building permission to build a child care center on the ground of the same 505 ground located near the instant application site is unlawful against the principle of equality, even though it exceeds the limit of development permission (10,00 square meters).

B. Relevant statutes

/Building Act

Article 8 (Building Permits)

(1) A person who intends to construct or make a large-scale repair falling under any of the following subparagraphs shall obtain permission from the head of a Si/Gun/Gu: Provided, That in cases where he/she intends to construct a building of 21 stories or more and the use and scale of which are prescribed by Presidential Decree in the Special Metropolitan City or Metropolitan Cities, he/she

1. A person who intends to construct or repair the buildings in the urban area and the Class-II district unit planning zone designated under the National Land Planning and Utilization Act;

2. A person who desires to construct or repair a building on a large scale in a zone determined by the Presidential Decree;

3. A person who intends to construct or make a large-scale repair on a building with the total floor area of not less than 200 square meters or with three stories or more (in the case of extension, including a building the total floor area of which exceeds 200 square meters or more, or which has three stories or more, as a result of such extension) in any area or zone other than the areas or zones

(6) Where a building permit is granted under paragraph (1), the following permission, etc. or report shall be deemed to have been made, and in the case of a factory building, the authorization, permission, etc., of relevant Acts shall be deemed to have been obtained under Articles 13-2 and 14 of the Industrial Cluster Development and Factory Establishment Act:

3. Permission for development acts under Article 56 of the National Land Planning and Utilization Act;

m. Law

Article 36 (Designation of Special-Purpose Areas)

(1) The Minister of Construction and Transportation or the Mayor/Do governor shall determine the designation or alteration of specific use areas falling under any of the following subparagraphs by an urban management

1. Urban area: To be designated under the category falling under one of the following items:

(d) Green area; Areas in need of conservation of green areas in order to protect natural environment, farmland and forests, health and sanitation, safety, and to prevent any disorderly expansion of cities;

(2) The Minister of Construction and Transportation or the Mayor/Do governor may subdivide and designate again the specific-use areas under each subparagraph of paragraph (1) as the determination of urban management planning, under the conditions as prescribed by Presidential Decree

Article 56 (Permission for Development Acts) (1) Any person who intends to do an act falling under any of the following subparagraphs and prescribed by Presidential Decree (hereinafter referred to as "development act") shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun (hereinafter referred to as "permission for development acts"): Provided, That this shall not apply to cases of urban planning projects:

2. Alteration of the form and quality of land (excluding the alteration of the form and quality of land for farming);

Article 58 (Standards for Permission for Development Acts) (1) The Special Metropolitan City Mayor, Metropolitan City Mayors, or the head of a Si/Gun shall grant permission for development activities only when the details of application for permission for development activities meet the following standards

1. To meet the scale of development acts prescribed by the Presidential Decree taking into account special-use areas;

2. Not to be contrary to the contents of urban management planning;

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

4. To achieve harmony with the actual utilization condition or land use plan of neighboring areas, the height of buildings, gradient of land, status of trees, drainage of water, drainage of river, lake and marsh, wetlands, etc.;

5. To properly make plans for installing the infrastructure following the relevant development acts, or securing the sites required therefor.

(3) Detailed matters necessary for standards for permission for development activities shall be prescribed by Presidential Decree.

【Enforcement Decree of the Act

The Minister of Construction and Transportation or a Mayor/Do Governor may subdivide and designate a residential area, commercial area, industrial area and green area as follows according to the determination of an urban management plan pursuant to Article 36 (2) of the Act, according to the determination of an urban management plan:

4. Green area:

(c) Natural green belt area: Area requiring the preservation for the purpose of a security of green belt space, prevention of city's expansion, supply of future city sites, etc., wherein restrictive developments are allowed for only the inevitable cases.

Article 51 (Acts Subject to Permission for Development Acts) Acts subject to permission for development acts pursuant to the provisions of Article 56 (1) of the Act shall be as follows:

3. Changing the form and quality of land: Changing the form and quality of land by cutting, filling, leveling, paving, etc. and reclaiming public waters (excluding changing the form and quality of land for farming);

(1) The term "scale of development activities prescribed by Presidential Decree" in Article 58 (1) 1 of the Act means the area that changes the form and quality of land falling under any of the following subparagraphs. The proviso of the same shall be omitted:

1. Urban area:

(a) Residential areas, commercial areas, natural green areas, and green production areas: Not more than 10,00§³;

(4) In the application of the provisions of paragraphs (1) and (2), where a green area, control area, agricultural and forest area, or natural environment conservation area is developed or has been developed in part on several occasions, such area shall be deemed as one development act and shall be calculated (Ban omitted).

(5) The provisions of paragraph (4) shall not apply to any of the following cases:

1. Where the requirements falling under any of the following items are met: Provided, That where the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of a Si/Gun deems it unreasonable to apply the following requirements due to regional conditions, such requirements may be mitigated after deliberation by the local

(a) Land subject to a permission for development activities shall be divided into another land where development activities are completed, or where development activities are under way or scheduled by permission for development activities, etc., and a national expressway, general national highway, or road, river, park, etc. with a width of at least

(b) Approach road to the lands subject to a permission of development acts shall be not less than 8m wide, and directly connected with the main arterial roads or the roads under Article 11 of the Road Act (excluding the express national highways); and

2. Where the land subject to permission for development activities is located in a natural settlement district, development promotion district, or amusement district;

3. Case where intending to construct the Class グ neighborhood living facilities or housing (excluding the housing subject to an approval of project plans under Article 16 of the Housing Act) on the lands subject to a permission of development acts; and

(c) Fact of recognition;

(1) On September 16, 2002, the Plaintiff constructed a gas charging station on a size of 698 square meters in the Daejeon Sung-dong, Seosan-dong, Daejeon, a natural green area, with a building permit from the Defendant on September 16, 2002, in order to establish a place of business for general high-pressure gas manufacturing business.

(2) Meanwhile, the Defendant already permitted each development act on the aggregate of ① 7,126 square meters of the land 705 square meters (automobile-related facilities) located in the vicinity of the instant application site and ② the land outside 693-3 and 3 lots of land (the surrounding land of this case shall be indicated as the lot number only in the case of the surrounding land of this case) 6,312 square meters of land located in the vicinity of the instant application site.

(3) As seen in the separate sheet, land 693-3, 695, 696, and 702 is connected to a group of land, and the said 702 land is connected to the said 705 land, and the said 705 land is again connected to the instant application (Provided, That there is 697 land between the instant application site and the land outside 693-3 and the instant application site and 693-3 land are not directly connected to the instant application site).

(4) Between the instant application site or 698 land and 705 land and 693-3 and 3 lots of land, there are no topographical features, such as roads, rivers, parks, etc., and there are no roads directly connected to the instant application site.

(5) On June 2004, before the instant disposition, the Defendant applied for a building permit to build a 505 child care center on the land located near the instant application site, which is located in the natural green area near the instant application site, notwithstanding the limit of the development permit (10,00 square meters) prescribed by the Act, but is currently being newly constructed by granting the permit despite the above limit of the development permit (10,000 square meters). The said building permit was pointed out by the auditor as the error of permission was pointed out

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 3 through 7, 9, 10, 11, Gap's evidence 12, 13-1, 2, 3, Eul's evidence 2-1 through 24, and the purport of the whole pleadings.

D. Determination

(1) Judgment on the misapprehension of legal principles

(A) The issues of this part

Although the instant application and the instant plot of land do not directly adjoin the land and 693-3 and 3 lots of land, in light of the topographical conditions and utilization relationship of the land, the land, which is the land of this case, shall be deemed to be connected with all. In addition, even if the development area of 698-1 and 693-3, 695, 696, 702, and 705 square meters according to the instant application and the Plaintiff already combines the development area of 879 square meters according to the instant application with the area of 698 square meters and the area of 814 square meters, which is the limit of the development permission, does not exceed 10,00 square meters. However, even if all the development areas of each of the instant parcels of land, including the instant application site, are added up, it is clear

Meanwhile, as seen earlier, comprehensively taking account of the provisions of Article 58(1), Article 55(1)1, and Article 55(4) of the Enforcement Decree of the Act, development activities in the natural green area shall not exceed 10,000 square meters of land form and quality alteration. In this case, where development activities in the natural green area are developed adjacent thereto or developed over several occasions, such development activities shall be deemed as one development activity, and the area shall

Therefore, in the development of land physically connected, even if the subject of the development act is different from the subject of the development act, the issue of whether the development act should be regarded as the connected development is the subject of this part.

(B) Whether the subject of development activities constitutes a connected development, if any;

(5) In light of the fact that the subject of development permission is different from the one of the former Enforcement Decree of the Housing Act on the ground that the former is not subject to the provisions of Article 5 (4) of the Enforcement Decree of the Act on the ground that the former is not subject to the same development permission, and thus, it is likely that the former may be subject to the restriction on the development activities. As a result, if the former is to calculate the restriction area pursuant to the provisions of Article 55 (1) of the Enforcement Decree of the Act on the development activities within the nature green belt of the urban area, the latter is not in line with the purpose of the Act on the efficient utilization, development, and conservation of the national land, but the latter is likely to circumvent the provisions of the Act on the designation of green areas for the protection of the natural environment, farmland, and forests within the urban area, health, sanitation, and security, and the prevention of any disorderly expansion of the development activities, the latter is difficult to achieve the total quantity of the development permission, and the latter is not subject to the restriction on the development activities beyond the latter’s physical condition.

Therefore, in determining whether the application of this case exceeds the limit of permission for development activities (10,000 square meters) under the Act and its Enforcement Decree, the disposition of this case under the same premise is legitimate, and therefore, the plaintiff's assertion on this part is without merit.

(2) Determination on the assertion of violation of the principle of trust protection

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, that the public opinion statement of the administrative agency is justifiable and trusted, there is no cause attributable to the individual, third, that individual should have trusted the opinion statement of the administrative agency, and third, that administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the opinion statement, thereby infringing on the interests of the individual who trusted the opinion statement. Lastly, when taking an administrative disposition in accordance with the above opinion statement, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2001Du10851, Jul. 11, 2003, etc.).

On January 14, 2005, which was before the disposition of this case, the defendant issued permission to change high-pressure gas production with the content of "in addition of treatment and storage capacity" to the plaintiff on January 14, 2005. However, even if the defendant issued the above permission to the plaintiff, it does not necessarily permit the application of this case even if it is in violation of the relevant Acts and subordinate statutes, and the permission of construction act should be subject to regulation individually in accordance with the relevant Acts and subordinate statutes. Thus, the ground that the defendant issued the above permission to the plaintiff cannot be deemed to have expressed the public opinion that the plaintiff would cause the construction permit of this case to the plaintiff on the site of this case. If the plaintiff trusted that the construction permit of this case would have been obtained from the defendant with the above permission to change high-pressure gas production (pre-payment) as a matter of course, it cannot be deemed that such trust of the plaintiff was negligent (Supreme Court Decision 2004Du682, 68396 Decided November 25, 2005).

Therefore, this part of the plaintiffs' assertion is without merit.

(3) Determination on the assertion of violation of the principle of equality

In exercising discretionary power, the principle of equality under the Constitution is clear, but if the legal situation of the administrative agency is not the same, or if the existing administrative practice is not legitimate and reasonable, the administrative agency is not bound by the existing administrative disposition. In addition, there is a clear reason to dispose of the new administrative practice, unlike precedents, and the reason is able to maintain the legal stability of the existing administrative practice, and if the new administrative disposition is expected to be applied equally in all new cases in the future, it should be treated differently from the previous administrative practice.

According to the above facts, with respect to the application for a building permit to build a "nuri child care center" on the 505 land located near the place of the application of this case at the end of June 2004, which is a natural green area located near the place of the application of this case, the fact that the application was permitted despite the excess of the development activity restriction area under the Act and the Enforcement Decree thereof, but it is not bound by the defendant's permission for the application of this case. Further, considering the fact that the above building permit was erroneously permitted and was pointed out in the auditor, and the person in charge of the above construction permit was punished before the disposition of this case, it is difficult to view that the defendant's disposition of this case was unlawful in violation of the principle of equality.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

[Attachment Form Omission]

Judges Kim Chang-suk (Presiding Judge)