Ministry of Environment (Law Firm Barun Law, Attorneys Jeong Jong-ju et al., Counsel for the defendant-appellant)

ancient Gun;

Korea Rural Community Corporation (Law Firm Rocom, Attorneys Choi Chang-soo, Counsel for defendant-appellant)

September 4, 2014

1. On November 14, 2013, the Defendant’s disposition rejecting an application for permission for development activities rendered against the Plaintiff is revoked.

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

The same shall apply to the order.

1. Basic facts

A. Plaintiff’s first permission for development activities and withdrawal thereof

Around September 2012, the Plaintiff is the owner of the area of 327,626m2 (hereinafter “instant maintenance”). Around September 2012, the Plaintiff established a business plan with a capacity of 25mW for the maintenance of the instant facilities installed in the electric power market to produce and supply electricity of 31,025,00KWW. On December 26, 2012, the Plaintiff defective an application for permission to engage in the development of the instant maintenance (hereinafter “previous application”) to the Defendant on December 26, 2012, and the Defendant requested the Intervenor’s Intervenor (hereinafter “Supplementary Intervenor”) for consultation on the use of the instant facilities for the purpose other than the purpose of the maintenance pursuant to Article 61(1)4 and (3) of the National Land Planning and Utilization Act.

On January 23, 2013, the Intervenor respondeded to the Defendant on January 23, 2013, that “if a solar power plant is installed within the maintenance of this Article, a civil petition filed by the cultivated farmer is vacant due to the aggravation of flood damage and it is anticipated to hinder the good protection and management of farmland and agricultural infrastructure, so it is impossible to install a water-based solar power plant in the water surface.” On February 14, 2013, the Intervenor notified the Defendant of the same content as the request.

On February 25, 2013, the Plaintiff voluntarily withdrawn the application for permission for development activities.

B. Plaintiff’s secondary permission for development activities

When the Plaintiff installs solar power infrastructure to the ○○ University for the maintenance of the water of this case, he/she requested the repair review of the speed, flow, water level change in the vicinity of the project district before and after the installation of the foregoing, and the impact on the surrounding flat view, etc., and received the repair review report. On June 7, 2013, the Plaintiff filed an application with the Defendant for permission to engage in the development of the maintenance of this case (hereinafter “application of this case”).

Accordingly, on June 24, 2013, the Defendant requested the Intervenor to consult on approval for use of the instant infrastructure for the purpose other than the purpose of maintaining the instant case, and the Intervenor respondeded to the Defendant on June 24, 2013, stating that “The subject of installation of hydro-solar power infrastructure is the site of the Bosaul tide embankment, which is an agricultural infrastructure under Article 18 of the Rearrangement of Agricultural and Fishing Villages Act, and if the installation of hydro-solar power infrastructure is anticipated to interfere with the original purpose

On the other hand, on September 16, 2013, the Defendant requested the Do Urban Planning Committee to deliberate on the request. On October 2, 2013, the Do governor held a meeting for consultation with the Plaintiff and the Intervenor on the ground that “The Defendant did not consult with the head of the relevant administrative agency pursuant to Article 61(3) of the National Land Planning and Utilization Act (the Defendant’s Intervenor, the Yeongsan River Basin Environmental Office, and the prior examination of factors influencing disasters, etc.) and the result of the consultation is unclear.”

On October 18, 2013, the supplementary intervenor notified the Defendant of the non-approval of the use of agricultural infrastructure for the purpose other than the original purpose.

C. The defendant's rejection disposition against the motion of this case

On November 14, 2013, the Defendant rendered a notification of rejection of the application for permission of development activities (hereinafter “instant disposition”) to the Plaintiff on the following grounds.

A. The National Land Planning and Utilization Act provides that approval for use of agricultural infrastructure for purposes other than those of agricultural infrastructure under Article 23 of the Rearrangement of Agricultural and Fishing Villages Act shall be obtained pursuant to Article 61(1)4 of the National Land Planning and Utilization Act. B. As a result of consultation with the Korea Rural Community Corporation, there was an opinion that approval for use of agricultural infrastructure for purposes other than those of agricultural infrastructure was not granted, and as a result, the request was made by the Do Urban Planning Commission for deliberation by the Committee on Urban Planning of Jeonnam-do, which made a reply to our Gun that the requirements for deliberation cannot be presented because the non-approval for use of agricultural infrastructure for the purpose other than the purpose of agricultural infrastructure of the Korea Rural Community Corporation cannot be met. (c) As to the matters that are prescribed to obtain consultation (permission) in the relevant Act, permission for development activities without consultation are not possible, so it is inevitable to grant permission for development activities without permission under the provisions of Article 15(2) of the Civil Petitions Act

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 5 through 8, Eul evidence 1, 2, 4, and 5 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

In light of the following points, the instant disposition is unlawful and thus should be revoked.

(i) is not an agricultural infrastructure;

Although the maintenance of this case is located within the inner part of the celeical tide embankment as follows, it is only the land owned, occupied, and managed by the previous owners and the plaintiff in order, and cannot be viewed as agricultural infrastructure. Therefore, the matters concerning the permission for the development of the maintenance of this case do not require the defendant to consult with the supplementary intervenor.

① The instant maintenance is not a land established as a result of an agricultural infrastructure development and expansion project, nor a land used for farmland conservation or agricultural production.

(2) Although a universal tide embankment may constitute agricultural infrastructure, it shall not be deemed agricultural infrastructure solely on the ground that the maintenance of the relevant case is located in a universal tide embankment.

(3) Even if the maintenance of a tide embankment falls under an accessory to a tide embankment under subparagraph 3 of Article 2 of the Embankment Management Act, the maintenance of this case is not a tide embankment attached to a tide embankment, and since the facilities and ancillary facilities of a tide embankment under subparagraph 6 of Article 2 of the Rearrangement of Agricultural and Fishing Villages Act are structures, it is not a structure, but a structure for a tide embankment or a structure for a tide embankment and its ancillary facilities. Therefore, the same land as the maintenance

④ The maintenance of the instant case was owned and managed by the previous owners as a site for inland fisheries (a fish farm) or as a result, by collecting sand or straws, and the land category was also miscellaneous, and was changed to the maintenance upon the request of the owners at the time of April 1986. The maintenance of the instant case was not incorporated into agricultural infrastructure by a project for installing a stove embankment, and there was no fact that it was thereafter incorporated into agricultural infrastructure.

⑤ From December 10, 197 to December 30, 1994, the farmland improvement project was conducted on the farmland located in the Seoul Special Metropolitan City, Seoul Special Metropolitan City (Seoul Special Metropolitan City), and at the time, the said farmland improvement project was not included in the farmland improvement project. However, after the construction of reinforcement of the height of the bank, the maintenance of the instant farmland was carried out in water, and the assistant intervenor asserts that the maintenance of the instant case was the agricultural infrastructure.

2) The supplementary intervenor is not the authorized administrator of the maintenance of the instant case

Even if the maintenance of the instant case constitutes an agricultural infrastructure, a supplementary participant should be registered under Article 17 of the Rearrangement of Agricultural and Fishing Villages Act in order for the supplementary participant to be a manager of agricultural infrastructure pursuant to Article 16 of the Rearrangement of Agricultural and Fishing Villages Act.

However, the business entity was not a subsidiary intervenor or the State or a local government as a corporation for the Bosung interest business, and the land owner did not request the supplementary intervenor to acquire the management right. Also, the registration of agricultural infrastructure was made only after the plaintiff filed the previous application.

Therefore, the supplementary intervenor cannot become a party to the consultation on the permission for development of the maintenance of this case.

3) The comments of the Intervenor do not have the binding force against the Defendant.

In the National Land Planning and Utilization Act, when the head of a Gun grants permission for development activities, the meaning of the provision that the head of the relevant administrative agency should consult with the head of the Gun does not require the disposition in accordance with the opinion. Thus, the defendant is sufficient to have gone through the consultation procedure with the intervenor, and the defendant may take other measures without being bound by the intervenor's opinion.

4) The Intervenor’s opinion is unreasonable.

According to the results of the mother examination of ○○ University, even if solar power infrastructure is installed on the water in the maintenance of the instant case, it does not interfere with the maintenance of the water tank, the original purpose of the water tank, the use of the water tank, or the good protection and management of the Intervenor. If solar power infrastructure in the instant case is installed, the supplementary intervenor repeats only the reply that the original purpose and use of the agricultural infrastructure is anticipated to be hindered and to a certain degree of interference with the use of the agricultural infrastructure, such as the universal tide embankment, without mentioning any interference with the original purpose and use of the infrastructure, and therefore, it is difficult to recognize the legitimacy of the non-approval of use. In addition, it is difficult to recognize the legitimacy of the non-approval of use. In addition, repeated arguments against the maintenance of other reservoirs without specific grounds only for the instant maintenance violates the principle of equity.

5) A disposition that does not undergo any deliberation by the urban planning committee may not be a ground for the disposition of this case.

Article 59(1) of the National Land Planning and Utilization Act only stipulates that a consultation with the head of a relevant administrative agency shall undergo deliberation by the Urban Planning Committee in order to consult with the head of the relevant administrative agency, and does not stipulate that deliberation by the Urban Planning Committee is possible only when an agreement has been reached with the head of the relevant administrative agency after completing consultation with the head of the relevant administrative agency. In addition, a consultation with the head of the relevant administrative agency does not require consultation with the purport that permission for development activities is subject to consultation or gathering of opinions from the head of the relevant administrative agency. Thus, the Daranam-do Urban Planning Committee should have accepted the defendant's request for deliberation and should have deliberated at least on the condition of consultation. This is illegal and unfair since no deliberation or consultation procedure by the Urban Planning Committee is bound by the deliberation and consultation procedure, and it is merely an internal administrative affairs procedure, and thus, it cannot be a legitimate requirement for the relevant administrative disposition. In this case, the failure of deliberation by the Urban Planning Committee is not attributable to the plaintiff, but is in accordance with mistake of facts and misapprehension of legal principles.

6) A disposition that deviates from or abused discretionary authority

In light of the above circumstances and the fact that the maintenance of this case is an individual’s private land and the previous owner used as a site for fish farm or occupied and used sand, and that the application of this case is highly valuable for public interest in view of the stable supply of energy, environment-friendly conversion of energy structure, new and renewable energy industry promotion policies, and that most neighboring residents agree with the installation of hydro-solar power infrastructure, etc., the Plaintiff’s private interest and public interest in the policy for fostering new and renewable energy industry, which may be infringed on the instant disposition, are much larger than the interests of the assistant intervenors that may be infringed upon by granting permission of this case. Accordingly, the instant disposition deviates from and abused discretionary power over development permission.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

3. Whether the instant disposition is lawful

(a) Facts of recognition;

1) At around 1934, 1934, the Bossung was commenced and completed around 1937. On December 28, 1966, the Minister of Agriculture and Forestry decided to be a state-managed tide embankment with the Ministry of Agriculture and Forestry’s notification No. 1593 on December 28, 196, and designated the Bossung Land Improvement Cooperatives (Assistant’s telegraph transfer) as a state-managed agent.

2) The instant maintenance is the land divided from the land (number 1 omitted), which is the land that was registered on March 14, 1939, which was the land categoryed in March 14, 1939, which was the land registered on February 8, 1939, and the land owner’s boundarying business.

On April 24, 1986, the registration of change of the indication was completed following the registration of change of the land category of 486,577 square meters in miscellaneous land (number 1 omitted) on April 24, 1986, as well as (number 1 omitted) 436,835 square meters in maintenance (number 2 omitted) through (number 3 omitted). The registration of change of indication was completed on October 26, 201 in the above (number 1 omitted) 436,835 square meters in maintenance (number 1 omitted). The registration of change of indication was divided into 109,209 square meters in maintenance (number 1 omitted) and 327,626 square meters in maintenance (number 4 omitted). The registration of change was completed on October 26, 2012.

3) The Bosung Farmland Improvement Association (the telegraph of the assistant branch) implemented the farmland improvement project (including the arable rearrangement project and the removal thereof) with respect to the farmland, etc. located on the outside of the bank located on the side of the bank, as shown in the attached Table 1, from December 10, 197 to December 30, 194, under the design and construction supervision of the Agricultural and Fishing Villages Development Corporation (the telegraph of the assistant branch), from December 10, 197 to December 30, 194. The maintenance project of this case, located on the outside of the bank, was carried out by the above farmland improvement project, to reinforce the height of the inside bank installed on the surface of the inland bank, the height of the inside bank located on the outside of the bank, as the result of the improvement project, was 2-3 meters high.

4) The instant maintenance has been used by the previous owners of the instant maintenance as a site for a fish farm, or by collecting sand or gyms, etc. before the instant maintenance was carried out duplicating water according to the construction project.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 18, 19, 21, Eul evidence Nos. 4, 5, and 8 and the purport of the whole pleadings

B. Determination

1) Whether the instant case is agricultural infrastructure

Article 2 subparagraph 6 of the Rearrangement of Agricultural and Fishing Villages Act provides that agricultural infrastructure is installed as a result of agricultural infrastructure development and expansion project or as other facilities for the use of underground water, such as reservoirs, pumping stations, and wells, such as drainage stations, irrigation reservoirs, irrigation channels, irrigation channels, drainage channels, irrigation channels, drainage channels, (maintenance) embankments, roads, tide embankments and embankments, and facilities incidental thereto, and agricultural facilities such as facilities for production, processing, storage and distribution of agricultural and fishery products. In addition, Article 2 of the Protection of Agricultural and Fishing Villages Act provides that tide embankments are installed as banks installed on the shore for agricultural purposes, and it refers to tide embankments, pumping boxes, water supply and other artificial structures attached to tide embankments with appurtenances to tide embankments.

However, since the defendant and the supplementary intervenor asserted that the maintenance of this case is an agricultural infrastructure created and registered by the completion of a universal tide embankment as a tide maintenance attached to a universal tide embankment, it would be problematic whether the maintenance of this case constitutes an agricultural infrastructure and whether it constitutes a tide maintenance attached to a tide embankment.

In light of the following circumstances revealed from the facts of recognition as above and the above, construction of a Bosung Embankment cannot be deemed as the agricultural infrastructure for the maintenance of the instant case as a tide maintenance attached to a tide embankment, and there is no evidence to acknowledge the fact that the instant maintenance was incorporated into an agricultural infrastructure. Accordingly, the maintenance of the instant case is not an agricultural infrastructure for the rearrangement of Agricultural and Fishing Villages Act.

① Although the instant maintenance is a land created as a result of the completion of a universal tide embankment, it is difficult to view it as the maintenance of a universal tide embankment solely on the ground that the land was created as a result of the completion of a universal tide embankment.

② Since 1934 to 1937, the construction of the Bosabide embankment was conducted from the 1934 to the 1937. The maintenance of this case was carried out by the farmland improvement project in this case, which straw up the water, and the previous owners used it as the site for inland fisheries or collected sand or sabs. Thus, it is difficult to view that the maintenance of this case had been maintained before the farmland improvement project in this case.

③ The land category of the instant maintenance was the miscellaneous land, and was changed to the maintenance around 1986.

④ Article 1593 of the Ministry of Agriculture and Forestry’s notification only can the fact that the maintenance of a universal tide embankment was publicly announced as a national tide embankment, and does not give notice that the maintenance of the instant case was included in the maintenance of a universal tide embankment, and alone, it is insufficient to recognize the fact that the maintenance of the instant case was included in the maintenance of a universal tide embankment, and there is no evidence to acknowledge otherwise.

2) Sub-determination

Since the maintenance of this case cannot be deemed as agricultural infrastructure, on the premise that it is subject to consultation with the supplementary intervenor, the disposition of this case which rejected permission for development on the grounds that the supplementary intervenor's non-approval for use for non-purpose other than the original purpose and the submission of deliberation by the Jeondo Urban Planning Committee is unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Park Gi-chul (Presiding Judge)