[1] Whether the requirements for permission for development activities under Article 56(1) of the National Land Planning and Utilization Act fall under the discretionary jurisdiction of an administrative agency (affirmative)

[2] The validity of administrative rules and the standard for determining whether a disposition based on administrative rules is legitimate

[3] In the case of administrative rules concerning matters within the discretion of an administrative agency, whether the court shall respect such matters (affirmative in principle)

[4] Whether a new ground for disposition is added or modified in an appeal litigation, where only a ground for disposition is added or modified within the scope that does not change a specific fact presented by an administrative agency at the time of disposition, or where it is merely an expression of the ground for the original disposition (negative)

[5] In a case where an administrative agency rendered a rejection disposition against an application for permission for development activities by stating only the fact that the administrative agency failed to meet the statutory permission criteria as an indefinite concept, whether the administrative agency should specify the grounds for disposition in the litigation procedure (affirmative), and whether the plaintiff who disputes the validity of the disposition of refusal of permission for development activities is required to submit additional arguments and materials to clarify the illegality of deviation from and abuse of discretionary power (affirmative)

[1] Articles 56 (1) and 58 (1) of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [3] Article 95 of the Constitution / [4] Article 27 of the Administrative Litigation Act / [5] Articles 56 (1) and 58 (1) of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act / [2]

[1] Supreme Court Decision 2016Du55490 Decided March 15, 2017 (Gong2017Sang, 778) / [2] Supreme Court Decision 2017Du3874 Decided July 11, 2019 (Gong2019Ha, 1567) / [3] Supreme Court Decision 2017Du4319 Decided January 10, 2019 (Gong2019Sang, 474) / [4] Supreme Court Decision 2005Du1046 Decided October 13, 2006, Supreme Court Decision 2007Du13791, 13807 (Gong208Sang, 4629) Decided February 28, 2008; Supreme Court Decision 2007Du4579 decided May 29, 2017

Han-Energy Co., Ltd. (Law Firm Hosung, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Yangyang-gun (Attorney Seo-woo, Counsel for the defendant-appellant)

Seoul High Court Decision 2018Nu1416 decided November 18, 2019

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

The grounds of appeal are examined.

1. Case summary

According to the reasoning of the lower judgment and the reasoning of the first instance judgment as cited by the lower court, the following circumstances are revealed.

A. On December 8, 2017, the Plaintiff filed an application with the Defendant for permission to engage in development activities under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) in order to install solar power infrastructure on the aggregate of 8,126 square meters of forests and fields ( Address 1 omitted) and 17,703 square meters of forests and fields ( Address 2 omitted) 20,470 square meters of forests and fields (hereinafter “instant project site”) 25,829 square meters of forest land (hereinafter “instant project site”).

B. On June 1, 2018, the Defendant issued a disposition of refusal against the Plaintiff on the ground that “the instant project site goes against Article 6(1)1 of the former Guidelines for Operation of Permission for Development of Yangyang-gun (amended by the Rules No. 216, Jan. 29, 2019; hereinafter the same shall apply) at least within 100 meters from the motorway 65 lines and Leedo (Do)” (hereinafter “instant Disposition”).

C. The Plaintiff filed the instant lawsuit seeking the revocation of the instant disposition, and the Defendant asserted that the instant disposition is lawful, since the installation of solar power infrastructure in the instant project site is damaged by the installation of solar power infrastructure in the litigation proceedings, prejudice the surrounding landscape, and traffic problems may arise due to the driver’s visual phenomenon.

2. The judgment of the court below

The lower court determined that the instant disposition was unlawful on the following grounds.

A. “Grounds for the initial disposition” presented by the Defendant while rendering the instant disposition is in conflict with the instant guidelines provisions, and the instant guidelines provisions merely conflict with administrative rules that have no external binding force, and cannot be deemed a legitimate ground for refusal of permission for development activities.

B. The concerns about forest destruction, surrounding landscape impairment, and traffic obstruction, which are the grounds for disposition additionally asserted by the defendant in the litigation procedure, cannot be said to be identical with the original grounds for disposition and the basic facts, thus the addition of the grounds for disposition is prohibited.

3. Determination on grounds of appeal Nos. 1 and 2

A. Relevant legal principles

1) The criteria for permission for development activities under Article 56(1) of the National Land Planning and Utilization Act are many parts of the criteria for permission and prohibition as indefinite concepts, and thus, whether the requirements are satisfied is the discretionary jurisdiction of an administrative agency. In particular, when examining whether the administrative agency’s permission for development activities likely to damage or pollute the environment, it shall be carefully determined by taking into account the legislative purport of various regulations on the balance of rights and interests and the protection of environmental rights among interested parties with interests contrary to the specific regional conditions, such as the actual use of land and living environment of the relevant local residents, and various regulations regarding the protection of rights and interests among interested parties, such as living environment, etc. In determining whether the administrative agency’s discretion on the requirements that need to forecast the current uncertain situation and ripple effect, such as “prevention of environmental pollution,” is desirable to respect them unless there are circumstances such as where the content is considerably lacking rationality or it is clearly contrary to the principle of equity or proportionality (see, e.g., Supreme Court Decision 2016Du5490, Mar. 15, 201

2) “Administrative rules” which a superior administrative agency provides for work process guidelines or standards for statutory interpretation and application to public officials under its jurisdiction or subordinate administrative agencies are generally effective only within the administrative organization and have no external binding effect. A disposition is not immediately unlawful solely on the ground that it violates administrative rules, but its legality is not guaranteed solely on the ground that the disposition is in accordance with administrative rules. Whether the disposition is legitimate ought to be determined not on the basis of whether it conforms to administrative rules, but on the basis of whether it conforms to the Constitution, the laws and regulations binding externally, the legislative purpose, and the general principles of the law, such as the principle of proportionality and equality (see, e.g., Supreme Court Decision 2017Du3874, Jul. 11, 2019).

Unless there are special circumstances, such as lack of objective rationality, when administrative rules relate to matters falling under the discretion of the administrative agency that prescribed the administrative rules, the court is desirable to respect them (see Supreme Court Decision 2017Du43319, Jan. 10, 2019).

B. Legal nature of the instant guidance provision

1) Article 58(1)4 and (3) of the National Land Planning and Utilization Act provides that permission for development activities shall be granted only when the details of an application for permission for development activities meet the standards that “to achieve harmony with the surrounding environment or scenery, such as the actual status of land use in surrounding areas or a land use plan, height of buildings, gradient and status of land, trees, water drainage, water drainage, and drainage of river, lake and marsh, wetlands, etc.” The criteria for permission for development activities are prescribed by Presidential Decree in consideration of regional characteristics, regional development

Article 56(1) [Attachment 1-2] subparag. 1(d)(1) and (2) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 28521, Dec. 29, 2017; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”) on the delegation thereof provides that “The building or structure constructed or installed by the development act does not damage the surrounding natural scenery and aesthetic view, and its height, form and color shall be in harmony with the surrounding building; if a landscape plan is formulated by an urban or Gun plan, it shall be appropriate; and “No environmental pollution, water pollution, soil pollution, noise, vibration, vibration, vibration, etc. shall occur in the relevant area and its surrounding area” and Article 56(4) of the Enforcement Decree of the National Land Planning and Utilization Act provides that “The Minister of Land, Infrastructure and Transport may determine detailed review standards for the permission standards for development activities under paragraph (1).”

Accordingly, the former Guidelines for Operation of Permission for Development Activities (amended by Ministry of Land, Infrastructure and Transport Directive No. 997, Apr. 18, 2018; hereinafter the same shall apply) established by the Minister of Land, Infrastructure and Transport may prepare urban or Gun planning ordinance within the scope delegated or prescribed by the National Land Planning Act, or prepare and operate a separate guidelines within the scope prescribed by the statutes and these guidelines (1-2-2). In applying the criteria for permission for development activities, in consideration of regional characteristics, detailed standards for height, distance, allocation, scope, etc. can be determined (3-2-6(3)) after consultation with the local

Accordingly, among the guidelines for operating development activities of Yangyang-gun as determined by the Defendant, the instant guidelines stipulate that “the instant guidelines shall not be located within 100 meters from a two-lane or more packaged road” as a detailed criteria for permission for development activities of Yangyang-gun.

2) Article 56(1) [Attachment 1-2] of the former Enforcement Decree of the National Land Planning and Utilization Act constitutes an external binding legal order established by delegation under Article 58(3) of the National Land Planning and Utilization Act. However, Article 56(4) of the former Enforcement Decree of the National Land Planning and Utilization Act only provides that “detailed review criteria” for the criteria for permission of development prescribed in Article 56(1) [Attachment 1-2] may be set by the Minister of Land, Infrastructure and Transport. Accordingly, the former guidelines for permission of development prescribed by the Minister of Land, Infrastructure and Transport are merely the detailed review basis date, not itself a legally binding norm, and it is deemed that the Minister of Land, Infrastructure and Transport, a superior administrative agency, set the detailed criteria for the interpretation and application of the criteria for permission of development prescribed in the National Land Planning and Utilization Act in relation to permission of development

The management guidelines for permission for development activities of Yangyang-gun determined by the Defendant are also detailed review guidelines for permission for development activities formulated separately by the Defendant, who is the permission authority for development activities, to operate the development permission system within the scope of related statutes and guidelines for the operation of the former development permission system. In light of the form and content thereof, it is merely an internal administrative rules or discretionary rules inside the Defendant, and there is no external binding force

3) Meanwhile, considering the problems of environmental damage that may cause solar power generation facilities and the geographical and environmental characteristics of the Yangyang group, the instant provision can be deemed as embodying the criteria for permission to engage in development activities under the National Land Planning Act and subordinate statutes so as not to be in harmony with the surrounding environment or scenery and not to cause any environmental pollution, ecosystem destruction or danger, etc., and it cannot be deemed as contrary to the National Land Planning Act and subordinate statutes or lack of objective rationality (see Supreme Court Decision 2018Du40744, Oct. 17, 2019).

C. Determination on the instant case

1) Although the instant disposition was made in accordance with the instant guidelines provisions, the instant guidelines provisions do not have external binding force. Therefore, whether the instant disposition is legitimate ought to be determined based on whether it conforms to the criteria for permission for development activities and the principle of proportionality and equality as stipulated in the national land planning statutes and the general principles of the same Act

2) Nevertheless, the lower court determined that the instant disposition was unlawful without entirely examining and determining whether the instant provision goes against the instant guidelines provisions merely because it merely constitutes an administrative rule with no external binding force. In so doing, the lower court did not err by misapprehending the legal doctrine on permission for development activities and the validity of administrative rules under the National Land Planning and Utilization Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Judgment on the third ground for appeal

A. Relevant legal principles

1) In an appeal litigation, from the perspective of substantive rule of law and trust protection for the people who are the other party to the administrative disposition, the competent administrative agency’s assertion as a ground for disposition is not allowed on the ground of a separate fact that is not recognized as identical in the basic factual basis of the original disposition. The existence of the factual basis here is determined depending on whether the social factual basis, which is the basis of the disposition, is identical in the basic point of view, based on the specific facts prior to the legal evaluation of the ground for disposition (see, e.g., Supreme Court Decision 2005Du10446, Oct. 13, 2006). However, in cases where only the basis of the disposition is added, modified, or specifically indicated in the original disposition to the extent that it does not change the specific facts presented at the time of the disposition, it cannot be deemed that the new ground for disposition is added or modified (see, e.g., Supreme Court Decision 2007Du13791, Feb. 28, 2008).

2) If an administrative agency’s disposition of refusal against an application for permission for development activities briefs the purport that the application does not meet the statutory requirements for permission under the indefinite concept, the administrative agency should set forth the grounds for disposition by presenting the basis or materials for such determination in the litigation proceedings. The plaintiff who disputes the validity of the disposition of refusal of permission for development activities, which is a discretionary act, needs to make an additional argument and submit materials in the litigation in order to clarify the specific judgment and grounds presented by the administrative agency that there is an error of deviation or abuse of discretion (see Supreme Court Decision 2018Du49796, Dec. 27, 2018).

B. Determination on the instant case

1) As seen earlier, although the instant provision is merely an administrative rule that has no external binding force, it can be deemed that the standard for permission to engage in development activities, such as “to ensure harmony without damaging the surrounding natural scenery and aesthetic view,” and “to ensure that there is no risk of causing any environmental pollution, ecosystem destruction, danger and injury, etc.,” as prescribed in Article 56(1) [Attachment 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act, should be determined depending on whether it conforms to the provisions of the superior law, etc.

2) In the instant disposition, the Defendant presented the reason that “the Plaintiff’s project plan to implement is in conflict with the instant guidelines provisions,” and in the instant litigation procedure, the Defendant asserted that “it is likely that the forest might be damaged by the installation of solar power infrastructure in the instant project site, prejudice its surrounding landscape, and hamper the traffic by generating snow heart phenomenon,” but it is not an additional assertion of the new reason for disposition, but merely an explanation of the initial reason for disposition specifically.

3) If so, the lower court should have deliberated and determined whether the grounds for the disposition specifically presented by the Defendant in the instant litigation procedure, namely, whether the damage to forests, prejudice to surrounding scenery, traffic, etc. may actually occur when developing activities are conducted in accordance with the Plaintiff’s business plan.

4) Nevertheless, the lower court determined that the Defendant’s assertion in the lawsuit is not allowed as an addition of the grounds for disposition for which the identity of the original and basic factual relations is not recognized. In so determining, the lower court erred by misapprehending the legal doctrine on addition and modification of the grounds for disposition, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds for appeal

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Noh Jeong-hee (Presiding Justice)