(영문) 수원지방법원 2009.12.10.선고 2009구합2628 판결

2. The Defendant’s disposition to authorize the implementation plan of the Ansan City Urban Planning Facility Project publicly notified in accordance with No. 2009 - 9 is revoked.

3. Of the costs of lawsuit, the part arising between the plaintiffs A, B, C, D, E, F, G, and H and the defendant is borne by the above plaintiffs, and the part arising between the plaintiffs except the above plaintiffs and the defendant is borne by the defendant.

Purport of claim

Paragraph 2 of this Article.

Reasons

1. Details of the disposition;

A. On April 28, 2001, the Governor of the Gyeonggi-do decided to revise the Ansan Urban Planning Act pursuant to Article 24 of the former Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002), and announced it as the Gyeonggi-do Public Notice No. 2001-64. The above public notice includes a decision on urban planning facilities (hereinafter referred to as the “decision on urban planning facilities of this case”) which newly establish urban planning facilities of 0,00 square meters in area of 0,000 square meters in area of 1,000,000 square meters in area of Masan-si, Ansan-si.

B. On November 14, 2005, pursuant to Article 30 of the former National Land Planning and Utilization Act (amended by Act No. 8564 of July 27, 2007), the Defendant made a decision to revise the Si/Do administration plan including a decision to alter the urban planning facility (hereinafter referred to as the "decision to alter the urban planning facility of this case") by reducing 0,000 square meters from the area of the above urban planning facility (a golf course) to 0,00,000, and changing it to the square meters of urban planning facility (hereinafter referred to as the "decision to alter the urban planning facility of this case"), and on November 21, 2005, the Defendant announced the amendment to the Si administration plan of this case to 05 - 114 of the Ansan City notification as of July 30, 2007, as of July 28, 2008 (hereinafter referred to as the "project operator of this case").

C. Since January 21, 2009, pursuant to Article 88 of the National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009; hereinafter referred to as the "Act"), the Defendant approved the implementation plan of the project of this case (hereinafter referred to as the "authorization disposition of this case") in accordance with the following contents, and publicly notified as the public notice No. 2009-9 of Ansan-si. At the time, I purchased approximately 74% of the land within the project execution district of this case.

(1) Location of the place of project site: An amount of 000 square meters per Ansan-dong, Ansan-si.

(2) Type and title of a project.

- Kind: An Ansan Urban Planning Facility Project (sports facilities: Golf course project)

-Name: [names for the development of consortiums]

(3) The name of the project operator: I.

(4) The area or scale of a project.

- Area: 0,000,000m

- Scale of business: 27 holess of golf courses (18 holes of membership, 9 holes of mass);

D. Plaintiff A, B, C, D, E, F, G, and H (hereinafter “Plaintiff A”) are residents living near the instant project implementation district, and the rest of the Plaintiffs, including Plaintiff J, etc. (hereinafter “Plaintiff J et al.”) are the owners of the land to be incorporated into the instant project implementation district.

[Ground of recognition] Gap evidence Nos. 1-3 and the purport of the whole pleading

2. Whether the lawsuit by the plaintiff A, etc. is legitimate

On the other hand, even a third party, who is not the direct other party to an administrative disposition, has a legal interest in seeking a lawsuit against the administrative disposition, standing to sue should be recognized if there is a legal interest in seeking a lawsuit against the administrative disposition. However, the legal interest in this context refers to a case where there is a direct and specific interest protected by the law based on the relevant disposition, and it does not include cases where the general public has a common interest, such as abstract, average, and general interest, indirectly or indirectly, or merely has a factual and economic interest as a result of protecting the public interest.

However, Article 90 of the Act provides for the opinion of the owners of land, buildings, etc. and interested parties in the gold implementation district and the implementation plan if their opinion is deemed reasonable, it does not provide for the protection of individual, direct, and specific interests of residents living in the vicinity of the project implementation district, such as the Plaintiff, etc., and there is no data to regard that the Plaintiff, etc. may infringe on any individual, direct, and specific interests due to the instant authorization disposition, and thus, the Plaintiff, etc.’s lawsuit by the Plaintiff, etc. is unlawful as it was filed by a person who has no standing to sue.

3. Whether the authorization or disposition of this case is legitimate

A. The plaintiff J et al.'s assertion

(1) Plaintiff J et al.’s assertion

The approval disposition of this case is granted the right to implement the project of this case, and at the same time, the project approval under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter "Public Works Act") is deemed to be granted the right to expropriate and use the land and building water within the project site. Thus, the approval disposition of this case, which is deemed to be project implementation, should be a premise for the public necessity. However, it is difficult to see that the project of this case is a membership golf course development project, and it is not effective to improve the number of people's health. The effects of regional economic development, such as promoting local residents' employment, are limited to two golf courses in advance, and the golf course is already created in neighboring Esposisi, Si, Gunpo, Ansan City, Ansan City, and Leecheon-si, etc., and thus, it is deemed to be unlawful as it does not considerably fall into the necessity of enforcing the project of this case, while the plaintiffs do not consent to the above public interest and discretion.

(2) The defendant's assertion

The project of this case is an urban planning facility project that determines and establishes a golf course belonging to the infrastructure as a sports facility by urban management planning, and the urban planning facility project aims to enhance public welfare and enhance the quality of life for the people, so it can be deemed that the public necessity exists. In addition, the decision of the urban planning facility project of this case and its modification at the stage of the decision of the urban planning facility project of this case and its modification, which has already been made public interest to enhance the status of tourism and resort city and revitalization of the regional economy as a tourism and resort city by creating a golf course in the Dolsan City located in the city where the landscape is good at the stage of the decision of the urban planning facility project of this case. In addition, Article 8(3) of the Act provides that the implementation plan should be authorized if the implementation plan prepared by the implementor of the urban planning facility project is determined to meet the standards for the determination, structure, and installation of urban planning facility project of Article 43(2) of the Act. Therefore, the implementation plan of this case has no choice but to authorize the implementation plan of this case.

(b) Related statutes;

As shown in the attached Form.

According to Article 88 (3) of the Act, the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, and the large city Mayor shall approve the implementation plan when the implementation plan prepared by the implementer of the urban planning facility project is deemed to meet the standards for the determination, structure, and installation of urban planning facilities pursuant to Article 43 (2) of the Act. However, according to Articles 91, 95 (1) and 96 of the Act, when the implementation plan is announced at the time of urban planning, the project approval under the Public Works Act is deemed to have been granted and the high market is deemed to have been established so that the implementer of the project can exercise the right to expropriate and use the land, buildings, etc. necessary for the project, and the project approval under Article 2 subparagraph 7 of the Public Works Act refers to the determination of the project to expropriate or use the land, etc. for the public project.

In full view of the purport of the relevant provisions, the authorization of an implementation plan for an urban planning facility project to which a project approval is granted under the Public Works Act is determined as a project to expropriate or expropriate land, etc. and form an act rather than a simple confirmation. Thus, even if it is examined as to whether an urban planning facility project needs to be implemented at the stage of the determination of urban development facilities, or if Article 8(3) of the Act satisfies the standards under Article 43(2) of the Act, the authorization of the implementation plan is required to be granted to the executor of the relevant project, the competent administrative agency should properly compare and bridge the interests of the persons related to the relevant project, such as private interests, etc. that are derived from the project, and even if there is a public interest, if there is a right to expropriate or use the land, etc. necessary for the relevant project, the competent administrative agency should make sure that the plan conforms to the principle of proportionality.

However, comprehensively taking account of the aforementioned evidence, Gap evidence, Eul evidence Nos. 2, 3, 5, Eul evidence Nos. 1-1 through 4, 2-1, and 2-2, the whole purport of the pleadings is as follows: (i) the project of this case is a business which intends to establish a golf course of 1200 square meters in a part of its members, 18 square meters, and 27 square meters in the public, as a sports facility; (ii) even though these membership-oriented golf course facilities are built into a large area of a site, a relatively small number of people, such as members and their accompanying persons, can only be used for health promotion and leisure use; (iii) it is necessary to establish a golf course in the existing area of the farmland and other similar facilities; and (iv) it is not necessary to establish a golf course in the existing area of the farmland and other adjacent facilities; and (iv) it is necessary to establish a golf course in the area of the farmland and other similar facilities in addition to the existing area of the Do.

There is no choice but to occur various environmental issues, such as water quality and soil contamination, and there is still doubt as to whether the project would assist the sound development of the national economy, such as the creation of jobs and the increase of tax water. ④ The defendant did not determine whether the project in this case is a public interest for the use of public water at the approval stage of the implementation plan for the project in this case, and even the "Osan Urban Planning Readjustment" which takes the public necessity as a material to review the determination of the urban planning facilities in this case and the modification thereof at the stage of the determination of the plan for the project in this case. However, in light of these various circumstances, it is difficult to view that the operator of the project in this case purchased approximately 75% of the land in the project in the implementation zone, and there is no other data to view that the public interest in this case is available.

Therefore, the instant authorization disposition was erroneous in failing to properly determine whether the interests of the persons related to the instant project have public interest for the public acceptance by properly comparing and bridgeing the interests of the persons, and thus, it cannot be deemed unlawful as it deviates from and abused discretionary power.

4. Conclusion

Therefore, the plaintiff A et al.'s lawsuit is illegal and dismissed, and the plaintiff J et al.'s claim is reasonable, so it is decided as per Disposition.

Judges

Judges subordinate to the presiding judge;

Judges Seo-dae et al.

Judges Immination

Site of separate sheet

Related Acts and subordinate statutes

former National Land Planning and Utilization Act (amended by Act No. 9442 of February 6, 2009)

Article 8 (Preparation, Authorization, etc. of Implementation Plans)

(1) Any implementer of an urban planning facility project shall draw up an implementation plan for the relevant urban planning facility project (hereinafter referred to as the "implementation plan") under the conditions as prescribed by the Presidential Decree.

(2) When an implementor of an urban planning facility project (excluding the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor and a Metropolitan City Mayor; hereafter the same shall apply in paragraph (3)) prepares an implementation plan pursuant to paragraph (1), he/she shall obtain authorization from the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor or the

(3) The Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or a large city Mayor shall authorize an implementation plan formulated by an implementer of an urban planning facility project to meet the standards, etc. for determination, structure, and installation of an urban planning facility project under Article 43 (2). In such cases, the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or a large city Mayor may authorize an implementation plan on the condition that such implementation plan shall take measures, such as the installation of infrastructure or the securing of sites necessary therefor, prevention of hazards, prevention of environmental pollution, landscaping, landscaping,

(5) An implementation plan shall specify or attach design documents, fund plans, execution period, and other matters prescribed by Presidential Decree necessary for implementing the project.

Article 90 (Perusal, etc. of Documents)

(1) The Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor or a large city Mayor shall, when he/she intends to authorize an implementation plan pursuant to Article 88 (3), announce it in advance, as prescribed by Presidential Decree, and make copies of relevant documents available for public perusal for at least 20 days.

(2) The owners or interested parties of land, buildings, etc. in an urban planning facility project zone may submit a written opinion to the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, the mayor of a large city or the implementer of an urban planning facility project within the inspection period determined under paragraph (1), and the Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor, the Mayor of a large city or the implementer of an urban planning facility project shall reflect their opinions in the implementation

Article 91 (Public Announcement of Implementation Plans)

The Minister of Land, Transport and Maritime Affairs, the Mayor/Do Governor or the Mayor of a large city shall prepare an implementation plan pursuant to Article 88.

If any approval or authorization has been granted, the contents thereof shall be publicly notified as prescribed by the Presidential Decree.

Article 95 (Expropriation and Use of Land, etc.)

(1) Any undertaker of an urban planning facility project may expropriate or use objects or rights falling under any of the following subparagraphs:

1. Land, buildings, or any goods fixed on such land;

2. Rights other than the ownership of land, buildings, or articles fixed on such land.

Article 96 (Application Mutatis Mutandis of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects)

(1) Except as otherwise provided for in this Act, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall apply mutatis mutandis to the expropriation and use provided for in Article 95.

(2) In applying mutatis mutandis the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor pursuant to paragraph (1), when an implementation plan is publicly announced pursuant to Article 91, it shall be deemed that the project has been approved and the public announcement thereof has been made pursuant to Articles 20 (1) and 22 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor: Provided, That an application for adjudication shall be filed within the implementation period of an urban planning facility project as determined by an implementation plan, notwithstanding Articles 23 (1) and 28 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor.

former National Land Planning and Utilization Act (amended by Act No. 8852 of February 29, 2008)

Article 86 (Implementers of Urban Planning Facility Projects)

(1) A Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun shall implement an urban planning facility project under his jurisdiction except as otherwise provided for in this Act or other Acts.

(5) A person other than those eligible to become an executor pursuant to paragraphs (1) through (4) may implement a snow project at the time of urban planning after being designated as an executor by the Minister of Construction and Transportation, a Mayor/Do Governor, or the head of a Si/Gun pursuant to the Presidential Decree.

(6) When the Minister of Construction and Transportation, a Mayor/Do Governor, or the head of a Si/Gun designates an implementer of a City/Do planning facilities project pursuant to paragraph (2), (3) or (5), he/she shall publicly announce the details of such designation as prescribed by the Ordinance of the Ministry of Construction and Transportation.

(7) Where any person other than the State, a local government, a government-invested institution or a person prescribed by Presidential Decree intends to be designated as an executor of an urban planning facility project pursuant to paragraph (5), he/she shall meet the requirements prescribed by Presidential Decree concerning the owned area of land (excluding State and public land) subject to an urban planning facility project and the ratio of landowners’ consent.

Enforcement Decree of the former National Land Planning and Utilization Act (amended by Presidential Decree No. 20535 of January 8, 2008)

Article 96 (Designation of Implementers)

(3) The term "requirements prescribed by Presidential Decree" in Article 86 (7) of the Act means holding land equivalent to at least 2/3 of the area of land subject to an urban planning facility project (excluding State and public land; hereafter the same shall apply in this paragraph) and obtaining the consent of at least 2/3 of the total number of landowners.

List of Plaintiffs

1. Kim○-○ (J)

[Supplementary Districts in Ansan-si]

2. Kim○-○ (K)

Yangsan City

3. ○○ ( L)

Seoul Songpa-gu

4. Kim○-○ (M)

Sung-nam City Subdivision-gu

5. Kim○-○ (N)

Gangnam-gu Seoul

6. ○○ (0)