Whether the width of the road as well as the actual status thereof shall not be less than eight meters in order to satisfy the “the site of the place of business shall adjoin roads with a width of not less than eight meters” prescribed as one of the facility standards for the filling of liquefied petroleum gas in Article 10(1)1 [Attachment 3] of the Enforcement Rules of the Safety Control and Business of Liquefied Petroleum Gas Act (affirmative)

Articles 3(4) and 4(1)3 and 6 of the Safety Control and Business of Liquefied Petroleum Gas Act, Article 10(1)1 [Attachment Table 3] of the Enforcement Rule of the Safety Control and Business of Liquefied Petroleum Gas Act

Jeju Search Energy Co., Ltd. (Attorney Go Il-soo, Counsel for the defendant-appellant)

State Mayor (Attorney Han-soo, Counsel for the defendant-appellant)

Gwangju High Court ( Jeju) Decision 2010Nu32 Decided October 27, 2010

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

The grounds of appeal are examined.

1. Article 4(1) of the Safety Control and Business of Liquefied Petroleum Gas Act (hereinafter “Scale Gas Act”) provides that upon receipt of an application for permission for liquefied petroleum gas charging business, gas appliance manufacturing business, liquefied petroleum gas collective supply business, and liquefied petroleum gas sales business, a Mayor/Do Governor or the head of a Si/Gun/Gu shall grant permission where all of the following requirements are met. Of the subparagraphs, subparagraph 3 of the same Article provides that “No business facilities shall be installed in an area where the installation is deemed inappropriate in consideration of connection roads, urban planning, population concentration, etc.” and subparagraph 6 of the same Article provides that “this Act and other Acts and subordinate statutes shall be complied with.

Meanwhile, Article 3(4) of the Liquefied Gas Act provides that “standards and technical standards for the filling, collective supply, and sale of liquefied petroleum gas and the manufacture of gas appliances shall be prescribed by Ordinance of the Ministry of Knowledge Economy.” Accordingly, Article 10(1)1 of the Enforcement Rule of the same Act provides that “The site of the place of business shall adjoin roads with a road with a width of at least eight meters” as one of the facility standards (hereinafter “instant provision”). The purport of the provision is to ensure smooth traffic flow and safety in the vicinity of the gas charging business place by securing the width of roads where large-scale gas vehicles or similar fire-fighting vehicles, etc. can access to the place of business for filling and selling liquefied petroleum gas. In light of the purport and contents of the above Act, in order to meet the facility standards prescribed in the instant provision, it is insufficient to ensure that the width of roads is at least eight meters, and the actual status of roads is at least eight meters.

Therefore, as the width of the road abutting on the site of the liquefied petroleum gas filling business site is not less than eight meters in the cadastral record and even if it is actual status, the permission-granting authority should not grant permission if it fails to meet the requirements under Article 4(1)6, or if it is deemed that the installation of the business is inappropriate in light of the facility standards and technical standards under Article 3(4) of the Liquefied Gas Act, or the connection roads, urban planning, population concentration, etc., and thus fails to meet the requirements under Article 4(1)3.

2. According to the records, ① the width of the road leading to 4m, at the entrance of the site for filling the instant liquefied petroleum gas (hereinafter “instant site”) is 3m. The Plaintiff, in the process of deliberation by the Traffic Impact Analysis and Improvement Measures Deliberation Committee, presented an improvement plan for the road package with a width of 108.5m wide, cannot be found in the records. ② The part of the instant site for entering the road to move from the instant site to the main road is 498m from the 4 side of the project site to the 3 side of the village entrance of the livestock industry, and the part of the instant site is 1,168m wide from the 3rd of the entrance of the livestock village to the 3rd of the livestock industry, and the part of the instant road is 1,68m wide from the 4m width of the road to the 6m width of the site without permission. According to the results of the deliberation by the Road Impact Analysis and Improvement Committee, the Plaintiff is not registered in the road traffic impact analysis and improvement plan for the road.

Therefore, in full view of these circumstances, it seems difficult for the Plaintiff to secure the site for each road part of less than eight meters wide as above, and to secure it in the near future and expand it to eight meters wide.

3. Thus, in light of the legal principles as seen earlier, it cannot be deemed unlawful that the Defendant’s use of the road adjacent to the instant project site and the width of the instant road falls short of the facility standards prescribed by the provisions of this case, on the ground of non-permission on the instant application.

In addition, in light of the above circumstances, the traffic impact assessment was made on the premise that the width of the road abutting on the project site of this case has been expanded to eight meters, and the Defendant’s traffic impact analysis and improvement plan deliberation process conducted to the Plaintiff on the road of this case to ensure the width of the road of this case after securing the budget as it falls short of eight meters or less, and thus, it is insufficient to view that the Defendant expressed a public view that the road of this case abutting on the project site of this case and the width of the road of this case should not be considered as the non-permission ground for the filling project of this case. In addition, it is difficult to realize the traffic impact assessment deliberated on with securing at least eight meters of the road of this case as a performance condition, or considering the surrounding circumstances of the project site of this case, it is difficult to deem that the application of this case is unlawful on the ground that the traffic flow of the connecting road of this case is likely to be obstructed.

Nevertheless, the court below, on the erroneous premise that the width of the road required by the provision of this case should be based on the entry in the cadastral record, such as the land cadastre, not on the actual condition, and on the erroneous premise that the width of the road in the road of this case is eight meters, and thus, deemed that the ground for non-permission of the disposition of this case is difficult to be recognized as a justifiable reason, and thus, revoked the disposition of this case. In so doing, the court below erred by misapprehending the legal principles on the interpretation of Article 3(4) and Article 4(1) of the Liquefied Gas Act and Article 10(1)1 [Attachment 3] of the Enforcement Rule of the same Act, which affected the conclusion of the judgment. The ground for appeal pointing this out is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)