207Nu1253 Revocation of revocation of development activities

1. Kim○-○ (resident number omitted);

Not more than 300 00

2. Voluntary ○○ (resident number omitted);

Not more than 300 00

3. Maximum ○○ (resident number omitted);

Not more than Cheongju-si omitted

4. Kim Jong-tae (resident number omitted);

Not more than 300 00

[Judgment of the court below]

200

A litigation performer ○○, Ansan-gu, Maximum○○

Attorney Kim △-hoon et al.

Cheongju District Court Decision 2006Guhap1598 Decided June 13, 2007

April 3, 2008

April 17, 2008

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the court of first instance is revoked. The defendant's decision on September 8, 2006 that was made to the plaintiffs on September 8, 2006 that rejected the issuance of each of the following lands shall be revoked (the filing date of the complaint's claim on December 22, 2005 seems to be erroneous).

Plaintiff Kim-○: 730 meters of forest land in Dongcheon-dong (hereinafter omitted)

Plaintiff ○○: The forest land of the same Dong (hereinafter omitted) 702 square meters

Plaintiff ○○○: forest land of the same Dong (hereinafter omitted) 716 meters

Plaintiff Kim Young-chul: forest land of the same Dong (hereinafter omitted), 674m

1. Basic facts

A. A. On January 2005, the plaintiff Kim Jong-chul entered into a contract to purchase the land of this case by dividing the land of this case into 70 lots, road site and 67 lots into 7,019m from February 2, 2005, the land of this case was partitioned into 77,019m [the registration of ownership transfer was completed on May 12, 2005, and the registration was completed on May 18, 2005 at 77,019m as the same Dong (hereinafter omitted), and the registration was completed on the land of this case (hereinafter referred to as the "land of this case"). The land of this case was divided into 70 lots, divided into 3 lots into the road site and 67 lots into 14 lots from February 2, 2005 to the housing site, advertisement was made to sell the above housing site into 114, chemical newspaper, etc. as the former housing site.

나 . 위 분양광고에는 주식회사 (원고 김□□가 사업자등록을 한 신명개 발과 상호가 유사하다) 이 시행사이고 도로포장 및 수도시설이 완비되었다는 등의 기재 가 있고 , 원고 김□□가 제공한 분양팜플렛에는 총 66세대의 전원주택단지가 조성된다 는 내용 및 전원주택의 45평형, 55평형, 50평형, 60평형의 조감도와 단면도 , 단지 배 치도, 건축자재의 재료, 심야난방, 급수공급까지 기재되어 있으며, 설계자는 주식회사 ◆◆◆◆으로 기재되어 있다.

C. Until the time of the filing of the instant lawsuit, Plaintiff Kim Jong-tae recruited more than 30 persons, including other plaintiffs, and concluded a sales contract for each housing site with the buyer, and entered into a special agreement with the buyer on the same terms as in drinking, and completed the registration of transfer of ownership without receiving the remainder of the purchase and sale ( Plaintiff Kim Jong-○, July 13, 2006; Plaintiff Y-○, Jun. 9, 2005; Plaintiff ○○, Jun. 9, 2005; and Plaintiff ○○ completed the registration of transfer of ownership for each of the lands indicated in the purport of the claim on June 9, 2005).

Matters of special agreement

1. A seller shall transfer his/her registration of transfer to a buyer and make a provisional registration of the seller until the balance is paid in advance;

(State)In the construction of the infrastructure for civil engineering works, designated by the person (or the Road Packing, six metres in Water and Sewerage).

The buyer shall pay any balance after completion and the seller shall cancel the provisional registration.

2. The purchaser's co-ownership share of 16,250 square meters in the area of a natural park remaining remaining in a forest remaining in a forced Dong (hereinafter omitted);

246.2 square meters (per approximately 74.5 square meters).

3. The buyer shall present all documents required for permission for development activities (a certified copy of resident registration, a certificate of personal seal impression, and land).

Two copies of each letter of consent to use

4. The area of a road shall be divided into 179.59 (54.3 square meters) per parcel, and registration of road shares shall be completed after all roads are completed;

Hawd.

라. 이 사건 토지 중 주택용지를 분양받은 사람들 명의로 이 사건 토지 중 일부에 관하여 다음과 같은 개발행위허가신청이 순차 이루어졌는데, 그 신청업무는 원고 김미 □ 지정한 ★★측량설계사무소에서 대행하였고(수분양자들과의 용역계약서가 작성됨), 일부 허가된 신청지에 대한 토목공사는 원고 김□□의 처남으로서 주식회사 대덕건설 을 운영하는 신○○가 시공하였으며(수분양자들과의 도급계약서가 작성됨), 1, 2차 신 청지 지상 조립식 건물 신축공사는 원고 김□□가 소개한 공사업체가 일괄 시공하였 다

(1) Application for permission for the primary development activity

Applicant: OOOO et al. (joint application)

Date of application: March 22, 2005

Details: Change to the form and quality of detached houses (7 units) and access roads to create sites;

Application area: 8,578§³ (5,213m as housing site, and 3,365m as housing site, respectively)

Date of permission: April 1, 2005

Date of completion inspection: November 4, 2005 (a final inspection on completion of development activities by constructing a prefabricated building with seven units);

6 after receipt of 6 dong removal

(2) Application for permission to engage in secondary development activities

Applicant: Plaintiff Kim Young-chul et al. (joint application)

Date of application: November 9, 2005

Details: Change to the form and quality of detached houses (11 units) and access roads to create sites;

Application area: 9,538m square meters (8,084m2 as housing site, and 1,454m as road site, respectively)

Date of permission: December 9, 2005

Date of completion inspection: June 15, 2006 (one reinforced concrete structure and 10 prefabricated building)

After construction of water and undergoing a completion inspection on development activities, 8-dong irons

(o)

(3) Application for permission for the third development activities

Applicant: Plaintiff Kim Young-chul et al. (joint application)

Date of application: December 22, 2005

Details: Change to the form and quality of detached houses (11 units) and access roads to create sites;

Application area: 9,859m of square meters (8,640m as housing site, and 1,219m of square meters as road site)

Non-permission date: January 24, 2006

Reasons for no permission: Connections with the aggregate area of the application place for permission of development activities of 1,200 28,033m;

Development activities exceeding 10,000 square meters, which are the scale of development activities, and to construct them;

housing is subject to approval of a project plan under Article 16 of the Housing Act;

National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act") No. 58

section 55(1)1 of the Enforcement Decree of the same Act, the opening within the natural green area

It is impossible to permit development activities in conflict with the scale of permission for issuance.

(4) Application for permission for the fourth development activities

Applicant: Plaintiffs (each person’s own application)

Date of Application: August 7, 2006 (Plaintiff Kim-○, Ma-○, Ma-○), August 21, 2006 (Plaintiff Choi ○, Ma-young)

Details: Change of form and quality to create a detached house site in each lot stated in the purport of the claim

Non-permission date: September 8, 2006 (the non-permission disposition of this case stated in the purport of the claim)

Grounds for Non-permission: contrary to the purpose of limited development for the purpose of designation of natural green area; division of land

Housing under Article 16 of the Housing Act and Article 15 of the Enforcement Decree of the same Act in consideration of the condition of installation;

project plan is subject to the approval of the project plan and the Do under Article 22 of the Ordinance on the Do Urban Planning

Article 58(3) of the National Land Planning and Utilization Act in the state of securing infrastructure, such as roads;

The facts that there is no dispute that permission for development is impossible due to the lack of conformity with the criteria for permission (based on recognition), Gap evidence 1, Gap evidence 3 through Gap evidence 6, Gap evidence 11, Gap evidence 14, Gap evidence 25-1 through 6, Gap evidence 26-1 through 9, Eul evidence 26-1 through 3, Eul evidence 5, Eul evidence 7 to Eul evidence 18 (including provisional numbers), Eul evidence 7-7 through 18, Eul evidence 1-2, witness of the first instance court, witness of the first instance court, ○○○○, △△△△△△△△, some testimony of each part of the plaintiffs of the first instance court against the plaintiffs (excluding any portion which is not trusted below), the result (excluding any part which is not trusted below), the result of the on-site verification, the purport of the whole pleadings and arguments of this court, the purport of this court as a whole.

[Proof Evidence] Gap evidence 25-7 to 12, Gap evidence 26-10 through 17, Gap evidence 28-28, witness of the first instance court, new ○○○, Kim* part of testimony of the △△△△△, and the result of the first instance court's personal examination.

2. Judgment on the parties’ assertion

A. The plaintiffs' assertion

(1) The plaintiffs and applicants for permission for development activities of the first and second sites for each of the instant development activities are the owners of the housing sites sold in lots, who individually intend to construct electric source housing. The construction of housing for the development purpose of the first and second permitted areas may be completed and subject to inspection on completion of development activities at the request for permission for the issuance of the first and second permitted areas, and the number of buyers of the first and second applied areas may undergo inspection on completion, and the construction of the first and second prefabricated-type building was completed after completion, and the construction of the last final building was removed in order to construct a complete final building after completion. These processes are limited to the general practice in the case where construction of electric source housing in a single area is intended, and do not do so to construct it as a housing complex. Accordingly, the defendant's construction of the housing units to be constructed on the date of application for permission for development activities of the first and second sites and the fourth applied for permission for development activities is erroneous in the interpretation of the laws and regulations related to the approval of the project plan under the National Land Planning Act, etc.

(2) Although the Housing Act has a clear definition provision for the "project proprietor" and "housing complex" in Article 2, Article 4 and 5, Paragraph (3) of the Enforcement Decree of the Housing Act, Article 15, Paragraph (3) of the Housing Act expands the definition of the "project proprietor" in the "project proprietor" in determining the scale of housing construction under Article 2, Paragraph 1, Item 12 of the Building Act to construct housing by dividing a group of housing complex into several sections of construction, the same project proprietor shall determine the scale of the number of housing units or households of the total sections of construction as housing construction in the housing construction area, by prescribing that the scale of housing construction units or households of the entire sections of housing shall be calculated separately from the owners of several housing sites that intend to construct each house in the adjacent area and perform all of them in a lump sum, the same project proprietor shall be deemed to construct a group of housing complex, and thus, the scope of the project proprietor subject to approval of the project plan shall be expanded compared to the definition of the Housing Act that is the mother corporation.

(3) The Defendant, even though there was a ground for non-permission to secure infrastructure, such as roads, was planned to pack roads necessary for the Plaintiffs’ application, and the water supply and drainage system, etc. are already completed. Thus, the Defendant misleads the Defendant of the premise of the above disposition, and even if there was such defect, it may be permitted by attaching necessary conditions, such as supplementation. Therefore, the Defendant’s rejection of the entire development act without considering any room for conditional permission is a deviation from and abuse of discretion.

(4) The plaintiffs are allowed to permit the development of the land of this case from the public officials of the defendant, and their above-ground houses can be developed since they are not subject to the approval of the housing business plan. However, even though the defendant granted the first and second permission without any condition, it was believed and developed the land of this case, the non-permission disposition of this case was made in violation of the principle of trust protection.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(A) Whether the development activity under Article 58 (1) 1 of the National Land Planning and Utilization Act is in conformity with the scale

Article 56(1) of the National Land Planning and Utilization Act provides that a person who intends to change the form and quality of land shall also obtain permission from the Special Metropolitan City Mayor, the head of Si, or the head of Si/Gun. Article 58(1) provides that "the content of an application for permission for development activities shall meet the scale above the development activities prescribed by Presidential Decree taking into account the characteristics of special-purpose areas." Article 55(1)1(a) of the Enforcement Decree of the National Land Planning and Utilization Act prohibits the alteration of the form and quality of at least 10,00 square meters in residential areas, commercial areas, natural green areas, and green areas, and green areas (hereinafter referred to as "area restriction provision") prohibit the alteration of the form and quality of land within 0,00 square meters in a residential area, management area, or natural environment conservation area, or if such alteration is partially developed through several times, such restriction provision shall be deemed as one development act, and its area shall be strictly restricted, and the purpose of the Act on the Maintenance and Improvement of Land within the scope of the same project development project area.

Meanwhile, Article 55 (5) 3 of the Enforcement Decree of the National Land Planning and Utilization Act provides that a house to be constructed is not subject to the above-mentioned restriction on development if it is intended to construct housing on the land subject to a permission of development activities. Articles 16 and 17 of the Housing Act, and Article 15 of the Enforcement Decree of the same Act provides that a house to be constructed shall not apply to a light rain which requires the approval of a project plan under Article 16 of the Housing Act, and Article 15 of the Enforcement Decree of the same Act shall obtain the approval of the Mayor/Do governor or the Minister of Construction and Transportation for a project plan including a plan for placement of incidental facilities and welfare facilities. A person who intends to implement a construction project in 20 or more units of a detached house shall obtain the permission of development activities under the National Land Planning and Utilization Act, and a building permit under the Building Act shall be deemed to have been granted for a housing construction project of a scale subject subject to the approval of such project plan. Furthermore, the Housing Act provides that housing construction project shall be executed under strict supervision of an administrative agency, such construction project.

In full view of the provisions related to the Housing Act and the purport of Article 55(4) of the Enforcement Decree of the National Land Planning and Utilization Act, in cases where housing is not subject to an exception to the application of the above-mentioned provision on restriction on development under Article 5(5)3 of the Housing Act, and where a project operator intends to construct housing subject to approval of a project plan under Article 16(1) of the Housing Act, i.e., where 20 or more housing construction projects are to be implemented, the issue of whether it is a case where 20 or more housing construction projects are to be implemented shall not be based on appearance, such as the name in the public register of the land subject to development or the name in the name of the applicant for permission, but shall be determined practically by taking into account all the circumstances, such as the state of division and utilization of the land subject to development, the purpose and method of development, the intent of the parties concerned, and the details of the application for authorization and permission, and even if the partial development activities were to be developed by several persons to construct their own housing, it does not constitute an exception to the above restriction provision.

However, as seen earlier, the following facts are acknowledged: (a) the Plaintiff Kim Jong-tae divided and divided the instant land into the housing site of 67 and divided it into common roads and infrastructure, such as waterworks and sewerage; (b) the sale advertisement is not the sale of the land before it was developed into the housing site; (c) the Plaintiff Kim Jong-tae divided the housing site into a group of housing complex with complete infrastructure such as Do roads; and (d) the ownership of the housing site was transferred to the buyer, and completed the building site development permission under the name of the buyer, and completed the building site development permission under the name of 60 or more; and (e) the construction of the building site was applied for the development permission and the construction of the building building under the name of 60 or more; and (e) the construction of the building site was applied for the construction permission and the construction of the building building under the name of 60 or more, and it is clearly difficult for the developer to construct or remove the building site in the name of 10 or more different from the construction permit.

Therefore, it is reasonable to deem that the instant development activity applied by the Plaintiffs for permission constituted development activity with a size exceeding 10,00 square meters in a natural green area by adding up the areas applied for each development permit, which was partially performed on several occasions, pursuant to Article 5(4) of the Enforcement Decree of the National Land Planning and Utilization Act, as the development activity of Plaintiff Kim Jong-tae on the instant land is subject to the approval of a project plan under Article 16 of the Housing Act. Article 58 of the National Land Planning and Utilization Act and Article 55(1) of the Enforcement Decree of the same Act provide that the form and quality of land exceeding 10,000 square meters in a natural green area cannot be permitted. Thus, the Defendant’s non-permission disposition against the

(2) Whether Article 15(3) of the Enforcement Decree of the Housing Act exceeds the bounds of delegated legislation and thus becomes null and void

Article 2 subparagraphs 4 and 5 of the Housing Act and Article 15 of the Enforcement Decree of the Housing Act provide that "housing complex" and "project proprietor" mean land subject to the project and project implementor in the case of obtaining approval of a project plan pursuant to Article 16 of the same Act, and Article 16 of the Housing Act and Article 15 of the Enforcement Decree of the same Act provide that the scope of the project plan is to determine the scope of the objects subject to approval of a project plan. In addition, in the case where Article 16 of the Housing Act and Article 15 (1) of the Enforcement Decree of the Housing Act intends to implement a construction project of 20 or more units of detached houses, the meaning of the provision is not necessarily same. In addition, in light of the fact that Article 15 (3) of the Enforcement Decree of the Housing Act does not stipulate that construction project proprietor shall be subject to the delegation of Article 16 of the Enforcement Decree of the Housing Act without any specific supervision of an administrative agency, and the purpose of the above provision is that Article 15 (1) of the Housing Act does not stipulate the scope of delegation of the above provision.

C) Whether the failure to secure infrastructure, such as roads, is a deviation or abuse of discretionary power

According to Article 58(3) of the National Land Planning and Utilization Act, attached Table 1-1(e)(2) of the Enforcement Decree of the same Act, and Article 2(1)11 of the Building Act, in order to obtain permission for development activities for changing the form and quality of land, a road with a width of at least four meters with pedestrian and vehicle traffic can be secured. Thus, the defendant may make a non-permission disposition on the ground of lack of the requirements, and even if it is possible to grant permission with conditions, it cannot be viewed as a deviation from and abuse of discretionary power on the ground that the non-permission disposition was made (in addition, even if the development activities in this case constitute a change in the form and quality of land exceeding 10,000 meters within a natural green area, so long as the non-permission disposition in this case is legitimate, it does not constitute an unlawful disposition on the ground of the above reasons).

D) Whether it is unlawful because it violates the principle of trust protection

The statements and testimony of Gap evidence Nos. 22 through Gap evidence Nos. 24 and Gap evidence Nos. 27 (including the paper number) are insufficient to recognize that the defendant's responsible person could obtain permission for the development of the land of this case and that the above ground houses are not subject to the approval of the housing project. There is no other evidence to acknowledge otherwise. The defendant granted 1 and 2 permission for part of the land of this case without any condition, and it cannot be deemed that the defendant issued a public opinion statement to the purport that he would prejudice the permission for the development of the whole land of this case against the plaintiffs. Thus, this part of the assertion is without merit.

Therefore, the rejection disposition of this case is legitimate, so the plaintiffs' claim is dismissed as it is without merit, and the judgment of the court of first instance is just and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Awards and decorations (Presiding Judge)

National Assembly and Home Affairs Commission

Mobile smoke;

Site of separate sheet

[Related Acts]

/ The National Land Planning and Utilization Act

Article 56 (Permission for Development Acts) (1) An act falling under any of the following subparagraphs, which is prescribed by the Presidential Decree (this refers to this act):

(n) A person who intends to obtain permission from the Special Metropolitan City Mayor, a Metropolitan City Mayor, or the head of a Si/Gun (hereinafter referred to as "development activities").

Permission for development activities shall be obtained: Provided, That this shall not apply to the case of an urban planning project.

H.C.

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 Activities) (1) Special Metropolitan City Mayor, Metropolitan City Mayors, heads of Sis/Guns shall apply for permission for development activities.

Permission for development shall be granted only when the contents meet the standards falling under each of the following subparagraphs:

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

5. To properly establish a plan for installing the infrastructure following the relevant development activities, or securing the sites required therefor.

- Enforcement Decree of the National Land Planning and Utilization Act

Article 55 (Size of Permission for Development Acts) (1) The term “development acts prescribed by the Presidential Decree” in Article 58 (1) 1 of the Act.

The term “scale” means the area that changes the form and quality of land falling under any of the following subparagraphs: Provided, That control areas and farming:

For forest areas, the Special Metropolitan City/Metropolitan City/Metropolitan City/ concerned within the scope of the area under the provisions of subparagraphs 2 and 3.

The Si/Gun urban planning ordinance may be separately prescribed by the Si/Gun.

1. Urban area:

(a) A residential or commercial green area: An area of less than 10,000 square meters;

(4) In the application of paragraphs (1) and (2), the green area, control area, agricultural and forest area, or natural environment report.

If development is conducted in part adjacent to and throughout the whole area, it shall be developed one.

The area shall be calculated by deeming it as a site for an urban planning facility project: Provided, That it is a site for an urban planning facility project or 3;

Cases where the restriction on area is not applied under subparagraph 3 of this paragraph shall not be included in calculating the area.

section 3.

(5) Paragraph (4) shall not apply to any of the following cases:

3. Class I neighborhood living facilities or housing (Article 16 of the Housing Act) on the land subject to a permission for development activities;

Cases where it is intended to construct the housing subject to an approval of project plans under the provisions of paragraph (1).

Housing Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

4. The term “housing complex” means a succession to the housing construction project plan or the housing site preparation project plan under Article 16;

for the construction of housing and its incidental facilities and welfare facilities, or for the creation of a site;

The term “land” means a group of lands: Provided, That the land separated by the facilities falling under any of the following items shall be divided by separate

land shall be deemed to be land.

(a) Railroads, expresswayss, or motorwayss;

(c) General roads with a width of at least 20 meters;

(c) A scheduled urban planning road with a width of at least 80 meters;

(d) Facilities corresponding to those under items (a) through (c) as prescribed by the Presidential Decree.

5. The term "project proprietor" means a succession to the housing construction project plan or the housing site preparation project plan under Article 16;

(1) The person who carries out the project with the approval of the

(a) The State or local governments;

(c) The Korea National Housing Corporation under the Korea National Housing Corporation Act (hereinafter referred to as the "Korea National Housing Corporation"), or the Korea Land Corporation;

Korea Land Corporation established pursuant to the Act (hereinafter referred to as the "Korea Land Corporation").

(c) Housing constructors or housing site preparation businessmen registered under Article 9;

(d) Other persons who undertake the housing construction project or the housing site preparation project under this Act. Article 16 (Approval of Project Plan) (1) He shall implement the housing construction project of more than the number prescribed by the Presidential Decree;

A person who intends to implement a housing site preparation project exceeding the area as determined by the Presidential Decree; and

An application for approval for capture shall be prescribed by Presidential Decree, such as the plot plan of housing, incidental facilities and welfare facilities, site preparation works and drawings

A Mayor/Do Governor (in the case of implementation by the National National Housing Corporation or the Korea Land Corporation) by attaching the documents prescribed in this Ordinance.

The term “Minister of Construction and Transportation” means the Minister of Construction and Transportation as well as the cases prescribed by the Presidential Decree; hereafter the same shall apply in this Article and Article

shall submit to the court and obtain the approval of the project plan: Provided, That the same structure with the facilities other than the housing

The same shall not apply to cases prescribed by Presidential Decree, such as construction in roads.

/ Enforcement Decree of the Housing Act

(1) For the purpose of the main sentence of Article 16 (1) of the Act, the term “number of houses as prescribed by the Presidential Decree” means the number of houses.

20 units in the case of a single house and 20 units in the case of a collective housing, and the term “area as prescribed by the Presidential Decree”;

The term “one thousand square meters” means one thousand square meters.

(3) The same calculation in the scale of housing construction under the provisions other than each subparagraph of paragraphs (1) and (2).

A group of shares by the project undertaker (including the project owner under Article 2 (1) 12 of the Building Act)

When intending to construct housing by dividing a housing complex into several sections, housing construction of the total sections of the construction

The scale of housing units or households shall be calculated as the scale of housing construction. In such cases, construction standards of housing and incidental facilities;

In the application of the standards for installation of facilities and welfare facilities and the standards for the formation of housing sites, the total construction sections shall be one site.

shall be deemed to be the end;