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(영문) 부산고등법원(창원) 2020.10.07 2020누11018
개발행위불허가처분취소
Text

All appeals by the plaintiffs are dismissed.

The costs of appeal are assessed against the plaintiffs.

Purport of claim and appeal

The first instance court.

Reasons

The reasoning for the court's explanation of this case is as follows: Article 58 (1) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter "National Land Planning Act") shall be amended to "Article 58 (1) of the National Land Planning and Utilization Act (hereinafter "National Land Planning Act")"; and Article 58 (2) of the Enforcement Decree of the National Land Planning and Utilization Act shall be amended to "Article 58 (1) of the National Land Planning and Utilization Act (hereinafter "National Land Planning Act"), and the plaintiffs' additional arguments shall be cited based on Article 8 (2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act, except for the addition of the judgment as

(1) The lower court determined that the instant disposition was lawful on the grounds that the Plaintiffs’ grounds for appeal, excluding the following additional determination, did not differ significantly from the allegations in the first instance trial, and that the facts-finding and determination in the first instance court are reasonable even if the additional evidence added by this court were to be seen as being presented. The gist of the Plaintiffs’ claim is that the average slope of the site of the instant application is 14.07∑, 15.92∑, and the average slope rate of the area of 15∑ or above is 37.56%, and 62.2%, respectively, and that there is a possibility that a disaster may occur at the rate of 37.56%, and 62.2%, and that there are many trees with high age, such as pine trees

However, the judgment of the first instance court that deemed that there is possibility of disaster on the basis of the average slope map of mountainous districts and the ratio of area above 15∑s is unfair as it is based on the provisions of Article 18-2(3) [Attachment 3-2] [Attachment 3-2] 2(b), etc. of the Enforcement Decree of the Mountainous Districts Management Act (amended by Presidential Decree No. 29329, Dec. 4, 2018) that does not apply to the disposition

In addition, the application of this case is a quasi-preserved mountainous district, which is the criteria for permission for mountainous district conversion prescribed in Article 18 (1) 3 of the Mountainous Districts Management Act pursuant to Article 18 (2).

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