(영문) 서울행정법원 2006.1.26.선고 2005구합21514 판결

1. The defendant's disposition is revoked on June 30, 2005 against the plaintiff's application for development activities (such as changing the form and quality of land).

2. The costs of lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On April 29, 2005, the Plaintiff filed an application with the Defendant for permission to engage in development activities on the land form and quality of land (hereinafter referred to as “development activities in this case”) with the aim of building sites for the first underground floor and the seventh floor building on the ground (educational research facilities and single house).

B. On June 30, 2005, the defendant filed a civil petition on the ground that ① the case newly constructed by the development act of this case damages the surrounding natural scenery and aesthetic view, and is not in harmony with the neighboring building, ② there is possibility of disaster, such as the collapse, etc. caused by the development act, ③ the residents of neighboring apartment complexes may cause a big trouble to the living environment of residents, such as traffic congestion caused by the development act of this case, and infringement of the right of sunshine and view, etc.," and ④ the defendant already decided the site of urban planning facilities as the site of urban planning facilities (public land) on June 28, 2005 under the Gangnam-gu Notice No. 2005 - 386, the defendant made a public announcement to allow the residents to present their opinions on the case, and thereafter decided to be urban planning facilities, the plaintiff's application for the urban planning project of this case shall be rejected pursuant to Article 58 of the National Land Planning and Utilization Act, Article 56 of the Enforcement Decree of the same Act, and Article 26 of the plaintiff's disposition.

【No dispute over the basis of recognition】 Each entry in Gap evidence 1-1 ( = Eul evidence 1), 2, and 6 ( = evidence 4)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant application for permission for development activities does not constitute grounds for restrictions on development activities under the relevant statutes, such as Article 58 of the National Land Planning and Utilization Act, Article 56 of the Enforcement Decree of the same Act, and Article 24 of the Seoul Metropolitan Government Urban Planning Ordinance.

(2) In light of the public interest purpose of creating a pleasant urban living environment by determining the instant application site as public vacant land in addition to the grounds for restrictions prescribed by the relevant statutes, the instant disposition is deemed unlawful in light of the fact that the Defendant already granted permission for apartment complex and multi-household housing on the neighboring land of the instant application site, and the Defendant’s failure to change the form and quality and to permit the construction of housing is against the principle of equity.

(b) Relevant statutes;

As shown in the attached Form.

(1) Under an urban management plan, the instant application is a Class-III general residential area that is connected to the east side of the road with a width of 30 meters, as indicated in the annexed drawing, and a park park of approximately 255, 342 square meters in the Doletin Park (Yonsansan), which is enclosed to the west of the above application site, and a park of approximately 15,072 square meters in the west of the above application site, is created on the west of a park of 15,072, and a park of 3 square meters in the village in the village of the village of the village of the same 723 square meters.

(2) The shape of the geographical features of the instant application site is miscellaneous and trees at the edge of a high height, and the part seems to have cultivated dry field crops in parallel. The Gyeongnam apartment complex is constructed between six meters north-west and the west-west new apartment complex is constructed. When constructing the instant building with the high-priced seven floors, the Gyeongnam apartment complex is part of the 103-dong, 104-dong, the 104-dong residents of low-rise, and the ground to be developed is 【0.0.0, the ground height of the current application site is +1.70 meters, the ground ground of the Han new apartment parking lot - the ground of the Han new apartment parking lot is 30 meters away from the above underground soil retaining walls or underground soil retaining walls.

(3) On the land side of Gangnam-gu Seoul, Gangnam-dong 895- 14, which is linked to the west of the instant application site, the multi-family house of the first underground floor and the third floor above the ground is dried up with the defendant's permission in around 1997.

(4) On February 25, 2003, the Plaintiff acquired the ownership of the instant application site and applied for a change of land quality for the purpose of a private teaching institute facility (one story or six stories) and a household of single house (seven stories), and on April 29, 2005, the Plaintiff purchased a new apartment site and a new apartment site from May 1, 2005 to May 4, 2005, for the purpose of constructing a building of 369 square meters in site, 184 square meters in total size, 1,116.5 square meters in size, and the Defendant purchased a new apartment site and a new apartment site from May 1, 2005 to gather opinions from the neighboring residents of the instant land, including the building site No. 000-14 building site, and the Plaintiff demanded a large number of residents of the said apartment and the apartment site to be able to develop a new apartment site and to reduce their private life.

(5) Since then, the defendant presented a proposal for deliberation on the change of the form and quality of the land in this case to the former Urban Planning Committee, and on May 20, 2005, the Urban Planning Committee presented opinions to the plaintiff on May 27, 2005, "after the Gu Office consulted on the purchase of the land and the purchase of the land to secure small parks or public land, the plaintiff rejected the proposal. However, the defendant re-scheduled the above change of the form and quality of land to the Urban Planning Committee. On June 17, 2005, the Urban Planning Committee rejected the application for the development permit in this case on June 17, 2005 and decided to promptly determine the above application site as urban planning facility (public land). Accordingly, the defendant rejected the application for the public land in this case to the Seoul Urban Planning Committee as the public land (205.6.5) on June 28, 2005, and rejected the application of the above urban planning facility in this case.

【Ground for Recognition】 Evidence Nos. 2, 3, 16, 18, 19, 4-1 through 4, 7, 8, 15

- Each of the evidence of Nos. 1 through 6, 9-1, 10, 13-1, 2, 11, 14, and 17-1, 2, 3, Eul, 1, 2, 5, 6, 15-1 through 4, 16-1 through 7, 18, 19-1, 2-1, and 19-2, each of the statements or images of evidence of Nos. 1 through 3, 16-1 through 7, 18, 19-1, 2, the result of the on-site inspection by this court, the purport of the whole pleadings.

D. Determination

(1) Article 58(1) of the National Land Planning and Utilization Act provides that the Special Metropolitan City Mayor, the head of a Metropolitan City, the head of a Si, or the head of a Gun shall grant permission only when the application for permission of development activities is combined with the standards prescribed in the following subparagraphs. Paragraph (3) provides that detailed matters necessary for the standards for permission of development activities shall be prescribed by Presidential Decree. Article 56(1) [Attachment Table 1] of the Enforcement Decree of the National Land Planning and Utilization Act and Article 24 [Attachment Table 1] of the Urban Planning Ordinance of 24 [Attachment 1] of the Urban Planning and Utilization Act and Article 56(1) of the Urban Planning Act [Attachment Table 1] of the Enforcement Decree of the National Land Planning and Utilization Act and Article 24 [Attachment 2] of the Urban Planning and Utilization Act, where the application for permission of development activities (such as changing the form and quality of land) is subject to permission is insufficient solely on the ground that there is no possibility of hindering the rational utilization of the relevant land or urban planning projects, and specifically, it does not fall under the grounds for permission of 2.

(2) Of the grounds incurred by the Defendant in rendering the instant disposition, those stipulated by the above-mentioned relevant Acts and subordinate statutes shall not harm the natural landscape and aesthetic view of the main side, and their height, form, and color shall be harmonized with the neighboring buildings, and shall not be likely to cause any harm, etc. due to development activities, Article 58(1)4 of the Act, Article 56(1) of the Enforcement Decree [Attachment 1], Article 56(1)4 of the Act [Attachment 1], and Article 56(1) [Attachment 1] of the Enforcement Decree], and Article 58(1)5 of the Act, Article 56(1) [Attachment 1] of the Enforcement Decree of the Act, and Article 56(1) [Attachment 1] of the Enforcement Decree of the Urban Planning Projects shall not interfere with the implementation of urban planning projects.

Article 58(1)3 of the Enforcement Decree, Article 56(1) [Attachment 1] 1.c. (1) and (2] of the Enforcement Decree, and Article 56(1) of the Enforcement Decree are cited. As to whether there is any ground for restriction on the application for permission of development of this case.

(A) First of all, the instant land is adjacent to a private teaching institute facility (1 to 6 floors) and a private teaching institute facility (1 to 6 floors) are already developed as a site for the instant development activities, and its infrastructure is likely to cause harm, etc., and the traffic flow in the surrounding areas is not impeded. According to the above facts, there is a debate that is a road of 30 meters wide to the east of the instant application site, and the Gyeongnam apartment complex is constructed between the two roads, and the two sides is constructed with a road of 6 meters wide. On the other hand, there is a three-story apartment complex constructed towards the westwest, while the apartment house of 3rd floor is constructed adjacent to the westwest, it is difficult to view that there is no concern that there is a legitimate danger that the instant building may cause harm to the natural landscape or harm to the surrounding area of the building and its surrounding area for the purpose of construction activities. Moreover, it is difficult to view that the Plaintiff’s project plan does not have any danger of harm to the surrounding area of the building and its surrounding area.

(B) Next, Article 64(1) of the National Land Planning and Utilization Act provides that the relevant urban planning facilities shall not be permitted to construct buildings other than the corresponding Do urban planning facilities with respect to the land determined as the site of the Do urban planning facilities by the Defendant’s determination of the urban planning facilities publicly notified by the above 2005 - 81. However, Article 43(1) of the same Act provides that the type, name, location, and scale of the facilities shall be determined as an urban management plan in advance if the person installs the infrastructure on the ground, water, air, underwater, or underground. According to Articles 30(6) and 31(1) of the same Act, the urban management plan shall have its effect after 5 days from the date on which the Plaintiff’s application for development permission was lawfully announced, and it shall have effect after 10 days from the date on which the Plaintiff’s application for development permission was made after 200 days from the date on which the Plaintiff’s application for development permission was made.

Furthermore, even if the Defendant determined the instant application site as an urban planning facility (public vacant land) on June 17, 2005, the transfer of the instant disposition on June 17, 2005, and made a public announcement on June 28, 2005, the rejection of the Plaintiff’s application for permission to engage in development activities cannot be deemed a lawful disposition under Article 64 of the National Land Planning and Utilization Act, unless the Seoul Special Metropolitan City Mayor or the Defendant’s external public notice was given.

(3) Although the decision to decide the instant application site as an urban planning facility after the instant application for permission for development action was publicly announced, and the Defendant’s determination of urban planning facilities and the Plaintiff’s application for permission for development can not immediately be the legitimate ground to return the Plaintiff’s application, whether the instant application site is necessary for public interest to the extent that the Plaintiff’s application for permission for development is rejected, except for the grounds for restrictions prescribed in the urban planning facilities, namely, public vacant land (park) or other relevant statutes (see Supreme Court Decision 97Nu14378, Apr. 23, 199).

According to the above facts, in the vicinity of the application site of this case, about 255, and about 342 meters of the Dolsan Park (Yeongsan), the park of this case is created, such as 15, 072, at the west and 5 meters of the size of the square village, and the purpose of public interest is not to create a pleasant urban living environment by determining the application site as public land and installing the rest space for the residents in that place. On the other hand, the application of this case is located within Class 3 general residential area and it is naturally planned to construct houses, educational research facilities and neighborhood living facilities, and it is very difficult for the public to view that the building of this case as legitimate exercise of private ownership is an infringement of the fundamental contents of property rights in light of the fact that it is considerably difficult for the public to view that the building of this case is an infringement of the right to use development activities in the vicinity of the building site of this case, and that it is difficult for the public to view it as a matter of infringement of the right to use neighboring construction facilities and multi-unit houses under the Civil Act.

(4) Therefore, the instant disposition is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.