The scope of the application of the Guidelines for the Implementation of Private Sector in relation to the provisions on restrictions on the use of buildings applicable to the extension of existing buildings within district unit planning.

Article 42 of the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002) (see Article 51 of the current National Land Planning and Utilization Act), and Article 53 (see Article 76 of the current National Land Planning and Utilization Act)

Plaintiff (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

The head of Yongsan-gu Seoul Metropolitan Government (Attorney Yellowdo-do, Counsel for defendant)

Seoul High Court Decision 2003Nu14750 delivered on September 8, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the facts duly established by the court below, the plaintiff filed an application for the building permit of this case with a view to extending the total floor area of 2,004.64 square meters to the existing building in the previous building in Yongsan-gu Seoul Special Metropolitan City and two lots (hereinafter “the site for the building permit of this case”) on the ground of business facilities, and the defendant is located in the Yongsan-gu District Unit Planning Zone and the total floor area of the extension exceeds 300 square meters, so the defendant's application for the building permit of this case shall be deemed to be the same as the application for new construction of the plaintiff's application pursuant to Article 56 (1) 1 of the Yongsan-gu District Unit Planning Guidelines (hereinafter "Enforcement Guidelines") and the guidelines for the district unit planning and operation shall be applied. This case's application for the building permit of this case is located in the general residential area adjacent to the main road, and the amusement facilities cannot be located pursuant to Article 21 of the Enforcement Guidelines, and thus, the plaintiff rejected the above building permit of this case against the plaintiff.

However, Article 56(1)1 of the Enforcement Guidelines provides that "where an existing building is extended, the scope or increased total floor area of the existing building shall not exceed 50 percent of the total floor area of the existing building, and is not more than 300 square meters, the deliberation by the Gu Urban Planning Committee shall be relaxed, and where the scope or increased total floor area of the existing building exceeds 50 percent of the total floor area of the existing building or exceeds 300 square meters, it shall be deemed that the new building is the same as that of the existing building, and Article 2 of the Enforcement Guidelines provides that the scope of application of the implementation guidelines shall apply to the extension." (1) Article 56(1)1 of the Enforcement Guidelines provides that "in the case of the extension of the existing building, the scope or increased total floor area of the existing building shall be more than 50 percent of the total floor area of the existing building, the latter part shall be applied to the extension exceeding 10 percent of the existing building's total area and the existing building's provision shall be applied to the extension of the existing building without such restriction.

Therefore, in this case where the use of the part of the building to be extended by the plaintiff upon the application for building permission is not a amusement facility, which is not a non-permission purpose under the Yongsan District Unit Planning, the defendant cannot refuse the application for building permission due to the restriction on the use of the building, unless there are special circumstances. Therefore, the defendant's disposition of this case made on the opposite premise is illegal.

The court below is justified in holding that the defendant's disposition of this case is unlawful, but all of the arguments in the grounds of appeal are not acceptable.

2. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)