209Guhap1915 Revocation of Disposition of Non-permission for construction

○ ○

Sung-nam City Subdivision-gu

[Defendant-Appellant] Gyeong-gu et al.

[Defendant-Appellee] Plaintiff 1 and 13 others

The head of Sungnam-si Subdivision

A litigation performer ○○, Kim ○, O○

August 12, 2009

September 9, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant's provisional disposition of denial of construction against the plaintiff on December 29, 2008 shall be revoked.

1. Details of the disposition;

A. On December 15, 2008, the Plaintiff filed an application for permission for construction with the Defendant for the purpose of constructing a building for the purpose of use of neighborhood living facilities on the ground (hereinafter “instant application for permission for construction”).

B. On December 29, 2008, the Defendant rejected the application for the instant building permit on the ground of non-permission (hereinafter referred to as the “instant disposition”) under Article 58(1) of the National Land Planning and Utilization Act, for the following reasons: Article 34(2), (3), and Article 3(1) of the Enforcement Decree of the Farmland Act; Article 34(1) of the Enforcement Decree of the Farmland Act; and Article 58(1) of the National Land Planning and Utilization Act; and Article 58(1) of the same Act. On the other hand, the head of Seongbuk-si respondeded to the effect that the Defendant’s request for the farmland diversion consultation with respect to the instant application for the building permit was rejected.

[Ground of recognition] Facts without dispute, Gap evidence No. 1-3, Gap evidence No. 2-1, 2, and Gap evidence No. 3

A person shall be appointed.

Each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Deviation and abuse of discretionary power

The Defendant’s provision based on the instant disposition is Article 37(2)1 of the Farmland Act, which provides that only if farmland to be diverted is contaminated with agricultural production infrastructure or needs to be preserved as excellent farmland as a planned area to implement a project for improving agricultural production infrastructure, the use of farmland can be restricted. However, the application form of this case cannot be deemed as having been improved, and it is not incorporated into a planned area for implementing a project for improving agricultural production infrastructure, such as where the nearby reservoir does not function as an agricultural water supply source, and it is not incorporated into a planned area for implementing a project for improving agricultural production infrastructure. In addition, the application form of this case is not included in the agriculture promotion area where the farmland is not located within the agriculture promotion area where the road was built in the vicinity, and it is difficult to access farmland and machinery, etc. at a level below two meters compared to the road. It is not only contaminated with soil and underground water due to living sewage such as neighboring military units or shopping districts, but also discharged dust and vehicle gas from the road adjacent to the north of ASEAN, and it does not fall under the present area of this case.

According to Article 33(1)4 of the Enforcement Decree of the Farmland Act, the standard of determining whether farmland subject to the application for diversion is worth preserving value, suggesting whether a project for improving agricultural production infrastructure, such as arable land rearrangement and irrigation facilities, is likely to be carried out, such as regional farmland grouping degree, and fluence of farmland in neighboring areas, etc. However, farmland in neighboring areas including the application site of this case is not any longer grouped for the same reason as seen earlier, and there is no value of conservation as farmland due to aggravation of farming conditions, and even if permission for diversion of the application site of this case exists, adjacent farmland is subject to a separate permission under the Building Act, and thus, there is no risk of fluenceing farmland erosion.

The application of this case is adjacent to the site of the existing neighborhood living facilities, and is separated from the road, and is located on the road, and there is no concern that the construction of neighborhood living facilities might pollute agricultural water or cut farmland axis due to the development activities, such as the construction of neighborhood living facilities. In addition, some farmland around the new Cheong-dong in this case has already lost the function of farmland as farmland, such as residential plastic houses, flowers, and unauthorized parking lots, and the defendant has already permitted the use of farmland located in the area of this case to be used as material-free places in the area of Seongbuk-dong in the area of this case. In addition, there is no need to preserve the application of this case as excellent farmland, even in that the defendant has already permitted the use of farmland located in the area of the new Cheong-dong in the area of this case for the purpose of material-free places. Accordingly, construction activities on the application of this case at the site of this case in accordance with the National Land Planning and Utilization Act (amended by Act No. 942, Feb. 6, 2009).

Although such circumstances are the same, the defendant's disposition of this case under the Farmland Act and the National Land Planning Act constitutes a case where he/she deviatess from or abused discretion by misunderstanding the fact.

(2) Violation of the principle of equality

The land located outside of the application site of this case (hereinafter referred to as the "land to be compared to this case") was originally included in the agricultural-based maintenance project district. However, the defendant permitted the construction of the loan site and the neighboring living complex in the above area. Nevertheless, the disposition of this case is against the principle of equality, on the ground that only the application site of this case is preserved.

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) The filing date of the instant application is located at the same end of the farmland area consisting of about 15 knifies in a group of the same end of the farmland area, the land of which was completed in around 1982, and is located within the green green belt among urban areas under the National Land Planning Act. At the time of the filing of the instant application for the construction permit, dry field farmers, such as ancient cities, drillings, etc., have been established with

(2) On the north side of the instant application site, the road of 20 meters wide from the 20-meter wide crossings the instant application site. The road of 20 meters wide adjoins to the instant application site, and the road of Dogra complex, neighborhood living facilities, and the reservoir in △△ is gathered. The water of the △ reservoir in the instant application site is going through the ditches through the east and south side of the instant application site.

(3) At the west located on the west of the instant application site, dry field crops, such as bean, gambling, and quoral, are mainly cultivated since there are a lot of farmland on the south side. The same side of the instant application site leads to the forest area in which the East Natural Park is located, as there are several farmlands.

(4) On July 12, 2003, the owner of farmland in the vicinity of the instant application site, including the Plaintiff, was granted non-permission disposition on the ground that the Defendant filed an application for a building permit for a building for the use of neighborhood living facilities, but the diversion of farmland is not possible.

[Ground for Recognition] Unsatisfy, Gap evidence 4, Gap evidence 5-1 to 3, Gap evidence 24, Eul evidence 24

31. The site of this Court, each of the statements or images of evidence Nos. 1, 2, and 33 of evidence Nos. 32

Results of verification, the purport of the whole pleading

D. Determination

(1) As to the deviation and abuse of discretionary power

A) Article 11(5) of the Building Act (amended by Act No. 9770 of Jun. 9, 2009); Article 56 of the National Land Planning and Utilization Act (amended by Act No. 9770 of Jun. 9, 2009); Article 56 of the National Land Planning and Utilization Act (amended by Act No. 3); and Article 34 of the Farmland Act (amended by Act No. 34 of the same Act) is deemed to have been granted a permit for farmland conversion under Article 34 of the Farmland Act. Therefore, prior to determining whether to grant a permit for the construction of this case, the defendant must first examine whether the application satisfies the above criteria for the permission; and if the application for the construction of this case does not meet such criteria, he may be denied.

(B) Article 37(2) of the Farmland Act provides that, in cases where farmland to be diverted is subject to the improvement of agricultural production infrastructure, or where it is necessary to preserve farmland as a prospective farmland as an area to implement a project for improving agricultural production infrastructure, the farmland may be restricted (Article 37(1)). Each subparagraph of Article 33(1) of the Enforcement Decree of the Farmland Act provides for the criteria for the examination of permission to divert farmland under subparagraph 4, whether a project for improving agricultural production infrastructure, such as arable land rearrangement and irrigation facilities, is implemented (Article 33(1) of the Enforcement Decree of the Farmland Act; (b) the degree of the grouping of farmland in the area including the farmland in question; (c) whether the diversion of the farmland in question is likely to impair the environment of nearby farmland, which is the diversion of the farmland in question; (d) whether the diversion of the farmland in question may cause damage to agricultural management due to the diversion of farmland in question; and (e) whether the diversion of farmland in question may cause damage to the flow of water.

Although Article 37 of the Farmland Act does not directly delegate the detailed contents to the Enforcement Decree concerning the restriction on permission for diversion of farmland, in light of the fact that Article 33(1) of the Enforcement Decree of the Farmland Act sets the specific examination criteria for farmland diversion under Article 33(1) of the Enforcement Decree of the Farmland Act, whether or not the necessity of conservation as the excellent farmland, which is defined as the grounds for restriction on permission for diversion of farmland, is more than whether the application for farmland in this case is farmland actively being cultivated according to the real or economic conditions, the determination should be made on whether or not there is a need to continue conservation of farmland in the future in light

In light of the following facts: (a) 1 to 17, 1 to 7, 12, 18, 22, 1 to 25-1, 27, 30, 35-1 to 3, and 5-1 to 6-3, an application for the conservation of farmland is still made in the vicinity of the Seoul Metropolitan Area with the view of the fact that there is no need for the conservation and improvement of the surrounding area of the farmland for the sake of the conservation and improvement of the environment of the 6-year green area, and that there is no need for the conservation and improvement of the surrounding area of the farmland; (b) 1 to 6-1 to 3-1 to 6-1 to 6-1 to 6-2 to see that there is no need for the conservation and improvement of the surrounding area of the farmland; and (c) the installation of the remaining area of the farmland for the sake of the conservation and improvement of the land at the time of the application for the conservation and improvement of the 0-year green area.

Therefore, it is legitimate that the Defendant issued the instant disposition that rejected the instant application for the instant building permit on the grounds that it is highly necessary to preserve the application as farmland. Furthermore, the instant application and its surrounding farmland fall under the grounds for restrictions on the issuance of a permit to open land under Article 58(1)4 of the National Land Planning and Utilization Act. This part of the Plaintiff’s assertion that there was an error of deviation or abuse of discretionary authority, such as misconception of facts, is without merit.

(2) Whether the principle of equality is violated

In addition, even if the land to be compared in this case, which is used as a site for a large number of neighborhood living facilities and Dora complex on the north side of the application site as alleged by the Plaintiff, was farmland which had been initially implemented with the farmland located in the middle side of the application site, the entire purport of the pleading is added to the entry of No. 33 in this case and the entire purport of the pleading as a result of on-site inspection of this court, the land to be sub-section in this case is located adjacent to the road adjacent to the north side of the application site in this case and the forest and Doradora water adjacent thereto, and its size is not significant, while the application site in this case is connected with a large number of farmland in the south side of the application site in this case, it cannot be deemed that the geographical condition or neighboring environment are identical. Accordingly, even if the Defendant, as a result, did not regard the land to be treated differently with the owner of the land in this case as being in violation of the principle of equality of the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-sik

Judges private light;

Judges Kim Jong-chul