Where an owner of land adjacent to the land has already obtained permission to divert farmland for the purpose of constructing a new building for the purpose of use of restaurant, and has filed an application for permission to divert farmland for the purpose of constructing a new building for the purpose of use of accommodation facilities, whether the said accommodation conflicts with the basic area for the restriction on new location in the special measures area for the conservation of water supply sources in the "Special Measures for the Conservation of Water Quality of the Sale and Yongsan-gu" No. 90-16 of the Public Notice of the Environment Management Office

The case holding that in case where the owner of land adjacent to the land has already filed an application for permission on the diversion of farmland for the purpose of constructing a new building for the purpose of restaurant use, the determination of whether each of the above environmental accommodation facilities violates the standard area for the said new special comprehensive measures as provided in Articles 10, 19, 20, and 22 of the former Framework Act on Environmental Policy (amended by Act No. 5454 of Dec. 13, 1997), Articles 4, 5 of the Addenda (amended by Act No. 4257 of Aug. 1, 1990), Articles 7, and 8 of the former Environmental Conservation Act (repealed by Article 2 of the Addenda of the Framework Act on Environmental Policy as of Aug. 1, 1990), and Articles 7, and 8 of the former Enforcement Decree of the same Act (amended by Act No. 4257 of Aug. 1, 190) and the total floor area of the above new special measures area as provided in the above Ministry of Environment No. 90-16.

Articles 10, 19, 20, and 22 of the former Framework Act on Environmental Policy (amended by Act No. 5454 of Dec. 13, 1997), Article 4 of the Addenda (amended by Act No. 4254 of Aug. 1, 1990), Article 5 of the Enforcement Decree of the Framework Act on Environmental Policy, Article 7, and Article 8 of the former Environmental Preservation Act (repealed by Act No. 4257 of Aug. 1, 1990)

Plaintiff (Law Office of Peace, Attorney Park Won-won, Counsel for the plaintiff-appellant)

Gwangju Gun (Attorney Yoon Sang-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 96Gu42613 delivered on July 31, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Summary of the reasoning of the judgment below

A. Grounds for the instant disposition

On September 12, 1995, the Defendant granted a permit to convert the farmland to other five persons, other than the Plaintiff, to build a general house and a warehouse with respect to 2,835 square meters of the 3,679 square meters of the Gyeonggi-do ( Address 1 omitted), previous Gyeonggi-do (hereinafter referred to as the “previous land”). Thereafter, the previous land was divided into 2,630 square meters prior to ( Address 1 omitted) and 205 square meters prior to ( Address 2 omitted), etc. (hereinafter referred to as the “instant land”), and the Plaintiff solely sought to convert the land of 860 square meters of the instant farmland into a site for an accommodation facility with a total floor area of 396 square meters of the said farmland (hereinafter referred to as the “instant accommodation facility”). However, the Defendant filed the instant application to alter the said permitted matters on March 24, 1997, but returned it to the Defendant on March 24, 199.

The special comprehensive measures publicly announced by the Minister of Environment (the Minister of Environment) in accordance with the Environmental Conservation Act (amended by the Framework Act on Environmental Policy, enacted by Act No. 4257, Aug. 1, 1990) with respect to the special measures area for the preservation of water quality of the arms and Cheonghoho Lake Lake, which is designated by Act No. 90-15, Jul. 19, 1990, shall be limited to buildings and other facilities with a total floor area of not less than 80 square meters (excluding warehouses and non-water discharge facilities), accommodation facilities with a total floor area of not less than 400 square meters, and new sites of food entertainment facilities with a total floor area of not less than 400 square meters, but exceptionally permitted only when meeting certain requirements for the discharge

The grounds for the instant disposition that the Defendant rejected the Plaintiff’s application are not permitted to build new accommodation facilities, etc. with a total floor area of at least 400 square meters in the said special measure area I where the instant farmland belongs, and to determine whether the said land was divided after July 19, 1990, which is the date of designation and public notice of the said special measure area, conflicts with the said restriction area by summing up the total floor area on the basis of the previous land in the said restriction area. The grounds for the instant disposition that the sum of the total floor area of the lodging facilities, etc. to be the prospective site after the said public notice exceeds the above basic area, as the new site for the instant accommodation facilities is restricted, and there was

B. Determination as to the legitimacy of the instant disposition

Even if accommodation facilities, etc. with a total floor area of not less than 400 square meters in the above notice, if the new site in the above special measure area I area is not prohibited entirely, but meets the required requirements for the discharge of sewage, it may be exceptionally permitted and accordingly a building permit therefor may be granted. Even if the total floor area of the accommodation facilities in this case does not reach the basic area for the restriction of the above notice, and even if the determination of whether the total floor area of the accommodation in this case does not in itself conflict with the basic area for the restriction of the above house, if the accommodation facilities in this case meet the requirements for the discharge of sewage under the above notice, the location of the accommodation facilities in this case can be allowed, so the disposition in this case which rejected the plaintiff's application on the premise that there is no realization, is unlawful, and therefore the plaintiff's claim in this case seeking

2. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the second ground for appeal

(1) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

The farmland in this case was divided into the farmland in this case and the farmland in this case and the farmland in this case and the farmland in this case and the farmland in this case and the farmland in this case and 823 square meters prior to the aforementioned public announcement were owned by Nonparty 1. Nonparty 2 obtained the permission to convert the farmland in this case into the land in this case and the land in this case and the land in this case and the land in this case were divided into 844 square meters prior to the above public announcement. Nonparty 2 obtained the permission to convert the farmland in this case for the purpose of constructing a building with a total floor area of 515.2 square meters, including the total area of 267.6 square meters in restaurants, etc., which is a total area of 610.71 square meters in the previous land, prior to the Plaintiff’s application for the farmland in this case.

The farmland of this case was transferred to the plaintiff et al. at the time of the initial permission to divert farmland to the plaintiff et al., or at the time of the permission to divert farmland to the above non-party 2 and the permission to alter the above non-party 2, but all of the land for exclusive purpose was owned by the above non-party 1. The farmland of this case was later transferred to the plaintiff et al. before the application of this case. They appear to be adjacent to the plaintiff et al. in terms of the size, purpose of use and the size of the site that the plaintiff and the above non-party 2 wanted to build each land adjacent to each of the above non-party 2, which would be able to operate as one place of business, and if the total floor area of the building or the area of the restaurant among the total floor area of the building to be constructed by the above non-party 2 or the area of the restaurant exceeds the basic area for the restriction of ordinary buildings

(2) If there are circumstances, in light of the purport of Articles 10, 19, 20, and 22 of the former Framework Act on Environmental Policy (amended by Act No. 5454 of Dec. 13, 1997), Article 4 of the Addenda (amended by Act No. 4257 of Aug. 1, 1990), Article 5 of the Enforcement Decree of the same Act, Articles 7 and 8 of the Environmental Preservation Act prior to the repeal, etc., whether or not the accommodation of this case conflicts with the basic area for new location limit under the above public notice does not constitute only the total floor area of the accommodation of this case, but also the total floor area of the building for exclusive purpose of the above public notice is to be determined by adding it to the total floor area of the accommodation of this case. Accordingly, the court below erred in the misapprehension of legal principles as to the new site limit under the above public notice.

B. Ground of appeal No. 1

According to the above public notice and detailed comprehensive measures, in principle, new sites for accommodation facilities and food accommodation facilities in the special measures area I shall be exceptionally allowed, but it shall be limited to cases where wastewater flows into neighboring sewage treatment plants or public sewage treatment plants (hereinafter referred to as "sewage treatment plants and public sewage treatment plants"), and the court below should have determined whether the installation of wastewater treatment facilities and public sewage treatment zones approved under Article 6 of the Sewerage Act (amended by Act No. 5300, Mar. 7, 1997) were unlawful because it did not meet the necessary conditions for the public sewage treatment facilities and public sewage treatment zones (hereinafter referred to as "the sewage treatment area and public sewage treatment zones") for the purpose of the public sewage treatment facilities of this case for the reason that it did not meet the necessary conditions for the public sewage treatment facilities of this case for the purpose of the public sewage treatment facilities of this case, and thus, the court below should have determined whether the existing wastewater treatment facilities and public sewage treatment zones could be found to be unlawful for the reason that it did not violate the necessary conditions for the public sewage treatment facilities of this case.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)