[1] Requirements for determining urban planning facilities by an administrative agency as to a golf course and for recognizing the legality of the authorization of an implementation plan, and the standard for determining whether a sports facility constitutes a facility used by the general public in operating methods, etc.

[2] In a case where the competent Mayor publicly announced the implementation plan of an urban planning facility project to establish a membership golf course with Gap corporation as the project implementer according to the determination of the urban planning facility project concerning golf courses, the case holding that the above approval disposition is unlawful, but its defect cannot be deemed as null and void as it is serious and obvious

[1] In full view of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201); the Enforcement Decree thereof (amended by Presidential Decree No. 24443, Mar. 23, 2013); the former Rules on the Determination, Structure and Installation Standards of Urban Planning Facilities (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; the Enforcement Decree thereof; and the authorization and disposition of an implementation plan for an urban planning facility project is to realize a specific urban planning facility project in accordance with the determination of an urban planning facility project. Determination of an urban planning facility project with respect to a golf course is legitimate only in cases of a sports facility installed to provide use by the general public; the administrative agency’s approval of an implementation plan should be deemed to have been granted based on the economic feasibility of the public’s use of the facility; the scale, structure, and installation standards of the facility; and the method of the public’s use.

[2] In a case where the competent Mayor in accordance with the determination of an urban planning facility project concerning a golf course among sports facilities and publicly announced the authorization of an implementation plan for an urban planning facility project with Gap corporation as the project implementer, the case holding that the determination of an urban planning facility project is legitimate only to the extent that it is deemed that the determination of an urban planning facility project was made with respect to a golf course installed for the purpose of public use, and that the use of a golf course is limited to a person other than the person who has become a member, barring any special circumstance, barring any special circumstance, the authorization of an implementation plan for the above urban planning facility project is unlawful since it goes beyond the scope where the legality of the determination of an urban planning facility project is recognized. However, the determination of an urban planning facility project with respect to a golf course is limited to a golf course, which is "sports facilities installed for the purpose of public use," and it is difficult to see that there was no room for dispute over interpretation because the legal principles on the operation of a golf course with respect

[1] Article 2 subparag. 6(d), Articles 30, and 88 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 2(1)4, and (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 99 of the former Rules on the Standards for Determination, Structure, and Installation of Urban Planning Facilities (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; Article 2 [Attachment 1] of the former Enforcement Decree of the Installation and Utilization of Sports Facilities Act (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Apr. 1, 201; Ordinance No. 942, Apr. 1, 2014>

Plaintiff 1 and four others (Law Firm Han, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Chuncheon Market

United Nations Co., Ltd. (Law Firm LLC, Attorneys Credit Guarantee, et al., Counsel for the defendant-appellant)

Seoul High Court Decision (Chuncheon) 2011Nu1172 decided May 16, 2012

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the assertion on land suitability assessment

On April 208, 2008, which was the time of the land suitability assessment on the project site of this case, the field classification was based on the most recent clinical level in 2003, and it was recognized that there was no land of 4 permanent level or higher in the project implementation district of this case, and that only the evaluation system Ⅱ applies to the assessment system where the assessment system of land suitability assessment was formulated. Furthermore, the lower court rejected the Plaintiff’s assertion that even according to the assessment system Ⅱ, the land suitability assessment was illegal, based on the factual basis acknowledged, based on the gradient, elevation, high level, high level of ecological and natural map, the ratio of conservation district, the ratio of conservation district, the distance between the public regulatory area, and the distance between the arable area, which were the most recent clinical level in 2008, and that the Defendant unfairly adjusted the above standards in favor of the Defendant, or there was no special legal defect in the construction of urban planning facilities. In addition, the lower court rejected the Plaintiff’s assertion that it was unlawful in the process of land suitability assessment of the area of the public forest.

In light of the relevant legal principles and records, the above judgment of the court below and the fact-finding that led to its judgment are just and acceptable. Contrary to the allegations in the grounds of appeal, there is no illegality that affected the conclusion of the judgment by recognizing facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles on defects in land suitability

2. As to the assertion on the requirements for landowners’ consent

The lower court determined that it is difficult to deem that the authorization of the implementation plan for the instant urban planning facility project is null and void as a result of significant and objective defects in the requirements for consent of landowners at the time of the Defendant’s designation of implementer. In light of the relevant legal principles and records, the lower court’s determination is just and acceptable, and it did not err by misapprehending the legal doctrine on the requirements for consent of landowners, as otherwise asserted in the grounds of appeal

3. As to the assertion on public works

A. In full view of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201); the Enforcement Decree thereof (amended by Presidential Decree No. 24443, Mar. 23, 2013); the former Rules on the Determination, Structure, and Installation Standards of Urban Planning Facilities (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 394, Nov. 1, 201); Article 3 of the Installation and Utilization of Sports Facilities Act; the Enforcement Decree thereof; and the fact that the authorization and disposition of an implementation plan for an urban planning facility project with respect to an urban planning facility project is to realize a specific urban planning facility project in accordance with the determination of an urban planning facility project, the determination of an urban planning facility project with respect to a golf course may be deemed legitimate only where it is a sports facility installed to provide the general public for use; and where an administrative agency approves the determination of the implementation plan for the urban planning facility project, it shall be deemed that the implementation plan can be recognized only when it provides the sports facilities to the general public use.

In addition, whether a sports facility constitutes a facility for the use of the general public in the operating method, etc. shall be determined with a focus on whether the possibility of use of the facility is substantially open to the general public, by comprehensively taking into account the numbers of the general public who conduct sports activities using the type of facility, the operational feasibility of the facility, the economic burden required for the use of the facility, the scale of

B. According to the reasoning of the judgment below, the determination of urban planning facilities of this case is related to golf courses, etc. among sports facilities under the aforementioned relevant Acts and subordinate statutes, and the defendant, according to the above decision, established a membership golf course with the defendant joining the defendant as the project implementer and established a membership golf course of 27 holes.

In light of the aforementioned legal principles, the determination of the instant urban planning facility project may be deemed lawful only to the extent that it is recognized as having been conducted with respect to a golf course installed for the use of the general public. However, in light of the general economic level of our society, any membership golf course can be used when anyone obtains membership only in the form of a membership fee, but its use is limited to a person other than the person who has become a member. Therefore, barring any special circumstance to view otherwise regarding its operating method, it is difficult to regard it as “sports facilities installed for the use of the general public.” Therefore, the authorization of the instant urban planning facility project that is a membership golf course as an urban planning facility project exceeds the scope to which the legality of the determination of the instant urban planning facility project, which is the basis thereof,

Nevertheless, the lower court determined to the effect that a membership golf course under the implementation plan of the instant urban planning facility project conforms to the determination of the instant urban planning facility. It erred by misapprehending the legal doctrine on the meaning of a golf course subject to the determination of the urban planning facility project, as well as whether the implementation plan based

C. However, in order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively obvious and serious in violation of the relevant laws and regulations (see, e.g., Supreme Court Decision 2002Du12618, Jun. 10, 2004). However, there was no legal principle suggesting that the method of operation, etc. of sports facilities should be determined mainly on the possibility of actual use of the general public, considering not only formal matters such as qualifications for use of facilities, but also the cost of use of facilities, etc., until the time of the instant disposition for authorization of the implementation plan for urban planning facility project in question. Rather, there was no room to interpret that a membership golf course constitutes a sports facility to be installed to provide for use by the general public because it does not impose any restriction on general membership, and there was a possibility that it is a large number of urban planning facility projects with the construction of a membership golf course.

In full view of the foregoing circumstances, at the time of the authorization of the implementation plan of the instant urban planning facility project, the determination of the urban planning facility project concerning the instant golf course is limited to the golf course, which is “sports facilities installed to provide for use by the general public,” and it is difficult to deem that there was no room for dispute over the interpretation of the legal principles that the membership-based golf course is unlawful because it is clearly stated that it does not comply with such legal principles. Therefore, the instant urban planning facility project authorization disposition cannot be deemed as

D. Ultimately, the lower court’s conclusion that it was reasonable to accept the claim to nullify the invalidity of the authorization of the implementation plan for the instant urban planning facility project is not that affected the judgment of the lower court. The allegation in the grounds of appeal on this part is without merit

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)