Plaintiff (Law Firm Roice, Attorneys Jeon Man-soo et al., Counsel for the plaintiff-appellant)

The head of Seo-gu Incheon Metropolitan City (Attorney Go-hee, Counsel for the plaintiff-appellant)

April 12, 2006

Incheon District Court Decision 2004Guhap3377 Decided August 25, 2005

1. Revocation of a judgment of the first instance;

2. On July 14, 2004, the Defendant’s provisional disposition on July 14, 2004 against the Plaintiff is revoked with respect to the building volumeing to 13,036 square meters in Seo-dong, Seo-gu, Incheon.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. On November 27, 1996, the Plaintiff purchased 82-2 and four parcels (in the case of the above land, it was divided into 83,036 square meters of miscellaneous land, Seo-gu, Incheon, Seo-gu, Incheon, Seo-gu; hereinafter the same shall apply) from 82-2 and 4 lots (in the case of the above land, it was combined with 13,036 square meters of miscellaneous land, Seo-gu, Incheon; hereinafter the same shall apply), which are natural green areas under the urban management plan, and obtained permission for changing the form and quality of the land as to 9,94 square meters of the instant land among the instant land for the purpose of creating a site for a driving school from the Defendant on December 31, 1996, and operated a driving school with the approval of the operation of a specialized driving school from the Commissioner of the Incheon Police Agency on August 22,

B. On June 5, 1998, the Mayor of Incheon Metropolitan City has a road of 30 meters in width as determined and publicly notified by Incheon Metropolitan City Notice No. 1998-118 on June 5, 199 (the second category 61 and garbage transport road). The south side of the above road and the north side of the road (39,000 square meters in south and 38,000 square meters on the north side) are designated as a green belt (green belt). The land of this case is adjacent to the buffer green belt on the north side of the above road, and there is no way to access the above road from the land of this case. On the other hand, the green belt of this case becomes a ice package, and is currently used for the passage of the present vehicle or people.

C. On February 19, 2004, the Plaintiff filed an application with the Defendant for a building permit to construct a golf practice hall with a total floor area of 3,910.99 square meters on the instant land (or the Plaintiff filed an application with the Defendant for a development permit for a new construction of a golf practice hall with respect to the instant land of 8,966 square meters (or alteration of form and quality) among the instant land). On July 14, 2004, the Defendant, upon deliberation, rejected the Plaintiff’s application for a building permit on the following grounds, on the ground as alleged by the Defendant.

[Ground of recognition] Unsatisfy, Gap evidence 2, Gap evidence 4 through 6, Gap evidence 3, 8, 9-1, 2, Eul evidence 1 through 4, the result of on-site inspection conducted by the court of first instance, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) In order to construct the instant land, the Defendant shall access the instant land to the road in accordance with the Building Act. However, according to the provisions of Article 19(2)2(a) of the Incheon Metropolitan City Ordinance on Urban Parks and Greenbelts, although the Plaintiff intends to use the instant green area as an access road leading to the said road, it shall not be permitted to occupy and use the green area upon obtaining permission to occupy and use the green area in the case where he intends to occupy and use it as a road under the Building Act with respect to the standards for permission to occupy and use the green area, and it shall not be allowed to use it as an access road after obtaining the permission to occupy and use the green area, and ② The instant land is located within the green area, and the surrounding development area including the instant land is more than 10,000 square meters, and more development activities including the surrounding development area (the area of land form and quality change) are impossible pursuant to Article 55(1)1(a) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680, Jan. 1

(2) As to securing access roads, the Plaintiff has long been used as access roads to the land of this case through the green area of this case, and the green area of this case has long been used as access roads to the land of this case. As to the green area occupancy stipulated by the Urban Park Act, it is necessary to construct a golf range in the land of this case, it is not necessary to obtain permission to occupy and use the green area of this case, and the designation of the green area of this case is either designation by mistake or invalid, and the designation of the green area of this case is <2 With respect to the development area of this case, a golf range is constructed in part of the land of this case which has already been permitted to change the form and quality and form, and the development area restriction provision in the green area is not applied. Even if the change of form and quality is accompanied by the family form and quality of land, the land of this case is already installed with infrastructure under Article 5(3)1 of the Enforcement Decree of the National Land Planning

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The part securing access roads

1) According to Article 12-2(1) of the Urban Park Act, and Article 6(2) of the Enforcement Decree of the same Act, with regard to whether the Plaintiff shall obtain permission to occupy and use a greenbelt under the Urban Park Act in order to use the instant green area as an access road to the instant land, it is necessary for the Plaintiff to install facilities, buildings, or structures other than facilities necessary to create a green belt, or to change the form and quality of land, or to cut down or cut bamboo trees, or collect soil and rocks, etc. from “within a green belt,” and the permission to occupy and use a green belt is necessary even when installing a access road passing across a green belt. However, as seen earlier, the Plaintiff is not required to construct a golf practice range on the instant land, but to perform acts necessary to obtain permission to occupy and use a green belt, such as building, etc. in the instant green belt, and the green belt in this case appears to have actually functioned as roads, such as providing the instant land and neighboring land, and thus, it is unnecessary for the Plaintiff to install access roads within the green belt.

2) In addition, Article 19(2)2(a) of the Incheon Metropolitan City Ordinance on Urban Parks and Greenbelts provides that where a person intends to occupy and use access roads crossing a green area for the purpose of using them as roads under the Building Act, it may not be permitted. However, in light of the contents of the above Act and subordinate statutes, the above provision appears to be premised on installing access roads in a green area, and where it is merely a use of the green area of this case, which actually functions as roads as in this case, it is not applicable.

3) Therefore, the Plaintiff does not need to obtain permission to occupy and use a green belt under the Urban Park Act and subordinate statutes regarding the green belt of this case. Thus, the Defendant’s disposition of this case based on the premise that the Plaintiff cannot obtain permission to occupy and use

(2) The portion exceeding the development area limit

1) The term “culatory green belt” and “natural green belt” are areas established in order to promote the improvement of urban scenery by preserving or improving the natural environment and preventing pollution and disasters in urban areas. The purport of Articles 56(1)1 and 58(1) of the National Land Planning and Utilization Act, Article 55(1)1(a) and (4) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 18680, Jan. 15, 2005) lies in promoting the balanced development and development of the national land by minimizing the scope of damage to natural green areas, and preserving the natural scenery and forests and minimizing their damage.

2) However, as seen earlier, the Plaintiff obtained the Defendant’s permission to change the form and quality of the instant land with respect to 9,94 square meters, and operated a driving school by constructing a building on the instant land and operating the driving school. Since the Plaintiff changed the type of business that is not in operation and constructed the driving school on the instant land, and then applied for a building permit to operate the same, the Plaintiff is merely seeking to construct a golf practice site by using part of the instant land, the change of the form and quality of which has already been completed.

Even if it is necessary to change the form and quality of the instant land for the construction of domestic and golf practice grounds, as long as part of the instant land for which the change of the form and quality was already permitted, it cannot be deemed that the change of the form and quality of a green area is contrary to the legislative intent of the statutes that restrict the change of the form and quality of a green area, and thus, it is not necessary to obtain

3) In a case where the Defendant again files an application for permission to change the form and quality of part of the existing area permitted to change the form and quality, it shall be determined whether the previous area permitted and the new application area exceed 10,000 square meters, which is the limit for permission to engage in development activities. However, this is merely an independent assertion contrary to the judgment

4) Therefore, the Defendant’s instant disposition is also unlawful on the ground that the Plaintiff’s instant application for the change of the form and quality exceeds 10,000 square meters, which is a restricted area in the

3. Conclusion

Therefore, the disposition of this case shall be revoked in an unlawful manner, and the judgment of the court of first instance is so unfair as to differ from the party members, and thus, it shall be revoked by accepting the plaintiff's appeal and it shall be so decided as per Disposition.

Judges Lee Sung-ho (Presiding Judge)