2013Guhap19 Revocation of Disposition of Illegal Development Activities Restoration to Original State

Plaintiff:

Songyang-dong at a permanent address

A male Dong at the place of service;

Tocheon-gun

Litigation Performers;

June 26, 2013

September 6, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of restoration to the original state against the plaintiff on March 23, 2012 is revoked.

1. Details of the disposition;

A. The Plaintiff is the owner of each real estate listed in the separate sheet. ○○○ is the owner of each real estate listed in the separate sheet, and ○○ is operating the cattle shed from 631m of the land for the stock farm from 353-2, 3,474m of the land for stock farm, 3,474m, and 353m of the same Ri 353- 3, 631m of the land for stock farm (hereinafter “the livestock shed of this case”).

B. On July 201, the Plaintiff constructed a structure of the sandbboard position panel structure (hereinafter “the instant structure”) of approximately 120 meters in length, approximately 8 meters in height, and approximately 0.1m in thickness, on the land, etc. listed in the separate sheet Nos. 1, 8, and 9 (hereinafter “each land of this case”), which is a planned control area, without permission from the Defendant, on the grounds that the Plaintiff prevents malodor generated in the instant stable, without permission for development.

C. In accordance with Articles 56(1) and 60(3) of the National Land Planning and Utilization Act, on the ground that the Defendant, on March 23, 2012, without permission for development activities, changed the form and quality of land (construction of structures) for the purpose of installing a fence without permission for development activities, the Defendant committed an act of altering the form and quality of land for the purpose of installing a fence (construction of structures).

15. Until March 25, 2012, the Plaintiff notified that it should be restored to the original state (hereinafter “instant disposition”). Meanwhile, the Plaintiff became aware of the instant disposition on March 25, 2012, but the Defendant did not notify the deadline for filing an administrative appeal at the time of the instant disposition (No. 11-proof No. 6).

D. The Plaintiff did not implement the restoration to its original state, and the Defendant on May 8, 2012, to the Plaintiff on June 2012.

10. By June 28, 2012, the Plaintiff notified the Plaintiff of the restoration to its original state by August 1, 2012.

E. Accordingly, on July 30, 2012, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Standing Committee, but the Gyeongbuk-do Administrative Appeals Commission dismissed the ruling on September 24, 2012, and the Plaintiff received the said ruling on October 8, 2012.

【Uncontentious facts, Gap’s 1 through 4, 6 through 14, Eul’s 1 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the structure of this case is about 120 meters in length, about 8 meters in height, about 15tton, about 96 meters in volume, and about 20 meters in horizontal projection area, it constitutes a structure under Article 56(4)3 of the National Land Planning and Utilization Act and Article 53 subparag. 2(b) main sentence of the Enforcement Decree of the same Act (hereinafter referred to as the "main sentence of this case"), and thus, the installation of the structure of this case is a minor act exempt from permission for development.

Meanwhile, the proviso of Article 53 subparagraph 2 (b) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter referred to as the "proviso of the Enforcement Decree of the National Land Planning Act") provides that the installation of a fence exceeding 2 meters high under Article 118 (1) 5 of the Enforcement Decree of the Building Act shall be excluded from the minor act that may not be permitted to obtain the permission of development. However, according to ① Article 83 (1) of the Building Act and Article 118 (1) 5 of the Enforcement Decree of the Building Act, a fence is limited to the structure of this case for the same purpose as a retaining wall. The structure of this case is installed for the purpose of protection,

Therefore, even if the Plaintiff did not obtain permission for development activities, the Defendant’s disposition of this case, which was made on a different premise, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) Article 56(1)1 of the National Land Planning and Utilization Act provides that a person who intends to engage in development activities, such as the construction of a building or the construction of a structure, shall obtain permission for development activities from the head of a Gun, and Article 56(4) of the same Act provides that a minor act prescribed by Presidential Decree may be conducted without obtaining permission for development activities, notwithstanding paragraph (1) of the same Article. The main text of the Enforcement Decree of this case provides that "by one place among minor acts prescribed by Presidential Decree, the construction of a structure, the weight of which does not exceed 150 tons, volume does not exceed 150 meters, volume does not exceed 150 meters, horizontal projection area does not exceed 75 meters," and the proviso to the Enforcement Decree of this case provides that "the construction of a structure falling under any of the subparagraphs of Article 118

Meanwhile, Article 83(1) of the Building Act provides that a person who intends to build a retaining wall, chimney, advertising tower, high-priced water tank, underground shelter, and other similar structures prescribed by Presidential Decree shall report to the head of a Si/Gun, etc., Article 118(1) of the Enforcement Decree of the Building Act provides that a structure to be reported to the head of a Si/Gun, etc. (referring to the construction separated from a building) pursuant to Article 83(1) of the Act shall be as follows. Article 118(1)5 of the Building Act provides that a structure to be reported to the head of a Gun, etc. shall be as follows. Article 118(1)5 of the Building Act provides that "a retaining wall or fence exceeding 2 meters high."

Therefore, as to whether the structure of this case falls under "the wall" under Article 118 (1) 5 of the Enforcement Decree of the Building Act, the above evidence and evidence Nos. 2 and 3 as well as the above acknowledged facts, and the following circumstances, which can be known by related Acts and subordinate statutes: ① according to the delegation clause of Article 83 (1) of the Building Act and other structures similar thereto, Article 118 (1) of the Enforcement Decree of the Building Act newly provides a funeral tower, commemorative tower, fence, steel tower, etc. which are not prescribed by the Act; ② Article 118 (1) 5 of the Enforcement Decree of the Building Act merely because Article 118 (1) 5 of the Building Act provides the retaining wall and fence, unlike other structures newly prescribed in the same paragraph, building permission is not easy to create a building site as it is in accordance with Article 83 (1) of the Building Act (hereinafter referred to as "the restriction provision on building site") and Article 83 (3) of the Building Act.

Article 11(5)2 of the Building Act provides that construction report for a structure shall be deemed as one (1) but (in the case of constructing a structure under Article 83 of the Building Act separately after a building is constructed, building report shall be required (Article 83(1) of the Enforcement Decree of the Building Act), that in the case of installing a wall with a height of at least 2 meters separate from the original building, a building report shall be required, and that there is no ground to limit the subject matter to the site. (5) Article 58 of the Building Act provides that where a building is constructed, a building shall be at least a certain distance from the building line and the borderline of neighboring sites. Article 118(3)5 of the Enforcement Decree of the Building Act provides that Article 58 of the Building Act does not apply mutatis mutandis to a structure under Article 118(1)5 of the Act. This provision means that a structure outside the building line may not be constructed near the building line, but is not limited to a structure outside the boundary line, and that is not subject to the definition of the wall in the Building Act.

Therefore, in order for the Plaintiff to install the instant structure, permission for development pursuant to Article 56(4) of the National Land Planning and Utilization Act is obtained, so the Plaintiff’s above assertion is without merit, and the Defendant’s disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges in order of the presiding judge

Judges Choi Jae-in

Judges' heavy defects

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.