In cases where the relevant Acts and subordinate statutes were amended and enforced before a disposition is made after filing an application for authorization, whether the disposition of non-permission based on the amended Acts and subordinate statutes and permission standards may be deemed unlawful (negative in principle), and where there is room to restrict the application of

Article 58(1)4 and (3) of the National Land Planning and Utilization Act; Article 56(1) [Attachment Table 1-2] 1(d) and 2(a) of the Enforcement Decree of the National Land Planning and Utilization Act; Article 1 of the Administrative Litigation Act [general Administrative Disposition]

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Han-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff (Attorney Doksung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on May 1, 201

Gwangju High Court Decision 2019Nu1826 decided May 27, 2020

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

The grounds of appeal are examined.

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On January 31, 2018, the Plaintiff filed an application with the Defendant for a building permit that included the legal fiction of the relevant authorization, such as the permission for development activities, in order to construct a graveyard-related facility (hereinafter “animal-related facility of this case”) with the building area of 237.49 square meters, total floor area of 453.56 square meters, total floor area of 453.56 square meters, and one graveyard-related facility (hereinafter “animal-related facility of this case”) with the second floor area of 237.49 square meters (hereinafter “instant application”).

(2) The instant application is located across a six-lane radius, and is adjacent to an area where housing and commercial buildings are concentrated, and the shortest distance was 110 meters.

(3) On September 7, 2018, the Defendant rendered the instant refusal disposition rejecting the instant application on the following grounds.

(1) The animal crematory facilities of this case may cause environmental pollution, destruction of the ecosystem, hazards, etc. in the surrounding area (hereinafter referred to as “reasons for first disposition”).

(2) Natural scenery and incubation are inappropriate for the relationship with the surrounding area (hereinafter referred to as "reasons for secondary disposition").

③ Article 17(2)1 of the former Ordinance on Jeonju City Urban Planning (amended by Ordinance No. 3466, Feb. 28, 2018; amended by Ordinance No. 3537, Apr. 19, 2019) provides that “The instant application may not engage in development activities to install graveyard-related facilities, etc. under subparagraph 26 of the attached Table 1 of the Enforcement Decree of the Building Act (hereinafter referred to as “instant Ordinance”).

④ In the deliberation of the Urban Planning Committee at Jeonju, the instant application was rejected (hereinafter “instant ground for disposition 4”).

B. The key issue of the instant case is whether the grounds for disposition No. 3 are recognized, and, in such case, whether the Defendant has the discretion to issue permission for development activities with respect to the instant application.

2. Relevant provisions and legal principles

A. Article 58(1)4 of the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) provides that the details of an application for permission for development activities shall be in harmony with the actual use condition or land use plan of neighboring areas, the height of buildings, gradient of land, status of trees, water drainage, etc. Paragraph (3) of the same Article provides that the standards for permission shall be prescribed by Presidential Decree in consideration of the characteristics of the area, development status of the area, current status of infrastructure, etc. The standards for permission shall be prescribed by Presidential Decree. Article 56(1) [Attachment 1-2] subparagraph 1(d) (1) and (2) of the Enforcement Decree of the National Land Planning and Utilization Act provides that the buildings or structures constructed or installed by development activities shall not damage the natural landscape and aesthetic view of surrounding areas, and shall be in harmony with the height, form and color thereof, if an urban or Gun planning plan is formulated, and shall not be likely to cause any environmental pollution, vibration, soil, and water pollution, etc. (see, e.g., prescribed by Presidential Decree No., 20000).

Article 17(2)1 of the former Ordinance on Urban Planning in Jeonju-si (amended by Ordinance No. 3466, Feb. 28, 2018) upon delegation stipulated that development activities cannot be conducted in areas where “within 200 meters from the boundary of a district determined as a natural village district” may not be conducted by installing graveyard-related facilities, etc. referred to in subparagraph 26 of the Enforcement Decree of the Building Act (hereinafter “former Ordinance provisions”).

However, the phrase “after amendment” amended and implemented on February 28, 2018 stipulated that “within 200 meters from the boundary of a residential densely-populated area in which at least ten residents reside or from the boundary of a district determined as a natural village district where a graveyard-related facilities, etc. are prohibited,” thereby expanding the scope of a restricted area for development activities. There was no special transitional provision regarding cases where an application for permission for development activities had already been filed prior to the enforcement thereof.

B. In principle, in a case where the pertinent statutes were amended and enforced after the application for authorization was made and the application for authorization was made before the enforcement of the amended provisions, barring special provisions on the past provisions, an administrative disposition shall be made based on the relevant laws and regulations in force at the time of the disposition. Therefore, the non-permission disposition is not unlawful in accordance with the amended Acts and subordinate statutes and the standards for permission, unless there is a change in the relevant Acts and subordinate statutes and the standards for permission since the competent administrative agency's acceptance of the application for authorization without justifiable grounds while delaying the disposition. However, in a case where the public trust on the existence of the permit prior to the amendment is deemed more worthy of protection than the public interest demand on the application of the amended standards for permission, the application of the amended standards for permission may be limited (see Supreme Court Decision 2003Du3550, Jul. 29, 2005, etc.).

3. Determination as to the instant case

A. The lower court determined that the instant rejection disposition was unlawful on the following grounds by violating the principle of protection of trust or by abusing or abusing discretion.

(1) Since the Plaintiff’s trust in the existence of “before the amendment clause” is more worthy of protection than the public interest demand for the application of “after the amendment clause,” the application of this case shall not be subject to the application of “after the amendment clause,” and the grounds for disposition 3 shall not be acknowledged.

(2) It cannot be acknowledged that the establishment and operation of the animal crematory facility of this case may cause environmental pollution or destruction of the ecosystem in the vicinity, and even if the animal crematory facility of this case is constructed, it is deemed that there would be no special natural landscape or deterioration of surrounding landscape in both sides of the site of the application of this case. Thus, the ground of first disposition and the ground of second disposition are not recognized.

(3) The reasons why the Urban Planning Committee decided to reject the instant application in Jeonju are not all reasonable. Moreover, the Defendant is not bound by the deliberation result of the Urban Planning Committee when determining whether to permit development activities, and the reasons for Disposition 4 is not recognized.

B. However, examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, it is difficult to accept the lower judgment’s aforementioned determination.

(1) A local government has a wide range of discretion to determine the detailed criteria for permission of development activities by municipal ordinance. Based on such broad discretion, the term “after amendment provisions of the National Land Planning and Utilization Act” means, within the scope of delegation under the National Land Planning and Utilization Act, the local government has embodied the detailed criteria within the scope of delegation in order to achieve public interest purposes to harmonize animal crematory facilities, etc. in the former city with the surrounding environment and landscape and to prevent environmental pollution

The phrase “after amendment of the National Land Planning and Utilization Act” is somewhat strengthened the separation distance standard in which development activities are restricted in order to achieve the above public interest objectives pursued by the National Land Planning and Utilization Act and to protect the environmental rights of neighboring residents in accordance with the regional characteristics. It cannot be deemed that the separation distance standard prescribed by the “after amendment of the National Land Planning and Utilization Act” is contrary to the National Land Planning and Utilization Act and the

In addition, just because the term “pre-amended ordinances provisions” was enforced at the time of the instant application, it cannot be deemed that the Defendant granted the Plaintiff any protection-value trust as to whether to grant permission at the time of the instant application. This is because the content of an application for permission of development meets the separation distance criteria, the examination is not exempted or the issuance of permission of development is not guaranteed, on the ground that the content of an application for permission of development meets the separation distance criteria.

(2) Rather, according to the records, the previous state Mayor included the specific contents of the “amended Ordinance” in the pre-announcement of December 15, 2017, for the purpose of “an efficient operation of municipal ordinances by amending the delegated matters in the National Land Planning Act, supplementing deficiencies arising from the operation of municipal ordinances,” and thereby promoting the efficient operation of municipal ordinances. Accordingly, in the situation where the pre-announcement of the fact that the standard of separation distance is strengthened to the recipients of municipal ordinances to be amended in the future, the Plaintiff filed the instant application on January 31, 2018. As such, it is difficult to view that as of the time of the instant application, the protection value of the Plaintiff’s trust in the continuation of the “amended Ordinance provisions” is larger.

(3) The Plaintiff is anticipated to be entitled to obtain permission for development activities from the Defendant before the instant application was filed, and purchased the instant application site, and entered into a design service contract for the construction of the instant animal crematory facility. However, as long as the Plaintiff failed to commence construction works due to the instant rejection disposition, the Plaintiff may recover the purchase fund by selling the instant application site. Thus, it is difficult to view that the instant rejection disposition causes a significant disadvantage or financial loss to the Plaintiff due to the instant rejection disposition.

(4) In light of the fact that the amendment of the municipal ordinance was enforced after a weak month from the time of the filing of the instant application, and the Defendant rendered the instant disposition after about six months from the time of deliberation by the urban planning committee, etc., the Defendant cannot be deemed to have delayed the handling of the instant application without justifiable grounds.

(5) In short, since the Plaintiff’s trust in the existence of the former Ordinance provisions cannot be deemed as more protected than the public interest pursued by the “amended Ordinance provisions,” the Defendant’s application of the instant application does not constitute a violation of the principle of trust protection, which is the law at the time of disposition. The term “after amendment provisions” is an ordinance enacted based on delegation of superior laws and regulations and is externally binding. If the instant application falls under the scope of “area within 200 meters from the boundary of residential congested areas where residents reside,” the act of installing animal crematory facilities is prohibited by the “after amendment provisions,” and thus, the Defendant, the administrative agency at the time of the preceding State, is bound to deny the instant application pursuant to the “after amendment provisions,” and there is no discretion to do so.

C. Nevertheless, the lower court determined that the grounds for the instant disposition were not recognized on the ground that the “Ordinance provisions after the amendment” cannot be applied to the instant application, and furthermore, determined that the instant rejection disposition was an illegal disposition that deviates from and abused discretionary power, on the grounds that both the grounds for the first, second, and fourth disposition are not recognized. In so doing, the lower court erred by misapprehending the legal doctrine on the statutes and the principle of protection of trust, etc. applicable to the case where the criteria for permission were modified after the application for permission, thereby failing to exhaust all necessary deliberations,

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim H-soo (Presiding Justice)