2015Du524320152432 Application for the designation of a liquefied petroleum gas filling business operator within a development restriction zone

Revocation of Elimination of Disturbing Measures, etc.

Plaintiff:

Attorney Full-time Training, Counsel for the defendant

Head of the Busan Metropolitan Government Maritime Affairs Office

Law Firm Samyang, Attorneys Song-won et al., Counsel for the defendant-appellant-appellant

Busan High Court Decision 2015Nu21322 Decided August 28, 2015

January 28, 2016

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

The grounds of appeal are examined.

1. (1) Based on the provisions of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the "Act on Special Measures for Development Restriction Zones") and the Enforcement Decree thereof, the Defendant publicly announced the installation plan and installation standards for automobile charging stations, resting areas (hereinafter referred to as the "instant public notice") to be placed within development restriction zones around June 16, 2014. (2) The instant public notice is “public notice” pursuant to Article 12 of the Act on Special Measures for Development Restriction Zones, Article 13 of the Enforcement Decree of the same Act, and Article 7 of the Enforcement Rule of the same Act, to preserve development restriction zones in order to enhance the convenience of residents in living and improve their income, the Defendant sets forth the standards for installation of liquefied petroleum gas charging stations, resting areas for use of automobiles and for use of liquefied petroleum gas to be placed in development restriction zones, Article 2 of the Act on Special Measures for Development Restriction Zones provides that the instant public notice shall be made within the scope of the instant public notice, such as the instant facility standards and installation of purified petroleum gas 1).

The section of the road in front of the Seodaemun-gu, the section of the road in front of thebuk-gu, the section of the road in front of the East-gu, and the section in front of the Southern-gu

(3) On July 2, 2014, the Plaintiff filed an application with the Defendant for designation of a liquefied petroleum gas charging business entity on the following grounds: (a) Busan Shipping Daegu ( Address omitted) and six parcels (limited to the section No. 5 of the instant placement plan; hereinafter referred to as “the instant application site”); (b) on July 25, 2014, the Defendant filed an application with the Defendant for a new construction report on the following grounds: (c) on the ground that the Plaintiff’s application was adjacent to the main entrance of the instant market, which is a large-scale public-use facility used by many citizens and distribution workers, to approximately 20 meters; (d) on the ground that the instant application is likely to undermine public safety and interests when gas (explout) accidents occur; and (e) subsequent to the instant construction report, the Plaintiff filed an application with the Defendant for a new construction report on the following grounds: (e) the Plaintiff’s return of the instant application to the Defendant on July 16, 2014 (hereinafter referred to as “instant disposition No. 1”).

(4) The instant market is 151,642 square meters in the size of the site, approximately 80,028 square meters in the total floor area of the building, and there are four entrances in the area. Among them, the entrance of the south door is located across the five-lane road, and approximately 30 meters away from the instant application site and about 75 meters in the building of the instant market. Meanwhile, the content of the instant application is about 9 meters away from the instant application site and the instant building. Meanwhile, the details of the instant application are installed with a facility for filling liquefied petroleum gas, which is installed with an underground burial storage facility of about 19.9 tons in a liquefied petroleum gas, and the former Safety Control and Business of Liquefied Petroleum Gas Act (wholly amended by Act No. 13089, Jan. 28, 2015; hereinafter referred to as the “former Liquefied Petroleum Gas Act”) and its subordinate statutes meet the facility standards, such as the separation distance

B. Under such factual premise, the lower court determined that the Defendant’s rejection of the application on the ground that “the Defendant would not refuse to grant permission for the installation of gas charging stations on the ground that the instant application is located adjacent to the instant market, and that it would undermine the public safety and interest in the event of a gas (explosion) accident would result in infringing the Plaintiff’s interest, who acted in trust with the above statement of opinion, on the ground that: (a) the Defendant’s rejection of the application on the ground that the instant application is adjacent to the instant market, and that the Plaintiff’s return of the application on the ground that “the public safety and interest might be harmed in the event of an accident involving gas (explosion) accident would result in infringing the Plaintiff’s interest by acting in trust with the above statement of opinion.”

Furthermore, the court below held that each of the dispositions of this case is unlawful on the ground that it is not sufficient to recognize the grounds for disposition of Article 4 (1) 1 of the former Liquefied Petroleum Gas Act, on the ground that the distance between the building of the market of this case and the site of this case (75 meters) exceeds 48 meters as stipulated in the Enforcement Rule of the same Act, (2) there is no evidence to find that there is a high possibility of traffic accident even if gas filling is caused in the application of this case, and (3) there is no evidence to support the fact that there is no result of technical review by the Korea Gas Safety Corporation and measures such as installation of fire walls by the plaintiff, and there is no evidence to prove that there is considerable damage to the users of the market of this case due to flame caused by explosion, etc., despite the fact that there is no evidence to acknowledge the grounds for disposition of Article 4 (1) 1 of the former Liquefied Petroleum Gas Act.

2. However, we cannot agree with the judgment of the court below in the following respect.

A. (1) In general in administrative legal relations, in order to apply the principle of protection of trust to an administrative agency's act, first, the administrative agency's public opinion that is the object of trust to an individual, second, the administrative agency's public opinion that is the object of trust to the individual is justifiable and trusted to the individual, and third, the individual should have trusted the opinion name and conducted any act corresponding thereto. Fourth, by the administrative agency's disposition contrary to the above opinion name, it would result in an infringement of the interest of the individual who trusted the opinion name, and last, if it takes an administrative disposition following the above opinion name, it should not be likely to seriously undermine the public interest or the legitimate interest of a third party (see Supreme Court Decision 2009Du2980, Nov. 24, 201).

(2) However, by prescribing matters necessary for efficiently managing development restriction zones, such as designation of development restriction zones, restrictions on activities in development restriction zones, support for residents, purchase of land, and other development restriction zones, the purpose of the Act is to prevent urban disorder and ensure the healthy living environment for citizens by preserving the natural environment surrounding cities (Article 1) and Article 12 (1) 1 (e) of the Act is to ensure the designation and management of development restriction zones with permission from administrative agencies in cases of "facilities for residential, living convenience, and livelihood of residents in development restriction zones", but in cases of "facilities for residential, living convenience, and living of residents in development restriction zones", the Act shall be construed as "construction with permission from administrative agencies." Special cases concerning the designation and management of development restriction zones in the Gu with respect to which permission is prescribed by delegation under paragraph (8) of the same Article.

Article 13(1) [Attachment 1](e) of the Enforcement Decree of the Measures Act (amended by Presidential Decree No. 25650, Oct. 8, 2014); Article 7 of the former Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 183, Feb. 5, 2015) provides that an administrative agency shall establish a placement plan to maintain a certain interval in consideration of the traffic volume of the relevant road, convenience in the use of the facilities, etc., and accordingly, allow installation of a liquefied petroleum gas charging station for motor vehicles in a development restriction zone only where it is inevitable to install an additional facility due to the construction or expansion of a road, significant increase in traffic volume, etc.

(3) The following circumstances are revealed in light of the language and purport of the relevant Acts and subordinate statutes, namely, (i) the instant public notice was established pursuant to the development restriction zone laws and regulations; (ii) the Development restriction zone law aims to prevent any disorderly expansion of cities by prescribing matters necessary for the efficient management of development restriction zones and to ensure the healthy living environment for urban citizens by preserving the natural environment surrounding the city; and (iii) according to the standards for establishing a plan for establishing a liquefied petroleum gas charging station, it does not provide for considering the preservation of development restriction zones, traffic volume, convenience in the use of facilities, etc., and the risk of disaster due to the installation of a liquefied petroleum gas charging station, and (iv) the public notice itself does not stipulate that the permission for a charging station and facility standards for the instant public notice must conform to the standards of the relevant Acts and subordinate statutes, such as the Liquefied Petroleum Gas Act (Article 4(5)); and (iii) it is difficult to view the Defendant’s refusal to establish a development restriction zone to include the instant public notice in the road or its adjacent market for the instant case’s construction of the instant public notice.

Therefore, among the reasons cited by the Defendant, the purport of the disposition, which includes the “place adjacent to the market of this case” is included, and each of the dispositions of this case cannot be deemed to violate the principle of trust protection.

B. (1) Article 3(1) of the former Liquefied Petroleum Gas Act provides that a person who intends to operate a liquefied petroleum gas filling business (hereinafter referred to as " charging business") shall obtain permission from the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu (referring to an autonomous Gu; hereinafter referred to as the "head of a Si/Gun/Gu") for each place of business, and Article 4(1) provides that the head of a Si/Gun/Gu shall grant permission except for specific cases, such as "where it is deemed that the details of the application for permission or alteration of charging business are likely to hinder the protection of the people's lives and property and the prevention of disasters," and Article 4(2) provides that detailed matters concerning the requirements for permission under subparagraphs 1 through 3 shall be prescribed by municipal ordinance of the relevant local government. Meanwhile, Article 3(4) of the former Liquefied Petroleum Gas Act provides for technical standards for filling, collective supply, and sale of liquefied petroleum gas and Article 20 (1) of the former Enforcement Rule.

9. Article 10(1)1 of the former Liquefied Petroleum Gas Act provides that facility standards and technical standards for filling liquefied petroleum gas under Article 3(4) of the same Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83) shall be set by [Attachment 3]. [Attachment 3] provides for the separation distance between the storage facilities and the boundary of the place of business among liquefied petroleum gas charging facilities and the interior distance to the boundary of the place of business and the protection facilities. (2) Since the former Liquefied Petroleum Gas Act separates the criteria for permission for filling business and the facility standards and technical standards, all of the criteria are allowed to conduct filling business. Furthermore, whether the case constitutes “where it obstructs the prevention of disasters and the prevention of disasters to the lives and property of citizens” should be reasonably determined by taking into account the characteristics of the relevant liquefied petroleum gas, the population density of the day-to-day buildings and adjacent buildings in which filling places are installed, the structure and characteristics of the relevant building, the degree of safety accidents or accidents of liquefied petroleum gas, etc.

In addition, in light of the relevant laws and regulations including the Development Restriction Zone Act and the Liquefied Petroleum Gas Act, permission for liquefied petroleum gas-related business in a development restriction zone for its own use as an indefinite concept, it shall be deemed that the administrative agency has discretion in determining whether to grant permission. If administrative acts are classified into continuous and discretionary acts, judicial review as to both parties shall be based on the basis of the principle of fact-finding and the interpretation and application of the relevant laws and regulations in the case of the former, and the court shall determine the legitimacy of the judgment made by the administrative agency in light of the conclusion. However, in the latter case, it is difficult to consider whether the administrative agency’s deviation and abuse of discretion without drawing its independent conclusion in light of the above legal principles, and it is difficult to view that the Plaintiff’s application was made in violation of the former Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Enforcement Decree of the same Act and the Presidential Decree of the same.

C. Nevertheless, on different premise, the lower court determined that each of the instant dispositions was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the principle of trust protection and the interpretation and application of the requirements for permission of liquefied petroleum gas filling business under the Development Restriction Zone Act, thereby adversely affecting the conclusion of the judgment. 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.

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-suk

Justices Cho Jong-hee