In a case where an application for a building permit by which permission for development activities regarding construction of a building under the National Land Planning and Utilization Act is deemed granted does not meet the criteria for permission for development activities under the National Land Planning and Utilization Act, whether the permission-granting authority may refuse such application (affirmative), and whether the same applies to a permission for change of a building permit by which permission for development is deemed changed under Article 16(3) of the Building Act

In full view of Articles 56(1), 57(1), and 58(1)4 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”); Articles 51(1)1, 56(1) [Attachment Table 1-2] subparag. 1(d) and 2(a) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”); Articles 11(1), 11(5)3, and 12(1) of the Building Act, where the construction of a building constitutes development activities under the National Land Planning and Utilization Act, a permitting authority to grant a building permit should verify the standards for the development permission under the National Land Planning and Utilization Act as one of the relevant statutory grounds that are contrary to and promoted to a building permit. Thus, if a building permit application for construction permission under the National Land Planning Act does not comply with the standards for permission for development permission prescribed under the National Land Planning Act, the permission for development permission may be refused.

Articles 56(1), 57(1), and 58(1)4 of the National Land Planning and Utilization Act; Articles 51(1)1, and 56(1) [Attachment Table 1-2] 1(d) and 2(a) of the Enforcement Decree of the National Land Planning and Utilization Act; Articles 11(1) and (5)3, 12(1), and 16(3) of the Building Act

Plaintiff

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Corporation, Attorneys Park Sim-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu58869 decided February 24, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. A building permit holder shall grant a building permit under the relevant Act and subordinate statutes unless the application for a building permit is in conflict with any restriction prescribed by the relevant Act and subordinate statutes, and notwithstanding the absence of a serious public interest, permission to a person meeting the requirements shall not be denied on the grounds other than the grounds for restriction prescribed by the relevant Act and subordinate statutes (see Supreme Court Decisions 92Nu3038, Dec. 11, 1992; 2009Du8946, Sept. 24, 2009, etc.).

2. According to Article 56(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and Article 51(1)1 of the Enforcement Decree thereof (hereinafter “Enforcement Decree of the National Land Planning Act”), a person who intends to engage in an act falling under construction of a building under Article 2(1)2 of the Building Act (including a roof and columns or walls among structures settled on land, and facilities attached thereto) shall obtain permission for development. A person who has obtained permission for construction under the Building Act shall be deemed to have obtained permission for development under the National Land Planning and Utilization Act (Article 11(1) and (5)3 of the Building Act).

Accordingly, Article 12(1) of the Building Act provides that a permitting authority for building permits shall verify whether the construction of a building for the relevant purpose, size, or form at a site intended to construct the building meets the provisions of Articles 56 through 62 of the National Land Planning and Utilization Act. Furthermore, Article 57(1) of the National Land Planning and Utilization Act provides that a person who intends to engage in development activities shall submit an application accompanied by a plan for the construction of infrastructure following such development activities or the securing of sites necessary therefor, prevention of danger and injury, prevention of environmental pollution, landscape, landscaping, etc. to the permitting authority, but a person who intends to construct a building subject to the Building Act shall submit an application form according to the procedures as provided by the Building Act. Further, Article 58(1)4 of the National Land Planning and Utilization Act provides that a person who intends to construct a building shall not harmonize the application form of the permission for development activities with the surrounding area’s land utilization status or land use plan, height of the building, gradient of land, water quality, water drainage, water quality destruction, etc. and surrounding area’s or landscape.

In full view of the foregoing structure and content of the provisions of the Building Act and the National Land Planning Act, if the construction of a building constitutes development activities under the National Land Planning Act, a permitting authority that grants a building permit must verify the criteria for permission for development activities under the National Land Planning Act as one of the grounds for restriction under the relevant Acts and subordinate statutes that are contrary to the building permit under the National Land Planning Act. Thus, if an application for permission for development activities under the National Land Planning Act, which is deemed as permission for development activities, fails to meet the criteria for permission for development activities under the National Land Planning Act, the permitting authority may refuse such application. The same applies to permission for modification of matters for which permission for development

3. Comprehensively taking account of the adopted evidence, the lower court acknowledged that, on April 25, 2014, the Plaintiff filed an application for permission to change the construction permit (hereinafter “instant application for change”) with the content of building a Class II neighborhood living facility (automobile repair store) located in the natural green area in the urban area from the Defendant on the 494 square meters in Gangnam-gu, Seoul ( Address omitted) and then, on June 25, 2014, the said automobile repair store was changed to the building area of 93.06 square meters, the first floor of 416.51 square meters in total floor area, and the third floor automobile related facilities (factory maintenance), and that the Defendant did not require the instant application for change to the construction permit under the Building Act (hereinafter “instant application for change”), on August 22, 2014, on the ground that it is anticipated difficult for the Plaintiff to implement the comprehensive development plan for planned management and development, the Defendant did not have any other reason to refuse the instant application for change of the construction permit (hereinafter “the instant application for change of construction permit”).

4. However, in light of the aforementioned legal principles and statutes, the construction of the said automobile-related facilities (a rearrangement factory) constitutes an act of development stipulated in the National Land Planning Act, and the instant application for change of the building permit that is deemed to be modified under the National Land Planning and Utilization Act is sought. As such, the building permit holder should be deemed to have refused the permission for change if it is verified that the construction conforms to the criteria for permission for development activities stipulated in the relevant

Therefore, it is erroneous for the court below to conclude that there are no grounds for restriction under the relevant Acts and subordinate statutes with respect to the construction of automobile-related facilities (maintenance factories). However, the defendant presented only circumstances such as the possibility of difficulty in establishing and realizing the comprehensive development plan on the grounds of the instant disposition, and such grounds cannot be deemed as constituting grounds that conflict with the development permission standards stipulated in the National Land Planning Act and subordinate statutes. Although the defendant asserted the grounds that the residential environment may be impeded due to the discharge of harmful substances as grounds for appeal, this cannot be considered as grounds for determining the legitimacy of the instant disposition, as

Therefore, aside from the fact that the Defendant’s application for change of this case did not meet the criteria for permission for development activities under the National Land Planning Act, the lower court’s determination that the instant disposition was unlawful is eventually justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the requirements for change of construction permission matters, or exceeding the bounds of the principle of free evaluation of evidence in violation

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)