The purport of allowing residents to publicly announce and peruse the details of the urban management plan when the competent administrative agency formulates an urban management plan under the former National Land Planning and Utilization Act / Where the Mayor/Do Governor intends to modify the draft initial urban management plan requested by the head of the Si/Gun, whether the details thereof should be forwarded to the head of the Si/Gun and undergo the procedure for hearing the opinions of residents

Article 28(1), (2), (3), and (4) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 22(5) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 23718, Apr. 10, 201);

Supreme Court Decision 87Nu388 delivered on May 24, 198 (Gong1988, 998) Supreme Court Decision 98Du2768 delivered on March 23, 200 (Gong200Sang, 1067)

Plaintiff

Do Governor of Chungcheongnam-Nam (Law Office of Daejeon, Attorneys Park Jae-chul et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2012Nu2458 decided April 18, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Article 28(1) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”) provides that when the head of a Si/Gun formulates an urban management plan, he/she shall hear the opinions of residents and reflect such opinions in the urban management plan if deemed reasonable. Article 28(2) and (3) of the same Act provides that where a plan for a project directly formulated by the Do Governor, who is the person entitled to decide on the urban management plan, includes the matters to be determined by the urban management plan, and where a direct formulation of the relevant urban management plan is made pursuant to Article 24(6) of the National Land Planning and Utilization Act, he/she shall also send a draft of the urban management plan to the head of the relevant Si/Gun to hear the opinions of residents on the draft of the urban management plan and require the head of the relevant Si/Gun to submit the result thereof to the Do Governor, and that the head of the relevant Si/Gun shall again hear opinions of residents concerning the plan or utilization of the urban management plan.

The purpose of the National Land Planning Act is to allow the competent administrative agency to publicly announce and peruse the contents of the relevant urban management plan when formulating the urban management plan is to prevent unfair infringement on the rights of the people and to ensure democratization and trust in administration by rationally adjusting the interests of many interested persons (see, e.g., Supreme Court Decisions 87Nu388, May 24, 198; 98Du2768, Mar. 23, 2000). In addition, the significance and necessity of the procedure to hear the opinions of residents is not only the process of formulating the urban management plan, but also the case where the contents of the plan are changed through consultation with the head of the relevant administrative agency and deliberation by the urban planning committee. Therefore, it is reasonable to deem that a Mayor/Do Governor originally intends to revise the urban management plan by reflecting the consultation, etc. with the head of the relevant administrative agency in the process of determining the urban management plan, and that the content of the plan should undergo an opinion under Article 28(2)5(2) of the Enforcement Decree of the National Land Planning Act or the relevant Si/Gun.

2. (1) The lower court: (a) in formulating an urban management plan for the designation and alteration of a specific use area by Defendant Bo Young-si, which is an urban management plan for the designation and alteration of a specific use area, (b) applied for the determination of an urban management plan to hear the opinions of the residents on September 14, 2010; (c) after consultation with the heads of relevant administrative agencies and deliberation by the Urban Planning Committee, the request for submission of a plan for measures, etc. according to the above deliberation results; and (d) Defendant Bo Young-si, which reflects the above deliberation results, the lower court determined that the procedures for the first determination and public announcement of an urban management plan were unlawful after excluding land equivalent to 25% of the total area from among the land for which the designation and alteration were sought, and maintaining it as an agricultural and forest area; and (e) subsequent to the determination and public announcement of an amendment of the urban management plan, the lower court determined that the alteration of the urban management plan was made to the original planned management area to be changed to the planned management area; and public announcement of the plan was made.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the formulation and decision of an urban management plan stipulated in Articles 28 through 30 of the National Land Planning and Utilization Act, the procedures for hearing the opinions of residents in the course of establishing an urban management plan, and the discretionary nature of an administrative plan, etc., contrary to what is alleged in the grounds of appeal.

The Supreme Court's decision cited in the ground of appeal by the defendant Chungcheongnam-nam Do governor is not appropriate to be invoked in this case because the case is different from this case.

3. Therefore, all appeals are 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 So-young (Presiding Justice)