Plaintiff (Law Firm Leesan et al., Counsel for the plaintiff-appellant)

The head of Guro-gu Seoul Metropolitan Government

January 20, 2010

Seoul Administrative Court Decision 2008Guhap27131 Decided December 12, 2008

1. Revocation of a judgment of the first instance;

2. On May 15, 2008, the Defendant’s notification of the result of deliberation by the Korea Urban Planning Commission to the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

The court's reasoning in this part is as follows: Article 63 of the National Land Planning and Utilization Act (hereinafter "National Land Act") (Article 63 (1) 3 of the former National Land Planning and Utilization Act (amended by Act No. 8852 of Feb. 29, 2008) is the same as the corresponding part of the judgment of the court of the first instance, except for the case where Article 63 (1) 3 of the former National Land Planning and Utilization Act (amended by Act No. 8852 of Feb. 29, 2008). Thus, the court's reasoning is as follows.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The public notice of this case, which designated the Guro-gu Seoul Metropolitan Government Guro-dong as a restricted area for development permission, where the land of this case is located, is unlawful in violation of Article 63 (1) 3 of the former National Land Planning and Utilization Act. As such, in accordance with the public notice of this case, when the Plaintiff’s application of this case was deliberated upon by the Urban Planning Committee as a result of deliberation by the Urban Planning Committee, the disposition of this case on the ground that it has an impact on the calculation of old age, which is the development requirement

B. Relevant statutes

/ former National Land Planning and Utilization Act (amended by Act No. 8852, Feb. 29, 2008)

Article 56 (Permission for Development Acts)

(1) Any person, who intends to do an act falling under any of the following subparagraphs and prescribed by Presidential Decree (hereinafter referred to as "development act"), shall obtain permission (hereinafter referred to as "permission for development acts"), from the Special Metropolitan City Mayor, Metropolitan City Mayors, or heads of Sis/Guns:

1. Construction of buildings, or installation of structures;

Article 63 (Restriction on Permission for Development Acts)

(1) The Minister of Construction and Transportation, the Mayor/Do Governor, or the head of Si/Gun may restrict permission for development activities only once for a period not exceeding 3 years, after going through the deliberation of the Central Urban Planning Committee or the Local Urban Planning Committee under the conditions as prescribed by the Presidential Decree, with respect to the areas which fall under any of the following subparagraphs and are deemed particularly necessary in view of urban management planning: Provided, That with respect to the areas falling under subparagraphs 3 through 5,

1. Green areas or planned control areas, wherein trees are collectively brought up, or birds and trees, etc. are collectively inhabited, or areas requiring conservation as excellent farmland, etc.;

2. An area where development activities could seriously pollute or damage the surrounding environment, scenery, aesthetic view, cultural heritage assets, etc.;

3. An area for which a basic urban planning or urban management planning is formulated, and for which a change of a specific-use area, specific-use district or specific-use zone is expected, and the standards for permission for development activities are expected to vary drastically accordingly

4. Area designated as a district unit planning zone;

5. Deleted.

(2) The Minister of Construction and Transportation, the Mayor/Do Governor, or the head of Si/Gun shall, when he intends to restrict permission for development activities pursuant to the provisions of paragraph (1), announce in advance the restricted area, the restricted act, the restricted act and the restriction period as prescribed by

(1) Enforcement Decree of the former National Land Planning and Utilization Act (amended by Presidential Decree No. 20722, Feb. 29, 2008)

Article 60 (Restriction on Permission for Development Acts)

(1) Where a person who intends to restrict permission for development activities under Article 63 (1) of the Act is the Minister of Construction and Transportation, he/she shall undergo deliberation by the Central Urban Planning Committee, and where he/she is the Mayor/Do Governor or the head of a Si/Gun,

(2) Where a person who intends to restrict permission for development activities under Article 63 (1) of the Act is the Minister of Construction and Transportation or the Mayor/Do Governor, he/she shall hear the opinion of the head of Si/Gun having jurisdiction over the area to be restricted in advance before the Central Urban Planning Committee under paragraph (1) or the

(3) Where the Minister of Construction and Transportation imposes restrictions on permission for development activities under Article 63 (2) of the Act, the public announcement shall be made in the Official Gazette, where the Mayor/Do Governor or the head of a Si/Gun carries out such permission,

【Framework Act on the Regulation of Land Use

Article 8 (Designation, etc. of Zones, Districts, etc.)

(1) When the head of a central administrative agency or the head of a local government intends to designate (including modification; hereinafter the same shall apply) an area, district, etc., he/she shall hear opinions from residents in advance, as prescribed by Presidential Decree: Provided, That the same shall not apply to any of the following cases or modification

1. Where the scope of a zone, district, etc. is directly designated pursuant to statutes or municipal ordinances and rules without any separate procedure for designation;

2. Where procedures for hearing opinions of residents are prescribed by other statutes or municipal ordinances and rules;

3. Where it is necessary to maintain confidentiality for national defense;

4. Other cases prescribed by Presidential Decree.

(2) When the head of a central administrative agency or the head of a local government designates an area, district, etc., he/she shall prepare a topographical map indicating the area, district, etc. (hereinafter referred to as "geographical map") in the Official Gazette (limited to cases designated by the head of the central administrative agency; hereinafter the same shall apply) or the official gazette (referring to the official gazette of the relevant local government, where designated by the head of the relevant local government; hereinafter the same shall apply): Provided, That he/she may not prepare and publicly announce a topographical map

(3) The designation of an area, district, etc. subject to a public announcement of a drawing clarifying an area, district, etc. on a topographical map, cadastral map, etc. under paragraph (2) (hereinafter referred to as "geographical map, etc.") shall take effect upon publication of the topographical map, etc.: Provided, That the same shall not apply to cases where it is difficult to announce the topographic map, etc

(4) In cases falling under the proviso to paragraph (3), a topographical map, etc. shall be publicly announced by the date on which two years elapse from the date of designation of an area, district, etc., and where no topographic map, etc. is publicly announced, such designation shall lose

(5) If the designation of a zone, district, etc. loses its effect pursuant to paragraph (4), the designating authority of the zone, district, etc. shall immediately publish such fact in the Official Gazette or Official Gazette, as prescribed by Presidential Decree, and notify the head of the relevant Si/Gun/Gu (including the head of a Gun located within the jurisdiction of a Metropolitan City; hereinafter the same shall apply)/Gu (referring to an autonomous Gu; hereinafter the same shall apply) thereof. In such cases, the head of the relevant Si/Gun/Gu shall make such details registered on the national land use information system provided for in Article 12 (hereinafter referred to as "national land use information

(6) The head of a central administrative agency or the head of a local government may, if any other person intends to formulate or apply for the designation of a zone, district, etc., request such person to prepare and submit a topographic map, etc. necessary for a public announcement under

(7) Detailed standards, methods, etc. necessary for preparing topographic maps, etc. under paragraph (2) shall be prescribed by Presidential Decree.

(8) The head of a central administrative agency or the head of a local government shall, when he/she intends to announce a topographic map, etc. under paragraph (2), notify in advance the head of a Si/Gun/Gu concerned of the matters prescribed by Presidential Decree, such as relevant documents and the scheduled date of publication: Provided, That where he/she fails to prepare and announce a topographic map under the proviso to paragraph (2), he/she shall notify in advance the designation of an area, district, etc., and where he/she makes an announcement of a topographic map, etc. after designating an area, district, etc., under the proviso to

(9) The head of a Si/Gun/Gu shall, upon receiving the notification under paragraph (8), enter the details thereof on the national land utilization information system so that the general public can view them from the date on which the designation of an area, district, etc. becomes effective: Provided, That where a topographic map, etc. is published after being designated as an area, district, etc. under the proviso to paragraph (3), he/she shall make it possible for the general public to view them from the date on

C. Determination

(1) Based on Article 63(1)3 and (2) of the former National Land Planning and Utilization Act and Article 60 of the Enforcement Decree of the same Act, the Defendant rendered the instant disposition rejecting the Plaintiff’s instant application on the ground that, after making the instant public notice based on Article 63(1)3 and (2) of the former National Land Planning and Utilization Act and Article 60 of the Enforcement Decree of the same Act, the land location in the area subject to the restriction of development activities under the instant public notice was located, based on each provision of the above statutes and the public notice of this case, the Plaintiff’s disposition rejecting the instant application was rendered on the ground that, if a new building is built as a result of the deliberation by the Guro-gu Urban Planning Committee, it would affect the calculation

However, an area where permission for development activities may be restricted pursuant to Article 63(1)3 of the above Act refers to an area where a basic urban planning or urban management plan is formulated, and "where the relevant basic urban planning or urban management plan is determined, an area expected to be altered and the criteria for permission for development activities are expected to vary significantly accordingly." In addition, whether a basic urban planning or urban management plan is formulated regarding a restricted area for development activities pursuant to the public notice of this case, and there is no evidence to acknowledge such facts as to whether the change of a restricted area, a specific-use district, or a specific-use district is anticipated and if such a plan is determined, the criteria for permission for development activities is expected to vary significantly (this court ordered the defendant on the third day of pleading opened on September 11, 200, but the defendant sought an order to this point on the third day of pleading, which is held at the third day of pleading, but the disposition of this case is unlawful as it does not meet the requirements under Article 63(1)3 of the above Act, and thus, is unlawful.

(2) The defendant asserts that in the reference document submitted on January 28, 2010 after the closing of argument in this case, the defendant is scheduled to implement the improvement project of the Guro-gu Seoul Metropolitan Government, where the land in this case is located, in connection with the basic plan for urban and residential environment rearrangement (redevelopment and reconstruction) established by the Mayor of Seoul Metropolitan Government. The plaintiff's application in this case is likely to be contrary to the basic plan for urban and residential environment rearrangement established by the Mayor of Seoul

However, unless the application for a building permit is in conflict with any restriction stipulated by the relevant laws, such as the Building Act, a building permit holder shall, as a matter of course, grant a building permit under the same Act, and even if there is no need for important public interest, permission to a person meeting the requirements other than the grounds for restriction stipulated by the relevant Acts and subordinate statutes shall not be denied. The Defendant’s assertion is without merit, in light of the purport that Article 63 of the former National Land Planning and Utilization Act (amended by Act No. 9846, Sep. 24, 2009) is to restrict development activities in an area where a basic urban planning or an urban management plan is being implemented at the time of the instant disposition by the Defendant, where the change of the relevant basic urban planning or the relevant basic urban planning is anticipated and the standards for permission for development activities are expected to vary accordingly, and it is expected that the criteria for permission for development activities will vary in advance, and thus, it is difficult to deem that the Plaintiff’s instant application is highly likely to be in conflict with the basic urban and residential environment improvement plan established by the Seoul Special Metropolitan City Mayor.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and it is so decided as per Disposition with the decision to revoke the disposition of this case.

Judges Cho Jae-hoon (Presiding Judge)