Plaintiff (Attorney Lee B-hee, Counsel for the plaintiff-appellant)

Daegu Metropolitan City Mayor (Law Firm Sejong, Attorneys Kim Jong-soo et al., Counsel for defendant-appellant)

May 10, 2013

Daegu District Court Decision 2012Guhap579 Decided September 12, 2012

1. Revocation of a judgment of the first instance;

2. On March 21, 2011, the Defendant’s disposition to revoke the Plaintiff’s rejection of the proposal to create a private park (part of the proposal) within the Dobong-gu Natural Park.

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

The same shall apply to the order.

1. Details of the disposition;

A. On February 2, 1965, the Minister of Construction and Transportation decided and publicly announced an urban planning plan that establishes a natural park (title: salary-free park; hereinafter “Gu salary-free park”) that is an urban planning facility in the Dobong-gu, Daegu-gu, Daegu-gu, pursuant to the former Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002) (No. 1387 of the Construction Division Notice).

B. On February 10, 2004, in accordance with the former Urban Park Act (wholly amended by Act No. 7476 of Mar. 31, 2005; hereinafter “former Urban Park Act”), there was a decision to change a park building plan for Daegu Urban Planning Facility (Yeong Urban Natural Park) and a publication of topographic drawings (Seoul Metropolitan City Notice No. 2004-16).

C. According to the park building plan 2004, the Gubong Park is an urban natural park, and the total area is 1,643,749 square meters, and 328,000 square meters, which amount to 19.95% among them, were designated as a park facility area. Of the park facility area, the first park facility area (hereinafter “the first park facility area”) is located in the center of the Gu Seobong Park and is surrounding the 19.95%, and the area is 298,000 square meters in area surrounding the 298,00 square meters, and the second park facility area (hereinafter “the second park facility area”) is located at the north dong seat edge of the Gubong Park, and the area is 30,000 square meters in size. The first park facility area is currently installed in the 1 park facility area, and is used by citizens, such as farming-gu, spawdle, spawn, baltontonns, bareboat movable property, and management offices.

D. On March 14, 201, the Plaintiff: (a) installed a golf driving range of 3 stories above ground; (b) a building floor area of 762§³; (c) a building floor area of 1,94 square meters; (d) a training course of 3 stories; and (d) a golf driving range of 8,200 square meters for landscaping; and (c) a proposal for modification of a park building plan (hereinafter “instant proposal”) stating that “the change of a park building plan is made to make a donation and collection of 20,807 square meters of land in part of the instant proposal site and its surrounding areas so that a 2004 square meters of land can be donated and collected” (hereinafter “instant proposal”).

E. On March 21, 2011, the Defendant rendered a disposition to return the instant proposal to the Plaintiff for the following reasons (hereinafter “instant disposition”).

① According to the proviso of Article 6(1)5 and Article 6(4) of the former Enforcement Rule of the Urban Park Act (wholly amended by Ordinance of the Ministry of Construction and Transportation No. 488, Dec. 30, 2005; hereinafter “former Enforcement Rule of the Urban Park Act”), sports facilities, etc. may be collectively installed in a certain area (park facility zone) that does not exceed 20% of the area of the urban natural park. However, the instant proposal is located outside the park facility zone, and the ratio of the area of the park facility zone to the whole area of the Gubong Unpark is 19.95%, which is adjacent to the legal upper limit (20%), and if the ratio of the area of the park facility zone is changed to include the instant proposal in the park facility zone, the ratio of the area of the park facility zone exceeds the upper limit of the area permitted by law (20%).

② Under the 2020 Daegu Metropolitan City Master Plan for Parks and Greenbelts (hereinafter referred to as “the 2020 Master Plan for Parks and Greenbelts”), the surrounding areas of the old-unpark reservoir are set up as a waterside park, and other areas as an urban natural park area. The instant proposal belongs to the urban natural park area, and thus, it cannot be the location of the driving range.

③ As a result of the advice of the Daegu Metropolitan City Urban Park Committee (hereinafter referred to as the “Urban Park Committee”) on the draft change of a park building plan (hereinafter referred to as the “first proposal”) submitted by the Plaintiff to the Defendant on October 26, 2010, “this case’s proposal is impossible to be the location of the driving range.” The content of the instant proposal is not significantly different from the initial proposal. However, the Plaintiff withdrawn the initial proposal on December 24, 2010.

F. On June 17, 2011, the Plaintiff, who was dissatisfied with the instant disposition, filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on November 15, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 2, 7, 11, and 17, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1)The procedural defect argument

The contents of the instant proposal are considerably different from the initial proposal. The Defendant rendered the instant disposition based only on the deliberation data of the Urban Park Committee on October 26, 2010 on the initial proposal without undergoing deliberation by the Urban Park Committee for the instant proposal. Accordingly, the instant disposition has procedural defects.

【Non-existence of Grounds for Disposition】

The Defendant cannot reject the proposal of this case for reasons other than those stipulated in relevant statutes. However, the Defendant’s disposition of this case does not constitute grounds for restriction under relevant statutes. Therefore, the instant disposition is unlawful.

【Disorder and Abuse of Discretionary Authority】

Of the Gubong-Unparks, the area of the 2 park facility is left alone without any park facilities yet to be installed and it is difficult for people and vehicles to pass. In the 2020 master plan, the area of the 1 park facility zone is reduced to 239,000 square meters from 298,000 square meters, and the 30,000 square meters of the 2 park facility zone is to be abolished. However, the proposed area is surrounded by the 30,00 square meters around the 2 park facility zone, and the site conditions stipulated by the standards for the installation of golf practice range under the Acts and subordinate statutes related to urban parks are all met, such as light and noise generated in the 200th place where the 2 park facility zone is closed and the proposed area is additionally designated as a park facility zone. In addition, the installation of the 2020 master plan becomes more needed as a sports facility as a sports facility due to the increase of the dynamic population.

In full view of these circumstances, considering the fact that the proposal of this case, instead of excluding the 2 park facility zone in the park facility zone, by incorporating the site of this case into the park facility zone, can properly harmonize the public and private interests with the establishment of a golf driving range, as well as the fact that golf is popularized and the population enjoying it increases, it also promotes public interest, such as providing the citizens with a space for leisure time utilization. Accordingly, the disposition of this case is not balanced among such interests, or the legitimacy and objectivity of the balancing of interests are lacking. Accordingly, the disposition of this case is erroneous in the misapprehension of discretionary power as to the establishment of the administrative plan of this case.

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

(c) Fact of recognition;

(i)Management of the Park;

㈎ 구 도시공원 및 녹지 등에 관한 법률(2005. 3. 31. 법률 제7476호로 구 도시공원법에서 전부 개정된 후 2011. 8. 4. 법률 제11020호로 개정되기 전의 것, 이하 ‘구 도시공원녹지법’이라 한다)에 의하면, 구 도시공원법상의 ‘도시자연공원’은 ‘도시공원’과 ‘도시자연공원구역’으로 구분된다.

㈏ 피고는 2010. 12. 30. 대구광역시 공고 제2010-858호로 2020공원녹지기본계획을 공고하였는데, 그 공원녹지기본계획에 따르면 구 도시공원법상 도시자연공원인 구봉무공원을 도시공원과 도시자연공원구역으로 구분하되, 공원시설이 설치되어 있는 단산저수지 주변 239,000㎡는 도시공원(봉무수변공원)으로 지정하고, 그 나머지 부분 1,325,535㎡는 도시자연공원구역으로 지정하는 것으로 계획되어 있었다.

Meanwhile, according to the master plan for parks and greenbelts 2020, the part of 59,000 square meters out of the 1 park facility zone was designated as an urban natural zone by cancelling the designation of a park facility zone, and the remaining 239,000 square meters is designated as an urban park. The 2 park facility zone (30,000 square meters) was planned to be designated as an urban natural zone by cancelling the designation of a park facility zone.

㈐ 피고는 2020공원녹지기본계획에 따라 2011. 1. 20. 구봉무공원에 관하여 도시자연공원정비계획 및 도시관리계획 변경안을 수립하고, 2011. 3. 3. 주민에게 그 변경안에 관한 열람공고를 한 다음, 2011. 10. 20. 대구광역시 고시 2011-139호로 도시관리계획(변경)결정 및 지형도면을 고시하였다.

As a result, as the Gu-unpark is divided into an urban park (Yeong River Park) and an urban natural park area, the designation of a park facility area was abolished with the entire area of 59,000 square meters and that of 30,000 square meters in the area of 1 park facilities and the area of 239,000 square meters in the area of 1 park facilities (=29,000 square meters in the area of 29,000 square meters in the area of 1 park facilities - 59,000 square meters in the area of 29,000 square meters in the area of 29,000 square meters in the area of 1 park facilities, and the remaining area of 1,325,535 square meters in the area of 1 park facilities including the area of 59,000 square meters in the area of 29,000 square meters in the area of 2 park facilities and 30,000 square meters in the area of 2 park facilities.

㈑ 제2공원시설구역은 2004공원조성계획의 수립 당시 도시계획도로가 개설될 것을 전제로 하여 지정된 것인데, 도시계획도로가 개설되지 아니하면 차량은 전혀 접근할 수 없고, 사람도 접근하기 어려운 야산의 중턱에 자리를 잡고 있다. 2004공원조성계획에 의하면, 제2공원시설구역은 구봉무공원의 북동쪽 구석 가장자리에 위치하여 도시계획도로와 연접하고 있고, 그 곳에 광장, 휴게소, 주차장, 화장실을 설치할 계획이었는데, 그 시설들은 위치와 종류 등에 비추어 구봉무공원의 이용객보다는 장차 개설될 도시계획도로의 통행차량의 운전자와 그 승객들이 주로 이용할 수 있는 시설로 보인다.

See the proposal of this case and the status of its surroundings

㈎ 이 사건 제안지는 도시자연공원인 구봉무공원 또는 봉무도시자연공원구역 남쪽 구석 가장자리에 위치하고 있다. 이 사건 제안지 및 그 주변 지역은 동쪽과 서쪽 방향으로 진행하는 경부고속도로에 의하여 대구광역시 동구 도평동 자연부락(이하 '도평동 자연부락'이라 한다)과 남북으로 분리되어 있는데, 경부고속도로 북쪽에는 이 사건 제안지 및 그 주변 지역이, 그 남쪽에는 도평동 자연부락이 각 위치하고 있고, 그 자연부락에는 주택 등이 20 내지 30가구 가량 들어서 있다.

㈏ 이 사건 제안지는 동쪽, 북쪽, 서쪽은 높이 약 90 내지 100m 가량 되는 야산의 능선으로 둘러싸여 있고, 남쪽은 경부고속도로의 방음벽으로 완전히 막혀 있다. 특히 제1공원시설구역 또는 봉무수변공원과 이 사건 제안지 사이에 야산의 능선이 위치하고 있기 때문에 이 사건 제안지는 제1공원시설구역 또는 봉무수변공원과 완전히 단절되어 있다. 이 사건 제안지의 동쪽에는 소규모의 가내공장 16곳과 주택 1곳이 위치하여 있는데, 야산의 능선과 수목에 의하여 차단되어 있다.

㈐ 이 사건 제안지는 야산과 야산 사이에 형성된 아주 얕은 계곡에 위치하고 있는데, 현재 임차인 소외 1이 느티나무, 은행나무, 단풍나무, 회양목 등의 각종 묘목을 재배하는 묘목재배농장으로 사용하고 있고, 재배용 묘목 이외의 자연 수목은 없었으며, 그 지면이 비교적 평탄하다. 그 반면 이 사건 제안지에 연접한 임야에는 소나무, 낙엽송, 낙엽수 등이 자연적으로 비교적 울창하게 자라고 있다.

【International Access to the proposed land of this case and the current status of access roads

㈎ 이 사건 제안지는 앞서 본 바와 같이 동쪽, 북쪽, 서쪽은 야산 능선으로, 남쪽은 경부고속도로로 막혀 있기 때문에 외부로 진출입하기 위해서는 그 동쪽 약 240m 지점에 설치되어 팔공로 28길과 직선으로 연결된 경부고속도로 지하의 박스형 통로(이하 '박스형 통로'라 한다)를 이용하여야 한다. 박스형 통로는 폭이 4.5m, 높이가 4.5m, 연장이 62m인데, 승용차는 물론 덤프트럭이나 대형 화물차라도 1대의 차량이 한쪽 방향으로는 통행할 수 있으나 승용차 등의 소형차량이라도 2대의 차량이 양쪽 방향으로 서로 교행할 수는 없다. 다만 박스형 통로의 양쪽 입구 부근에는 비교적 넓은 공터가 있기 때문에 박스형 통로를 벗어나면 2대의 차량이 비교적 용이하게 교행할 수 있다. 한편 박스형 통로는 팔공로 28길의 막다른 곳에 위치하고 있는데, 이 사건 제안지와 그 동쪽에 위치한 소규모 가내공장 16곳 및 주택 1곳에 출입하는 차량들과 사람들이 진출입로로 이용하는 것이기 때문에 통행량이 많지는 않다.

㈏ 이 사건 제안지에서 외부로 진출입하기 위해서는 앞서 본 바와 같이 박스형 통로를 통과하여야 하는데, 외부에서 박스형 통로로 진출입하는 방법은 2가지다.

The first method is the parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel.

The second method is going to the northwest by the 24th parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel with parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel parallel with parallel parallel parallel parallel parallel parallel parallel parallel parallel. The way of coming to the opposite direction is to proceed.

㈐ 팔공로 24길은 아스콘으로 포장되어 있는데, 대부분의 구간은 포장부분의 폭 3m 90㎝, 전체 폭 5m 60㎝ 내지 6m 70㎝ 가량 되어서 2대의 차량이 서로 교행하는 데 별다른 문제점이 없다. 다만, 팔공로 24길과 경부고속도로 부체도로가 만나는 지점 직전의 81m 구간은 노면 전체가 아스콘으로 포장되어 있었는데, 그 폭이 3m 30㎝에 불과하여 대형차량도 일방으로는 무리 없이 진행할 수 있으나 소형차량이라도 2대가 서로 교행할 수는 없다. 그런데 팔공로 24길은 경부고속도로 부체도로와 만나는 지점에서 끝나는데, 그 곳에서 경부고속도로 부체도로 외에는 다른 도로와 연결되지 않기 때문에 차량의 통행이 한산하여 노폭이 좁은 81m 구간에도 차량의 소통에 별다른 지장이 없다.

㈑ 경부고속도로 부체도로는 아스콘 및 시멘트콘크리트로 포장되어 있고, 가장자리에 시멘트콘크리트로 된 경계 턱이 설치되어 있었는데, 노폭이 약 6m 20㎝ 가량 되어 2대의 차량이 서로 교행하는 데 별다른 문제점이 없다. 경부고속도로 부체도로는 팔공로 24길과 교차하는 지점에서 북서쪽으로 경부고속도로와 나란히 약 700m 가량 진행다가 노폭이 아주 좁은 비포장의 농로와 연결되는데, 팔공로 24길과 교차하는 지점에서 약 300m 가량 되는 지점에서 팔공로 28길과 연결되는 사면도로와 만나게 된다. 경부고속도로 부체도로의 이용자가 그 주변에 산재한 농지의 경작자와 이 사건 제안지 및 그 주변의 가내공장 16곳, 주택 1곳의 출입자에 한정되기 때문에 경부고속도로 부체도로는 차량의 통행이 아주 미미한데, 그마저도 사면도로가 없다면 차량의 통행이 거의 없어서 이를 개설하여 유지·관리한 이유나 이용가치가 크게 줄어들게 된다.

㈒ 팔공로 28길은 시멘트콘크리트로 포장된 도로로서 포장 부분의 폭이 약 3 내지 4m 가량 되었는데, 거의 대부분의 구간에서는 양쪽 가장자리에 비포장의 갓길이 있어서 승용차 2대가 서로 교행할 수 있다. 대형차량의 경우 2대의 차량이 전 구간에서 서로 교행할 수 없어서 그 통행에 상당한 무리가 있을 것으로 보였다. 특히 도평동 자연부락이나 이 사건 제안지 및 그 부근의 가내공장 및 주택 등에서 화재 등의 안전사고가 발생할 경우 팔공로 28길만을 진출입로 이용할 경우 소방차 등 대형의 구급차량의 원활한 출동에 큰 지장이 있어서 화재 등을 신속하게 진압하기 어렵다. 그런데 사면도로는 팔공로 28길과 경부고속도로 부체도로를 연결하여 줌으로써 이러한 통행상의 문제점을 해소하는 아주 중요한 기능을 하고 있다.

㈓ 사면도로는 다소 경사가 진 사실상 도로로서 현재 시멘트 콘크리트로 포장되어 있는데, 포장부분의 폭이 약 3m 90㎝ 가량 되고, 양쪽 가장자리에 비포장의 노견이 있어서 2대의 차량이 교행하는 데 큰 어려움이 없으며, 그 길이는 약 61m 가량 된다. 그런데 사면도로는 인근 마을 주민들이 2008년경 팔공로 28길과 신설된 경부고속도로 부채도로를 연결하기 위해서 개설하여 현재까지 경운기 등 농기구의 통행을 위한 농로 등으로 이용하던 사실상의 사도로서 당초에는 포장이 되지 않고 경사가 심하였는데, 원고가 시멘트 콘크리트로 포장을 하면서 절토하여 경사가 다소 완만하게 되었다.

Applicant The initial proposal of the plaintiff and the deliberation process of the defendant

㈎ 원고의 최초제안은 이 사건 제안지를 포함한 33,200㎡의 토지에 건축바닥면적 762㎡, 건축연면적 1,994㎡, 파3연습장 9,900㎡, 주차장 1,610㎡, 조경 6,000㎡ 규모의 골프연습장을 설치하고, 그 주변의 16,529㎡ 상당 토지를 기부·채납할 수 있도록 2004공원조성계획을 변경해 달라는 것이었다.

㈏ 피고는 2010. 12. 1.부터 그 달 8.까지 최초제안에 관하여 도시공원위원회에 자문하였는데, 도시공원위원회의 의견은 "구 도시공원법 등의 관련 규정에 따르면 공원시설구역은 전체공원면적의 20% 이내여야 하는데 이 사건 제안지를 구봉무공원의 공원시설구역에 포함시킬 경우 위 기준을 초과하게 되고, 공원시설구역을 조정할 경우 특혜시비 및 유사민원이 발생할 우려가 있으며, 이 사건 제안지의 진입로 주변마을의 주거환경 저하 및 자연경관 저해, 생태계 파손 및 토양오염 우려 등의 사유로 이 사건 제안지에는 골프연습장 설치가 불가능하다"는 것이었다.

㈐ 원고는 2010. 12. 14. 앞서 본 바와 같이 최초제안을 자진철회하고, 2011. 3. 14. 그와 유사한 이 사건 제안을 하였다.

[Ground of recognition] A without dispute; Gap evidence 8-1 through 17; Eul evidence 13; Eul evidence 1 through 7 (including paper numbers; hereinafter the same shall apply); Eul evidence 10, 11, 12, 17 through 20, 37, and 42; non-party 2's testimony and video; the result of the on-site inspection by the court of the first instance and the court of the first instance; the purport of the whole pleadings

D. Determination as to the plaintiff's procedural defect and non-existence of grounds for disposition

(i) Relating to the preparation and proposal of a park building plan;

According to Article 16 (3) and (4) of the former Act, a private park promoter may propose to a Metropolitan City Mayor, etc., who is a person with the authority to formulate a park building plan, that he/she prepares a park with respect to any urban park for which an urban park management plan concerning the building of an urban park is determined, on his/her own cost and responsibility. The Metropolitan City Mayor, etc. shall notify whether he/she accepts the proposal after consultation with the urban park committee, and when he/she intends to accept the proposal, it shall be reflected

She With respect to the existence of procedural defects

According to the above facts, as a result of consultation with the Urban Park Committee on the first proposal from December 1, 2010 to August of the same month, the defendant received the opinion that "the construction of a golf practice range is impossible on the present proposal because there is a decline in the residential environment, impairment of natural landscape, damage to ecosystem, soil contamination, etc. around the access roads of the present proposal, and there is a concern that if the present proposal is included in the park facilities zone of the Gubong Unpark, it exceeds 20% of the facility rate stipulated in the relevant provisions, such as the former Urban Park Act, etc., of the Gubong Unpark. In addition, if the area of the present proposal is adjusted into the park facilities zone of the Gubong Unpark, the preferential and similar civil petition is likely to occur." On the other hand, the present proposal does not have any intrinsic difference between the first proposal and the first proposal made by the Urban Park Committee, and the size of the parking lot shall be reduced from 9,900 square meters to 8,200 square meters.

Therefore, the defendant's assertion of procedural defect in the process of the plaintiff on a different premise is without merit, since it is not necessary for the defendant to conduct an additional deliberation other than the initial deliberation on the first proposal from the Urban Park Committee.

Then, as to the existence of the reasons for the disposition

According to the relevant Acts and subordinate statutes, a park building plan is a kind of administrative plan that is conducted based on the professional and technical judgment of an administrative agency, so even if it does not fall under the grounds for restrictions prescribed by relevant Acts and subordinate statutes, the park building plan may not accept the draft proposal. However, if the public interest and the balance between the private interest that are to be considered when formulating and determining an administrative plan that has not accepted the draft proposal, or the balance between the public interest and the private interest is not justified and objectivity is lacking, there is a defect in the relevant administrative plan. Therefore, the Plaintiff’s allegation that there is no grounds for disposition that the draft plan cannot be refused without any grounds for restrictions prescribed by relevant Acts and subordinate statutes is without merit.

E. Determination on the Plaintiff’s assertion of deviation and abuse of discretionary power

(i)The legal nature of the administrative plan and the standard for determining its illegality;

Administrative plans are established as an activity standard for realizing order at a certain point in the future by integrating and coordinating administrative means related to each other in order to achieve specific administrative objectives, such as construction, maintenance, and improvement of a city, based on professional and technical judgments regarding administration. The relevant Acts and subordinate statutes only provide abstract administrative goals and procedures, but do not provide for the contents of administrative plans, and thus, administrative agencies have relatively broad freedom in formulating and determining a specific administrative plan. However, the freedom of such formation, which is held by an administrative body, is not unlimited, but also limited to the public interest and private interest, as well as the legitimate comparison and comparison between the public interest and private interest between the administrative body and the private interest. Thus, if the administrative body formulates and determines an administrative plan, it is unlawful in imposing the administrative plan, or if it is found that it is subject to consideration of the balance of interest (see, e.g., Supreme Court Decision 200Nu26164, Apr. 26, 196);

d. Whether balancing interests with respect to the disposition of this case and legitimacy and objectivity

In full view of the following circumstances as to the instant case’s health class, the aforementioned evidence, and the purport of the entire arguments and facts recognized earlier, the instant disposition is more excessively restricted to the Plaintiff’s private interest than the public interest to be achieved therefrom. In determining whether to accept the instant proposal and modify the park building plan, the instant disposition constitutes a case where: (a) the benefit balancing was not granted; or (b) the matters to be included in the subject of consideration of the benefit balancing are omitted; or (c) the legitimacy and objectivity are lacking in the benefit balancing.

㈎ 구봉무공원의 시설율 초과 여부에 관하여

(a) Paragraph 4 of the Addenda to the Urban Park Act (Act No. 9860 of Dec. 29, 2009), Article 4 of the Addenda to the Enforcement Rule of the Act (Ordinance No. 488 of Dec. 30, 2005), Article 4 (4) of the Addenda to the Enforcement Rule of the Act (Ordinance No. 488 of the Ministry of Construction and Transportation, Dec. 30, 2005, hereinafter referred to as "the transitional provision of the Addenda to the Enforcement Rule of the Urban Park Act") provides that "the transitional provision of the Act on the Special Cases concerning the Existing Urban Natural Park" and "the transitional provision for the construction or alteration of park facilities in the existing urban natural park under the previous Urban Park Act" shall be applied to the construction or alteration of park facilities in the existing urban natural park under the Urban Park Act or "the previous provisions of the Enforcement Rule)" (the former provisions of the Urban Park Act). However, since the previous park is not only a city under the former Urban Park Act at the time of the instant disposition.

(b) According to Articles 6(4) and 8(1)1(c) of the former Enforcement Rule of the Urban Park Act, park facilities may be integrated into a specific area (hereinafter referred to as “park facilities area”) equivalent to or less than 20% of the area of the park in an urban natural park where necessary for the convenience of park users and the efficient management of the park, and the total site area of park facilities that can be installed in a single urban natural park shall be 20% of the area of the relevant urban natural park.

However, according to the 2004 building plan, which had been applied to the Gubong Park established at the time of the instant disposition, as a city natural park, the Gubong Park was designated as the total area of 1,643,749 square meters, and among them, the total area of 298,000 square meters and the total area of 328,000 square meters in the 1 park facility area and 328,000 square meters in the 200 square meters in the 208,000 square meters in the 228,000 square meters in the 24,700 square meters in the 24,700 square meters in the 24,000 square meters in the 1,643,749 square meters in the total area of the 24,700 square meters in the 24,700 square meters in the 204,000 square meters in the 29,000 square meters in the 1 park facility area.

However, on the other hand, if the Plaintiff changed a park building plan to 204 square meters according to the proposal of this case, and abolished the designation of park facility zone for the second park facility zone, and instead, if the instant proposal site is designated as a park facility zone, the area of the facility zone is limited to 322,70 square meters (=298,000 square meters + 24,700 square meters). As such, in the case of the Gubong Park, the entire park area is limited to 1,643,749 square meters (=3% of the total park area = 322,70 square meters (area of the park facility zone) ¡À19.63 square meters (total area of the park) ± 1,643,749 square meters x 100 square meters).

(4) In light of the fact that the Plaintiff’s 204m2 and the 200m2 area of the instant park facilities are located in the 20m2 and the 20m2 area of the instant park facilities, the Plaintiff’s 20m2 and the 20m2 area of the instant park facilities are not located in the 20m2 area, and the instant 20m2 is not located in the 20m2 area and the 20m2 area of the instant park facilities are not located in the 20m2 area, and the Plaintiff’s 20m2 area is not located in the 20m20 area of the Gu park facilities, and the 20m20m20 area of the Gu park facilities is not located in the 20m20 area of the Gu park facilities and the 20m25m20 area of the Gu park facilities are not located in the 20m20 area of the 1m20-m200 area of the Gu park facilities.

The Defendant asserts that park facilities to be installed in the urban natural park area should be integrated into the park facilities area. According to Article 6(4) of the former Enforcement Rule of the Urban Park Act, if necessary for the convenience of park users and efficient park management, park facilities can be collectiveized into the park facilities area equivalent to not more than 20% of the park area within the urban natural park area, and it does not stipulate that park facilities in the urban natural park area must be collectiveized into the park facilities area in all cases. Thus, the Defendant’s above assertion on a different premise is without merit.

㈏ 골프연습장 설치기준의 충족 여부에 관하여

(a)Provisions on installation standards for golf practice ranges;

Article 8(7) of the former Enforcement Rule of the Urban Park Act (wholly amended by Ordinance of the Ministry of Construction and Transportation No. 488, Dec. 30, 2005; Article 8(7) of the former Enforcement Rule of the same Act applies to the disposition of this case in accordance with the transitional provision of the amended Enforcement Rule; and attached Table 4) provides that parking lots shall be secured so that the traffic flow of surrounding areas may not be impeded due to vehicles using golf driving ranges in urban natural parks.

(b) Meeting standards for establishment of golf practice ranges;

The route leading to and leading to the proposed site of this case is 24 roads as arms and 28 roads as arms and arms, and 24 roads as arms and arms, 28 roads as arms, and 28 roads as arms and arms, but as arms and arms do not impede one-way passage, only one-way passage is possible within a part of the road, and the two-four roads as arms and arms are connected to the Gyeong Highway, and only one-way passage can be allowed within the 81m area from the end of the road connected to the Gyeong Highway, and there is no hindrance to the traffic in the remaining sections, and there is no obstacle to one-way passage from the front section to the 3rd road. Moreover, the 24 roads as arms and the 28 roads as arms and arms adjacent to the proposed site of this case are terminated in the vicinity of the proposed site of this case and are connected to the 24 roads adjacent to the 24th road of this case and the 24th road adjacent to the proposed road of this case, and they are not connected to the 2nd road of each of this case.

In addition, the proposal of this case is completely divided and blocked by the 1 park facility zone or the bewing-free park (the part of the 1 park facility zone after the disposition of this case was designated) and the camping-out ridges in the Gubong-park, and the mountain-free park zone can not pass geographically and actually pass. Therefore, even if a golf driving range is established in the proposal of this case, it does not interfere with the utilization of the Gubong-free park or the bewing-free park and the natural natural park area, even if a golf driving range is established in the proposal of this case.

Therefore, in light of the structure and use status of the surrounding road, the proposal site of this case, and the topography and use status of the surrounding area, etc., the proposal site of this case satisfies the standards that "(1) residents who use urban parks can easily access urban parks and harmonize with other facilities of the park."

(4) However, the defendant asserts that since private roads cannot be used as an access road to the proposed site of this case due to the plaintiff's arbitrary packaging of such private roads, it is necessary to restore them to its original state because the plaintiff could not be used as an access road to the proposed site of this case. Therefore, the land category in the public register is a road, and neighboring residents use it as a road from around 2008, and the neighboring residents connect the 24-lane, the road as a arms, the road as a main body road, and the road as a main body road and the 28-lane to a main body road to facilitate traffic in the surrounding areas. Furthermore, if there is no private road, the utility of the road as a main body road of this case may be reduced, and it is difficult for the defendant to come up with large vehicles such as fire-fighting vehicles in the 28-distance narrow width and thus, it is not possible for the neighboring administrative agencies to properly use the road as well as the surrounding areas to cope with traffic accidents, such as fire-fighting accidents, as well as the surrounding areas.

The proposal of this case is located in the valleys, and is currently being used as a nursery for cultivating various seedlings, such as stiak tree, bank tree, stiak tree, stiak tree, and stiak tree, and no natural tree, other than seedlings for cultivation, and the ground is relatively flat.

Therefore, in light of the above topography, utilization status and self-training trees, etc., the proposal of this case satisfies the criteria that "Second, areas with excellent clinical conditions or areas with height of cutting or filling-up are not necessary areas with a height of at least three meters."

The proposal of this case is located at the edge of the south-west area of the Si natural park park or the Dobong-gu natural natural park area, which is an urban natural park. The proposal of this case and its surrounding areas are divided into two Koreas by the Do-dong natural village and the two Koreas. On the north side of the Do-dong Highway, the proposal of this case and its surrounding areas are located at each location of the Do-dong natural village and the south side of the Do-dong natural village and the remaining side of the Do-dong natural village are located at 20 to 30 households. The natural village includes the house, etc.

In addition, the proposal of this case is surrounded by the ridge line in the east, north, and west, the height of which is about 90 to 100 meters, and the south is completely obstructed by the soundproof walls of the Gyeong-do Highway. In particular, since the ridge line between the 1 park facility zone or the wing-gu Park and the proposed site of this case is located, the proposal of this case is completely cut off from the 1 park facility zone or the wing-gu Park. The dynamic side of the proposed site of this case is located at 16 small-scale internal factories and 16 houses, and is cut off by the ridge line and trees of the Ysan.

Therefore, in light of the above location, surrounding land and structure, park facilities, factories, housing, etc., the proposal of this case satisfies the criteria of "not to harm the aesthetic view and landscape of surrounding areas and urban parks due to high steel poles and their nets," and the criteria of "not to harm surrounding areas due to noise or lighting facilities by maintaining sufficiently the distance from neighboring houses," and the criteria of "not to harm surrounding areas due to noise or lighting facilities."

According to the plaintiff's proposal of this case, it is expected that 72 parking lots will be installed as incidental facilities of a golf range. In addition, the proposal of this case is completely obstructed by the ridges in mountain and soundproof walls of the light-line highways, and only can it pass through the park-type passage on the ground of the light-line highway. There is no facility such as house, commercial building, factory, etc. within about 200 meters, and there is no facility such as the house, commercial building, factory, etc. within the radius of about 200 meters, there are 16 small-scale internal factories and one house at the branch located within the radius of not less than 200 meters, which is separated by the ridge lines and trees in mountain.

Therefore, in light of the size of the parking lot to be installed in the instant land and the above surrounding land distribution status, etc., the proposal of the instant case meets the criteria such as ‘to secure parking lots so as not to impede traffic flow in surrounding areas due to vehicles using driving range.'

Thus, the plaintiff's proposal of this case or the proposal of this case satisfies all the strict standards of the law on the establishment of driving range.

㈐ 2020공원녹지기본계획에의 저촉 여부에 관하여

(a) According to the basic plan for parks and greenbelts 2020, the Defendant, as seen earlier, stated that “the Gubong Unpark is classified into a Dobong Unpark under the former Urban Park Act and a salary-free urban natural park area, and the present proposal was a plan to designate as an urban natural park area among them. Therefore, the present proposal is based on the instant disposition, asserting that “a golf practice range cannot be established under the relevant provisions, such as the former Urban Park Act.”

(b) Therefore, according to the above special provisions of the Act on the Management of Urban Parks and Greenbelts, and the transitional provisions of the Addenda of the Act on the Management of Urban Parks and Greenbelts, "special provisions of the Act on the Management of Urban Parks and Greenbelts" and "the transitional provisions of the Enforcement Rules of the Act on the Management of Urban Parks and Greenbelts" provide that "the establishment or alteration of park facilities in the existing urban natural park in accordance with the previous Act on the Management of Urban Parks and Greenbelts shall be governed by the previous Act on the Construction of Park Facilities in the existing urban natural park in accordance with the Urban Park Act" or "the former Act on the Construction of Park Facilities in the existing urban natural park in accordance with the former Act on the Management of Urban Parks and Greenbelts" shall be governed by the former Act on the Management of Urban Parks and Greenbelts" (the former Enforcement Rules).

Therefore, the law applicable to the disposition of this case is not a relevant provision such as the former Urban Park Act, and it is not a relevant provision such as the former Urban Park Act. Therefore, the defendant's above assertion is without merit on different premise.

In addition, the former Act on the Establishment and Management of Urban Park in order to expand and manage urban parks and greenbelts in compliance with the needs of urban citizens, and to protect the natural environment and landscape of cities, as well as to provide sound leisure and resting space for urban citizens. On the other hand, the relevant provisions, such as the former Act on the Parks and Greenbelts in Urban Natural Park, etc. concerning urban natural park areas, have mitigated restrictions on and restrictions on the use of land in urban natural park areas, rather than restrictions on and restrictions on activities under the relevant provisions of the former Act on the Land in Urban Natural Park in order to minimize damage to the owners of land located in urban natural park areas. Furthermore, according to the “Guidelines on the Designation, Alteration, etc. of Urban Natural Park Areas (Notice No. 2007-39 of the Ministry of Construction and Transportation, Feb. 6, 2007)” established and announced by the Minister of Construction and Transportation, urban parks are already installed or needed to be installed in urban park areas, and are not necessary to create urban parks in mountainous areas, but need to be changed into the current area of land and its advantage.

In addition, according to Article 27(1) and (3) of the former Act, Articles 26, 30, and 30 [Attachment 2] and attached Table 3 of the Enforcement Decree of the Act, “a golf practice range of not more than 10/100 of the area of a golf course and a golf practice range of not more than six holes” may be established in an urban natural park area. However, it is clear that the installation of a golf practice range of not more than six holes and a golf practice range of not more than 10/100 of the area of a golf practice range is much more severe than that of a golf practice range.

Therefore, the former Urban Park Act separates and convertss urban natural parks under the former Urban Park Act into urban parks and urban natural park areas, and sites for urban parks that require park creation among them shall be created by the State, etc. after acquiring them, and urban natural park areas need to be restricted and regulated in order to protect the natural environment and scenery of the city and to provide city residents with sound leisure and rest spaces. However, in light of the legislative intent of relaxing restrictions and regulations on the activities of using land in urban natural park areas rather than restrictions and restrictions on activities under the relevant provisions of the former Urban Park Act concerning land within the area, in order to minimize damage to the owners of land within the area, it cannot be deemed that a golf practice range is completely prohibited to install only less than 6 holes and golf practice ranges than 10/100 of the area of a golf practice range in urban natural park areas, while allowing a golf practice range to be installed within the area of urban natural park areas, such as trees, etc. Therefore, the installation of a golf practice range in the relevant provisions such as the former Urban Park Act cannot be deemed to have been entirely permitted within the area of a golf range not more than 60 percent.

However, the proposal of this case is located at the south edge of the Dobong-gu Urban Natural Park Zone, and is relatively fluorous land being used as a tree, and there is no self-training tree that is under the growth, it is completely cut off from the ridge of the field mountain, and it is difficult and practical to say that the mountain is within the Dobong-gu Urban Park Zone, and that the mountain is still within the mountainside zone, and it is surrounded by the ridge and the soundproof walls of the gluor road, and even if a golf driving range is established at that place, it does not impair the function, landscape, function, natural environment and landscape of the Dobong-gu Urban Park Zone, as well as the gluoral Park, even if a golf driving range is installed at that place. Accordingly, the proposal of this case, which establishes a golf driving range in the proposal of this case, does not conflict with the 2020 master plan, and therefore, the defendant's above assertion in this regard is without merit.

㈑ 도시공원위원회의 심의와 관련하여

The advisory opinion of the Urban Park Committee on the proposal of this case is that "the consultation opinion of the Urban Park Committee on the proposal of this case shall not exceed 20% of the total park area. According to the relevant provisions of the former Urban Park Act, it exceeds the above criteria if the proposal of this case is included in the park facilities area of the Gu Park Park. The preferential time and similar civil petition may occur when adjusting the park facilities area. The proposal of this case is impossible to install a driving range in the site of this case due to traffic inconvenience in the access road of the city of this case, deterioration in the neighboring village environment and natural landscape, impairment in the natural landscape, damage to ecosystem and soil contamination, etc." It is clear that such advisory opinion of the Urban Park Committee is merely an advisory opinion, and it is not external binding, and it is apparent that the concerns about preferential time costs and similar civil petition among the contents thereof are unreasonable in light of

Therefore, the defendant's argument that the plaintiff's proposal of this case cannot be accepted is without merit, because there is a advisory opinion from the Urban Park Committee that it is impossible to establish a golf range.

㈒ 이 사건 제안지에 관한 자연환경 및 경관 등의 보존 필요성에 관하여

The proposal of this case is located in the valleys, and is used as a farm that cultivates seedlings, and there is no trees for self-training. Since the erosion control is surrounded by the ridges and soundproof walls of the Hemsan Highway, it does not seem to be in the surrounding areas as well as the flue river parks and mountain fences within the Hemsan Urban Natural Park Zone, there is little value or need to preserve the natural environment and scenery.

㈓ 골프연습장 설치에 관한 공익상 필요성 존부에 관하여

Golf is a campaign for citizens to effectively improve their mental and physical health and make use of their leisure time. The recent demand for improving health and making use of their leisure time increases significantly. Accordingly, golf course has been continuously established in various regions across the country, and there are 13 neighborhood parks in Daegu Metropolitan City, 6 urban natural parks, 2 amusement parks, among them, there are 13 neighboring parks, 2 amusement parks, and mountain natural parks.

However, in the surrounding areas of the proposed land of this case, the population has continuously increased due to the implementation of the development project, such as Ethole Lease and the attraction of innovative cities, by entering residential and commercial facilities including apartment houses, while there is no golf practice range in the vicinity of the surrounding areas. Accordingly, there is no choice but to find golf extension of the Daegu Northern-gu and Gyeongsan-si located in a remote distance for golf practice.

Therefore, the establishment of a golf practice range in the instant proposal not only accords with the public interest, such as improving mental and physical health and providing the surrounding citizens with a space for making good use of their leisure time, but also, in light of the fact that sports facilities such as the deaf-gu park, the sprink, the sprink, and the sprink are installed in the Gubong Unpark, it can ultimately contribute to promoting its utility by harmonizationing with the functions of the Gubong Park or the spund Park and the spund Park

【Finality

The instant disposition is unlawful because it deviates from and abused discretion on the establishment of administrative plans on the same grounds as above, and thus, it should be revoked. Therefore, the Plaintiff’s assertion on this part is reasonable.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted due to its reasons, and since the judgment of the court of first instance is unfair with different conclusions, it shall be revoked by accepting the plaintiff's appeal, and it shall be so decided as per Disposition by accepting the plaintiff's claim of this case seeking the revocation of the disposition of

[Attachment Omission of Related Acts]

Judges Lee Jae-dae (Presiding Judge)