Whether the requirements for permission for development activities under Article 56 of the National Land Planning and Utilization Act are satisfied or not belonging to the area of discretionary judgment of an administrative agency (affirmative), and whether an administrative agency may refuse repair in cases where a construction report deemed to have obtained permission for development activities under the National Land Planning and Utilization Act fails to meet the criteria for permission for development activities under the above Acts and subordinate statutes (affirmative)

Article 56 of the National Land Planning and Utilization Act, Articles 11(5) and (6), and 14(2) of the Building Act

Supreme Court en banc Decision 2010Du14954 Decided January 20, 201 (Gong2011Sang, 427) Supreme Court Decision 2016Du35762 Decided August 24, 2016 (Gong2016Ha, 1389) Supreme Court Decision 2017Du48956 Decided October 12, 2017 (Gong2017Ha, 2128)

Plaintiff 1 and one other (Law Firm LLC, Attorneys Kang Young-soo et al., Counsel for the plaintiff-appellant)

Ulsan Metropolitan City Head of Ulsan Metropolitan City (Law Firm International, Attorneys Lee Young-young et al., Counsel for the defendant-appellant)

Busan High Court Decision 2016Nu24366 decided June 2, 2017

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

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On December 2, 2015, Plaintiff 1 issued a construction report, including permission for development, permission for diversion of farmland, report on installation of private sewage treatment facilities, etc. to construct a single-story house of 86.49 square meters on the land in Ulsan-gun, Ulsan-gun, Ulsan-gun, to the Defendant on December 2, 2015. On December 8, 2015, Plaintiff 2: (a) filed a construction report, including permission for development, permission for diversion of farmland, and report on installation of private sewage treatment facilities, with a view to newly constructing a single-story house of 86.49 square meters on the land in ( Address 1 omitted); and (b) land ( Address 2 omitted); and (c) land (number 3 omitted); and (d) land is referred to as “the instant building report”; and (c) land is referred to as “each of the instant building reports”; and (d) the Plaintiffs’ building report.

B. On January 4, 2016, the Defendant notified the Plaintiffs of the refusal to accept each of the instant building reports on the ground that “In the event a detached house is isolated due to lack of urban infrastructure (road, water supply, sewage, etc.), the application area is likely to damage the natural environment and water pollution around the ○○ Dam used as an food source if necessary, and the instant land is not in compliance with the standards for permission for development activities (the relevant area and its surrounding area should not be likely to cause any environmental pollution, ecosystem destruction, damage, etc. due to air pollution, water pollution, soil pollution, noise, vibration, dust, dust, dust, etc.)” (hereinafter “instant disposition”).

C. Around June 2014, the Nonparty, who was the initial owner of the land, divided the above land into (No. 4 omitted), (No. 1 omitted), and (No. 5 omitted) and subsequently applied for a building permit for three parcels of land to the Defendant, but all of the application for a building permit was withdrawn, and (No. 4 omitted), without implementing supplementary matters, filed a building report for only the land (No. 4 omitted) and sold the instant land to the Plaintiffs.

D. The instant land belongs to the “Preservation Management Area” as stipulated by the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and there is ○○ho Lake in the vicinity, and approximately 1.45 km away from the village near ○○ Dam. In the vicinity of the instant land, trees are cut off, except for the land in the state of the site (road address 4 omitted), plastic houses, and multiple houses, and Plaintiff 2 currently cultivates the instant land as dry field.

E. The instant land does not have any water supply and sewerage facilities, and where construction on the ground is intended, it is necessary to cut, fill, stop, and pack the instant land.

F. Meanwhile, around October 2014, the Defendant accepted a building report on the construction of a detached house on the land located in a production management area ( Address 6 omitted) and accepted a building report on the construction of a detached house on the land located in Ulsan-gun, Ulsan-gun, a conservation management area from September 2013 to July 2015, respectively.

2. A. Permission for development activities under Article 56 of the National Land Planning and Utilization Act is granted to an administrative agency to determine whether the requirements and criteria for permission are met with uncertain concepts. Thus, whether the requirements for permission for development activities are satisfied belongs to the discretionary jurisdiction of the administrative agency. Furthermore, the acceptance of a report on construction involving changes in the form and quality of land within a specific specific specific-use area as prescribed by the National Land Planning and Utilization Act is deemed to have the nature of permission for construction activities under the Building Act and the National Land Planning and Utilization Act due to the legal fiction of authorization and permission under Articles 14(2), 11(5), and (6) of the Building Act. Thus, if a building report deemed to have obtained permission for development activities under the National Land Planning and Utilization Act fails to meet the requirements for permission for development activities under the National Land Planning and Utilization Act, such acceptance may be refused on the ground thereof (see Supreme Court en banc Decision 2010Du14954, Jan. 20, 201).

B. We examine the above facts in light of the content of the relevant statutes and the aforementioned legal doctrine.

(1) In order to newly construct a detached house on the instant land located within the conservation management area and the instant land, the requirements for permission for development activities under the National Land Planning Act and subordinate statutes shall be satisfied to accept each building report. However, the National Land Planning Act and subordinate statutes stipulate that “the land utilization conditions in the surrounding area or the land utilization plan, the height of buildings, gradient of land, trees, water drainage, water drainage, drainage of river, lake and marsh, etc., or surrounding environment or scenery,” and “the construction of buildings (including any alteration of the form and quality of land for construction) shall not be permitted for an area where no road, waterworks and sewerage are installed” and “the construction of a building (including any alteration of the form and quality of land for construction) shall not be permitted for such area and its surrounding area,” as “the occurrence of environmental pollution, water pollution, soil contamination, noise, vibration, vibration, dust, etc., caused by the development activities, shall not be likely to occur due to environmental pollution, ecosystem destruction, damage, etc.” (Article 58(1) of the National Land Planning Act, attached Table 1-2).

(2) ① The instant land does not have a water supply and sewerage system, and thus does not meet the development permit standards stipulated under the National Land Planning Act and subordinate statutes. In and around the instant land where no water supply and sewerage system is installed, there seems to exist concerns over environmental pollution and destruction of ecosystem in the surrounding areas including ○○ and its surrounding areas. ② Even if there is room for somewhat relaxing the concerns about such environmental pollution and ecosystem destruction through additional methods on the condition of installation, etc. of sewage treatment facilities, it is difficult to deem that it still conforms to the standards stipulated under the National Land Planning and Utilization Act and it is difficult to deem that there is no possibility of environmental pollution, etc. by adding such conditions to the instant land. ③ In and around the instant land, it cannot be deemed that the instant construction report is in harmony with the surrounding natural environment or landscape. ④ If the instant building report is accepted, it is difficult for the Nonparty to apply for a construction permit for three lots of land including the instant land, and to cancel the building report and to prevent the building report from being repaired by the neighboring land without implementing the construction permit, etc., and eventually, it is difficult for the Defendant to repair the instant land.

In full view of all these points, it is difficult to deem that each of the instant building reports failed to meet the criteria for permission for development activities under the National Land Planning Act and subordinate statutes, and that the Defendant

(3) Nevertheless, the lower court determined otherwise by misapprehending the principle of proportionality and equality to the instant disposition, on the grounds that it is difficult to deem that the surrounding environment is likely to be contaminated due to the construction of the Plaintiffs’ detached housing.

In conclusion, the lower court erred by misapprehending the legal doctrine on the interpretation and application of the criteria for permission for development activities, and deviation and abuse of discretionary power, etc., thereby adversely affecting the conclusion of the judgment. The grounds for appeal

3. 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 on the bench.

Justices Ko Young-han (Presiding Justice)