(영문) 부산지방법원 2015.10.30.선고 2015구합21989 판결

1. The Defendant’s refusal to grant permission to the Plaintiffs on March 24, 2015 and the disposition of refusal to consult on the items to be transplanted and the trees to be cut on August 5, 2015, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On October 30, 2013, the Busan Metropolitan City Mayor published an urban management plan (a sports facility, road) decision (construction, change) and topographic map in accordance with Articles 30 and 32 of the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) with respect to urban planning facility projects (hereinafter referred to as the “instant project”) according to a golf course development project in the Busan Metropolitan City’s District Office C Day, Busan, the Busan Metropolitan City Mayor announced the urban management plan (a public announcement of Busan Metropolitan City E).

B. On January 1, 2014, the Plaintiffs were designated and publicly notified as the implementer of the instant project (the new date for the authorization of the Busan Metropolitan City Public Notice F and the implementation plan: Within six months from the date of the designation and public notice of the project implementer: the date of application for the authorization of the implementation plan to G public notice of Busan Metropolitan City was extended within 12 months from the date of the designation and public notice of the project implementer) and the Mayor of Busan Metropolitan City applied for the authorization of the implementation plan of the instant project to the head of Busan Metropolitan City on May 21, 201

C. The head of Busan Metropolitan City requested the Defendant to hold consultation on the construction permit related to the instant project prior to the authorization of the implementation plan, and the Defendant respondeded to the Busan Metropolitan City Mayor on December 8, 2014 as follows:

The project area of this case is a clean area that is considered as a hand from the captain-gun, and there are problems such as residential environment degradation and natural environment destruction, groundwater exhaustion, damage to crops, soil and sand outflow, and change of marine animals and plants, etc.In the present situation, construction is difficult later, a mutual consensus is formed with the residents of neighboring villages under individual laws and regulations, and approval without residents' consent is absolute.

D. On December 26, 2014, the Busan Metropolitan City Mayor, upon receipt of the opinions from the Defendant, issued a disposition to authorize the implementation plan for the instant project, and added the conditions of authorization that contain the following:

2. With respect to the construction of the construction of the instant project, the Defendant wishes to dispose of the instant project in accordance with the Building Act on the grounds that a consensus with the residents on the damage to the residential environment, destruction of the natural environment, and relocation measures for residents is required. As such, the Plaintiff needs to obtain a building permit separately from the Defendant. 6. On the grounds that various civil petitions and civil and criminal matters arising from the instant project are resolved at the project’s responsibility and burden, and that civil petitions are likely to occur, the construction should be implemented after consultation with the relevant local residents. On the 15th day, the area subject to consultation is restricted to the movement of pine trees pursuant to Article 10 of the Special Act on the Prevention of Fulmanal Disease Disease in the Area where the removal of pine trees is prohibited, and the trees subject to transplantation and the trees subject to felling should be treated after consultation with the

E. On March 10, 2015, the Plaintiffs: (a) filed an application with the Defendant for a building permit as indicated in attached Table 1 (hereinafter “application for the instant building permit”); (b) on March 15, 2015, the Plaintiffs agreed to enter into an agreement on the instant project with the Defendant that “the Plaintiff shall pay KRW 610 million with the Village Development Fund; (c) the representative of the neighboring residents shall actively cooperate in the instant project at the same time as he/she receives the Village Development Fund; and (d) shall not bear any civil and criminal responsibility for all damages incurred in the construction and operation of golf courses; and (e) paid all the agreed development funds following the date.

F. After March 24, 2015, the Defendant rendered a non-provisional disposition on the instant application for construction permit on the following grounds (hereinafter “non-provisional disposition on the instant building permit”).

1. Where a golf course is created in a clean area with a view to surrounding landscape, the environmental grade is significant, and where it is anticipated that serious damage, such as a residential environment degradation, destruction of the natural environment, exhaustion of groundwater, damage to agricultural crops, soil and sand outflow, and change of marine Dongs and plants, etc., will inevitably occur in the surrounding areas, including the site where the implementation of the project is applied, and 2. Up to the upper region of the river basin, the upper region of the river basin, which is caused by a rapid change in the natural environment, a lack of flow for the maintenance of the natural river, a lack of flow for the maintenance of the natural environment, a lack of water flow for the maintenance of the natural river, and a pollution of the river, etc., caused serious damage to the income sources of residents who run a fishery business, such as a fryed fish plantation at the front sea of the N-sea, which is under the bottom of the ground;

A large number of residents' damage is likely to occur, and 3. In addition, since 0 golf courses and 3 other golf courses are already operated within the jurisdiction of the plane captain-gun, it has a sufficient capacity to the extent that there is no problem in the use of golf use population, so it is impossible to find the justification that only permission should be granted to the relevant area, and it is likely to cause adverse effects on the surrounding area, which is caused by the adverse effects on the surrounding area.

G. In addition, on April 8, 2015, the Plaintiff requested the Defendant to hold consultation on the trees subject to transplant and felling in accordance with the conditions for authorization of the implementation plan (Article 15). However, the Defendant rejected the request for consultation to the effect that it would pre-performance agreement with the residents in direct and indirect influence (hereinafter referred to as “instant refusal disposition”), since there is no civil petition against the residents, such as environmental damage, etc. on May 8, 2015.

H. Upon filing the instant lawsuit on May 11, 2015, the Plaintiff filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission, but was dismissed on June 23, 2015 of the same year. (No dispute exists, Gap’s 1 through 10, 36, 37, 38, Eul’s 1 and 2 (including each number, including numbers, if any), and the purport of the entire pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Since the Busan Metropolitan City Mayor issued a disposition to authorize the instant project implementation plan through consultation with the Defendant, the head of the relevant administrative agency, pursuant to Articles 88 and 92 of the National Land Planning and Utilization Act, the Plaintiff is deemed to have obtained the instant building permit from the Defendant. Nevertheless, the reason behind adding the Defendant’s building permit to the condition of authorization is merely the purport that the Defendant should grant the instant building permit to the Plaintiff when the Plaintiff forms a consensus with the residents on the instant project. Therefore, the instant disposition rejecting the Plaintiff’s application for the building permit is unlawful, even though the Plaintiff agreed on the instant project with the representative of neighboring residents.

2) Even if the condition that the Defendant’s building permit should be granted to the authorization of the implementation plan of the Busan Metropolitan City Mayor, the building permit under the Building Act is a binding act. Although the Plaintiff’s application for the building permit does not contravene the laws and regulations, the disposition rejecting the instant building permit was unlawful.

3) Even if the actual construction act is a discretionary act, in light of the following: (a) the Plaintiffs agreed on the instant project with neighboring residents; (b) completed an environmental impact assessment by completing consultation with the Busan Metropolitan City Mayor and the Korea Environment Agency for the Nakdong River Basin; (c) the Plaintiffs paid enormous costs of KRW 45 billion in total, including alternative forest creation cost for the implementation of the instant project; and (d) the public interest claimed by the Defendant is irrelevant to the fact, and thus, the share of the value of the instant building permit and the share of the rejection of the instant consultations are unlawful by abusing and abusing two discretionary power.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Whether construction permission is deemed granted

Article 92 (1) 1 of the National Land Planning and Utilization Act provides that "When the Minister of Land, Infrastructure and Transport, the Mayor/Do Governor, or the large city mayor approves an implementation plan pursuant to Article 88, matters about which the construction permit under Article 11 of the Building Act has been consulted with the head of the relevant administrative agency shall be deemed to have been obtained."

As seen earlier, the Mayor of Busan Metropolitan City requested consultation on the matters regarding the building permit to the Defendant, who is the person holding the building permit related to the instant project. However, in light of the fact that it is difficult to deem that the head of Busan Metropolitan City requested consultation with the Defendant on the instant building permit solely based on the fact that the head of the relevant Busan Metropolitan City requested consultation on the instant building permit, and that the consultation on the instant building permit is deemed deemed to have been deemed to have been deemed to have been deemed to have been an agenda for the building permit, inasmuch as the Defendant’s response to the said request, the purport of the authorization and permission system, and the reduction of expenses and hours by simplification

On the other hand, this part of the plaintiffs' assertion is without merit.

2) Whether it is a indecent act

Unless the application for a building permit is in conflict with any limitation stipulated by the relevant laws, such as the Building Act, a building permit holder shall grant a building permit under the relevant laws and regulations as a matter of course. Thus, the examination of whether the application is in conflict with the limitation stipulated by the relevant laws and regulations without any legal basis, and where the application is in conflict with the legal requirements as a result of the examination, it shall be permitted unless there are special circumstances. Notwithstanding the fact that there is no need for public interest, permission to a person meeting the requirements shall not be refused for reasons other than the grounds for restriction stipulated by the relevant laws and regulations (see, e.g., Supreme Court Decisions 2006Du1227, Nov. 1, 99; 192Nu3038, Nov

However, in preparing or approving an implementation plan for an urban planning project under the National Land Planning Act, if an applicant submits related documents at the time of application and if the Minister of Land, Infrastructure and Transport or the Mayor/Do Governor pre-consults with the head of the relevant administrative agency, he/she shall be deemed to have obtained a building permit under Article 11 of the Building Act for the relevant implementation plan (Article 92(1)). The approval or modification of an implementation plan for an urban planning project is a so-called beneficial administrative disposition that entails the effect of granting rights or interests to the other party, and unless otherwise expressly provided for in the statutes, it shall be deemed that the permission for an urban planning facility falls

Therefore, this part of the plaintiffs' assertion on the premise that the building permit for the project of this case is a binding act is without merit.

3) Whether the discretionary authority is deviates or abused

The judicial review of discretionary action is to examine only whether the act in question is a deviation or abuse of discretionary power without drawing an independent conclusion, taking into account the room for determining the public interest based on the discretion of the administrative agency. The examination of whether such discretion is deviates or abuse is subject to such determination, such as misunderstanding of facts, violation of the principle of proportionality and equality, etc. The administrative initiative must make reasonable decisions within the scope of reasonable and reasonable discretion, and otherwise, if not, it is unlawful as it abused the given discretion (see, e.g., Supreme Court Decision 2014Du274, May 16, 2014).

In addition to the aforementioned evidence and the statements in Gap evidence Nos. 11 through 35, the plaintiffs conducted a preliminary examination of environmental impact for the project of this case from Jun. 18, 2010. The plaintiffs completed the environmental impact assessment on Dec. 12, 2014 through the review by the Busan Metropolitan City Mayor and the Seo River basin Environmental Office, the submission of opinions by interested parties, the inspection and public notice to hear the opinions of interested parties, and discussions on the investigation of the natural environment related to the project of this case. On Dec. 26, 2014, the Busan Metropolitan City Mayor did not allow the execution plan of the project of this case as of Dec. 26, 2014.

Therefore, each of the dispositions of this case should be revoked because it is illegal as it deviates from or abused discretion in violation of the principle of proportionality, etc.

3. Conclusion

If so, the plaintiff's title is justified and the disposition of this case is revoked.