Frank Sun
The Supreme Administrative Court rendered the 108-Pan-589 Decision of December 26, 2019 (hereinafter, the “Decision”), holding that a party’s denial of access to a road by land owners within the community does not change the nature of the land being used as a community road under a development and construction project; and, therefore, the land use does not violate the control regulations.
According to the facts underlying this Decision, the land at issued owned by University A, a third party, fell within the scope of a development and construction project (hereinafter, the “Project at Issue”) of a certain local government before its restructuring and was a land set aside for special purpose enterprises in a slope land conservation area. The Appellant set up a control post on the land to control access to the community. The Appellee believed that the community road system should be provided for the access of the community residents according to the contents of the Project at Issue. However, the Appellant’s control post blocked the access of land owners within the community in violation of the development purposes of the Project at Issue. Since the Appellee held that this constitutes land use control under Article 15, Paragraph 1 of the Regional Plan Law, a fine was imposed on the Appellant in accordance with Article 21, Paragraph 1 of the same law. The Appellant was also required to provide access to community residents to comply with the purposes of the development project on the day the Appellee’s disposition was received. If no rectification was made, a penalty would be imposed successively pursuant to the Regional Plan Law. Dissatisfied, the Appellant brought an administrative action to set aside the decision on administrative appeal and the original disposition. After the original decision was rendered to dismiss the action, the Appellant appealed.
According to the Decision, the control regulations for non-urban lands, which are not regulated under Article 11 of the Regional Plan Law, shall be set by the central competent authority pursuant to Article 15, Paragraph 1 of the same law. The Ministry of the Interior formulated the Regulations Governing the Control of Non-urban Lands based on such authorization. Under Article 6, Paragraphs 1 and 3 of the Regulations Governing the Control of Non-urban Lands effective at the time of the act, non-urban lands which have been zoned with its land use type delineated should be used according to the permitted use items and permitted use details. All types of permitted land use items, permitted use details and their ancillary terms for lands other than marine areas are set forth in Schedule 1, which mentions that for lands set aside for special purpose enterprises, the permitted use items are governed by the plan of the special purpose enterprise concerned. In addition, Article 14, Paragraph 3 provides that if an application is required to change the zoning of the land for the development of a non-urban land, the use control and development and construction for the land should be governed by a development plan and its permitted terms under a development permission or development approval granted by the agency preparing the zoning plan, and it is not permitted to directly use Schedule 1 of Article 6 as other permitted use items or permitted use details outside of the development plan.
It was further indicated in the Decision that since the land at issue, which is supposed to be used as a community road according to the Project at Issue, was used as a road according to the contents of the project, such use meets the purposes for controlling the use of non-urban lands. Although the Appellant denied the access to the road by land users in the community, still this did not change the nature of the land at issue being used as a community road according to the Project at Issue and had nothing to do with its purposes of use. Since this had nothing to do with control items such the intensity of land use, zoning change or change of delineation, this does not give rise to the issue of violation of land use regulations. As for the disputes between the Appellant and the owners of four parcels of lands (Lot Nos. 123-5) over the access to the community where the lands at issue are located, they are private right disputes. Therefore, the decision rendered by original trial court, which held that the Appellant’s behavior violated land use control regulations and imposed penalties accordingly, is unlawful for violation of laws and regulations since it erroneously applied Article 15, Paragraph 1 and Article 21, Paragraph 1 of the Regional Plan Law. In addition, the Supreme Administrative Court held that since it could render a decision on its own based on the facts ascertained by the original trial court, the original decision was reversed and the decision on administrative appeal and the original disposition were set aside.