Court Cancels Construction Suspension Order for Geomdan New Town 'Wangneung View Apartment'... "Not Subject to Permit"

"It is also difficult to definitively state that the view rights of Gimpo Jangneung are being infringed"

New apartment complex obstructing the view of Jangneung in Gimpo.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Cultural Heritage Administration's order to halt construction on apartment buildings being built by construction companies near Gimpo Jangneung, a UNESCO World Cultural Heritage site, without the approval of the Cultural Heritage Administrator, has been canceled by the court.

Considering relevant laws and ordinances, it was determined that the approval of the Cultural Heritage Administrator was not necessarily required, and since the construction was already significantly underway, the private harm caused by demolishing even part of the buildings would be considerably greater than the public benefit gained.

The Administrative Court of Seoul, Administrative Division 6 (Presiding Judge Lee Ju-young) ruled on the 8th in favor of the plaintiffs, construction companies Daekwang ENC and JS Global, in their lawsuit against the Cultural Heritage Administration seeking cancellation of the construction halt order.

The court stated, "According to the Cultural Heritage Protection Act and Gyeonggi-do Cultural Heritage Protection Ordinance, the land in question does not fall within the historical and cultural environment preservation area of Gimpo Jangneung. Therefore, the construction on this land does not require approval from the Cultural Heritage Administrator under Article 35 of the Cultural Heritage Protection Act during the building permit process."

It further explained, "Even if the land were considered part of the historical and cultural environment preservation area of Gimpo Jangneung, the relevant regulations indicate that the view of the mountain behind the tomb (Josan) is not a significant consideration in the 'standards for permissible construction activities within historical and cultural environment preservation areas.' Moreover, the view of Josan is already obstructed by other buildings, making it difficult to conclude that the construction in question infringes on the view rights of Gimpo Jangneung."

The court added, "Therefore, it is difficult to see the construction as an act of installing a building that may impair the landscape of a nationally designated cultural heritage site as defined in Article 21-2, Paragraph 2, Subparagraph 1, Item (a) of the Enforcement Decree of the Cultural Heritage Protection Act. Conversely, there is room to consider that the order in this case involved an abuse or excess of discretion."

In conclusion, the court declared, "Hence, the defendant's order based on a different premise is illegal and is hereby canceled."

The defendant construction companies had purchased residential land developed through the Incheon Geomdan New Town development project and were constructing apartments after obtaining project plan approval.

However, the Cultural Heritage Administration judged that the residential land where the apartments were being built fell within the historical and cultural environment preservation area because it was within 500 meters of the outer boundary of the nationally designated cultural heritage site, Historic Site No. 202, 'Gimpo Jangneung.'

In this case, under Article 35 of the Cultural Heritage Protection Act, approval from the Cultural Heritage Administrator is required to construct buildings exceeding 20 meters in height. The construction companies did not obtain such approval, leading the Cultural Heritage Administration to issue an order to halt construction on buildings exceeding 20 meters in height within 500 meters of the outer boundary of Gimpo Jangneung.

The construction companies filed a lawsuit seeking cancellation of the Cultural Heritage Administration's order, arguing that the land where the apartments were being built did not fall within the historical and cultural environment preservation area, and thus Article 35 of the Cultural Heritage Protection Act did not apply.

The trial focused on several issues: whether the residential land in question falls within the historical and cultural environment preservation area of Gimpo Jangneung; whether the construction requires approval under Article 35 of the Cultural Heritage Protection Act according to the 'Gyeonggi-do Cultural Heritage Protection Ordinance' and the 'Notice on Changes to Standards for Permissible Construction Activities within Historical and Cultural Environment Preservation Areas of 12 Nationally Designated Cultural Heritage Sites including Gimpo Jangneung'; whether the construction constitutes an act of installing or expanding buildings or facilities that may impair the landscape of a nationally designated cultural heritage site as defined in Article 21-2, Paragraph 2, Subparagraph 1, Item (a) of the Enforcement Decree of the Cultural Heritage Protection Act; and whether the Cultural Heritage Administration's order violated the principle of trust protection and involved abuse or excess of discretion, thus being illegal.

Regarding the first issue, the court noted, "Article 13, Paragraph 1 of the Cultural Heritage Protection Act defines the scope of historical and cultural environment preservation areas to be set by ordinance within 500 meters from the outer boundary of the cultural heritage site. Accordingly, Article 5, Paragraph 1, Item 1 of the 'Gyeonggi-do Cultural Heritage Protection Ordinance' stipulates that for residential, commercial, and industrial areas under the National Land Planning and Utilization Act, the preservation area is within 200 meters from the outer boundary, while for green areas, management areas, and agricultural and forestry areas, it is within 500 meters."

It continued, "However, the land in question falls under the third-class general residential area and is located more than 200 meters outside the outer boundary of Gimpo Jangneung. Therefore, in principle, it does not fall within the historical and cultural environment preservation area according to the ordinance."

The court also stated, "Article 5, Paragraph 2 of the 'Gyeonggi-do Cultural Heritage Protection Ordinance' requires that even in areas between 200 and 500 meters from the outer boundary, the impact on cultural heritage must be reviewed when constructing buildings over 10 meters in height. However, considering the relevant regulations collectively, the reviewing body under this provision appears to be the administrative agency responsible for construction permits, and this provision does not expand the scope of the historical and cultural environment preservation area nor impose an obligation to obtain approval from the Cultural Heritage Administrator under Article 35 of the Cultural Heritage Protection Act."

The court added, "Furthermore, it cannot be definitively stated that the construction activity in question constitutes installing a building that may impair the landscape of a nationally designated cultural heritage site as defined in Article 21-2, Paragraph 2, Subparagraph 1, Item (a) of the Enforcement Decree of the Cultural Heritage Protection Act."

As grounds, the court cited: ▲ Currently, from the pavilion (Jeongjagak), which is the main viewing point for visitors, there is virtually no obstruction of the view; ▲ From the perspective of the burial mound's main subject, the view of Gyeyangsan, considered the mountain behind the tomb (Josan), is blocked by the building in question; ▲ According to the Cultural Heritage Administration's directive, 'Guidelines for Preparing Standards for Permissible Construction Activities within Historical and Cultural Environment Preservation Areas,' when reviewing view obstruction of tombs, the focus is on whether the 'Ansan' (the mountain directly opposite the site in Pungsu-jiri, Korean geomancy) is visible from key internal viewpoints, while distant Josan views are not heavily considered; ▲ In fact, other Joseon royal tombs located in urban areas such as Donggureung, Jeongneung, Uireung, and Seonneung-Jeongneung also have their Josan views obstructed by high-rise buildings, and Gimpo Jangneung's Ansan has already been damaged by existing apartments; ▲ These facts were reported during the application for UNESCO World Heritage registration, indicating that the obstruction of Josan views in many Joseon royal tombs and the damaged Ansan at Gimpo Jangneung were already considered; ▲ Even if the upper floors of the building in question were partially demolished as proposed by the defendant (Cultural Heritage Administration), the view of Gyeyangsan would still be mostly blocked by other newly constructed apartments located outside the 500-meter boundary, making it difficult to conclude that the construction alone severely damages the cultural heritage landscape or that halting construction or demolition would restore the view.

Finally, the court pointed out, "At the time of the order, the building's framework was already completed, and halting construction would cause significant financial damage to the plaintiffs and prospective buyers, whereas the benefits gained from the order or partial demolition are not substantial or are minimal. Therefore, the private harm caused by the order is not insignificant compared to the public interest it aims to achieve, and considering the principle of proportionality, there is room to consider that the order involved abuse or excess of discretion."

Previously, the Cultural Heritage Administration ordered the suspension of construction on 19 out of 44 apartment buildings, totaling about 3,400 units, built by construction companies including Daekwang ENC, JS Global, and Daebang Construction in Geomdan New Town. However, the court accepted the construction companies' request for a suspension of execution, allowing construction to proceed without major disruption.

Gimpo Jangneung is the tomb of Wonjong (1580?1619), the fifth son of King Seonjo of Joseon and father of King Injo, and his wife Queen Inheon (1578?1626). It is designated Historic Site No. 202 and is included among the 40 Joseon royal tombs registered as UNESCO World Cultural Heritage.

The first trial verdict for a similar lawsuit filed by Daebang Construction against the Cultural Heritage Administration is scheduled for August 19.