Land Attorney Recommendation Case | Succeeded in Confirming the Nullity of a Road Designation Disposition with the Help of a Land Attorney

A land attorney will explain the purpose and procedure of road designation and public notice.

A road as referred to in the Building Act is a road at least four meters wide that allows pedestrian and vehicular passage, and means a road or planned road whose location was designated and publicly notified by a mayor, county governor, or head of a district office, and so forth, at the time of a building permit.

Conditions of a road

1. It must allow pedestrian and vehicular passage

2. At least 4m wide

3. It must be a road whose location has been designated and publicly notified

In order to construct a building on a site without a road, the road designation and public notice procedure must be undergone.

-In road designation and public notice, the permitting authority designates the location at the time of the building permit (report)

-The permitting agency publicly notifies on its website or notice board, stating the location, section, width, and area of the road, whether the consent of the landowner has been obtained, and so forth

-It is recorded in the road management register for management

A road designated through this process is recognized as a road under the Building Act.

However, obtaining the consent of interested parties at the time of road designation and public notice is mandatory.

(Interested parties: the owner of the land (road), the owner of a site adjoining the road, and so forth)

The land attorney pointed out that the consent of the client, who was an interested party, had never been sought for the designation and public notice of the road location, and pointed out that the procedure under the Administrative Procedures Act had not been complied with.

This is an act in violation of Article 45 of the Building Act.

Building Act Article 45 (Designation, Abolition, or Modification of Roads)

(1) Where a permitting authority intends to designate and publicly notify the location of a road pursuant to Article 2 (1) 11 (b), it shall obtain the consent of interested parties to that road as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. Provided, that where any of the following applies, it may designate a road through deliberation by the building committee without obtaining the consent of interested parties.

1. Where the permitting authority recognizes that it is difficult to obtain the consent of interested parties for reasons such as the interested parties residing overseas

2. Where it is a de facto passage that residents have used as a passage for a long time and is prescribed by the ordinance of the relevant local government

(2) Where a permitting authority intends to abolish or modify a road designated pursuant to paragraph (1), it shall obtain the consent of interested parties to that road. The same shall apply where the owner of land incorporated into the road, the building owner, and so forth, applies to the permitting authority for the abolition or modification of a road designated pursuant to paragraph (1).

(3) Where a permitting authority designates or modifies a road pursuant to paragraphs (1) and (2), it shall record and manage this in the road management register as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.

The land attorney pointed out that the road was so narrow in width that vehicles could not pass.

As noted earlier, the first of the conditions for a road designated under the Building Act is that it "must allow pedestrian and vehicular passage."

The land attorney emphasized that, because the width did not permit vehicular passage, it could not be designated as a road, and that the disposition in this matter violated an important part of the statute.