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  • Interpretation
  • No.406
  • Date
  • 1996/06/21
  • Issue
    • Does the additional restriction that a building permit shall not be issued until a detailed plan has gone through legal procedures contradict the property right of the people protected under the Constitution, and is it therefore inapplicable?
  • Holding
    •        The “other matters required to be specified” as referred to in Article 15, Paragraph 1, Subparagraph 10, of the Urban Planning Act refer to other matters of similar nature to those provided under Subparagraphs 1 through 9 of said Article and are required to be specified in the Master Plan.  There should be no further restriction, or specification or provision to the contrary regarding matters that have been expressly provided by law.  The proviso of Paragraph 2 of Article 17 of said Act provides: “Where the Master Plan was announced more than two years earlier and the building line or major public facilities have been confirmed as being completed per the Master Plan, a building permit may be issued, per the provisions of related building ordinances, for the building line designated by the regulatory building authority”.  The purpose is for the case where restrictions regarding the use of building and alteration of terrain (first sentence of Paragraph 2 of said Article) are imposed upon a piece of land for urban planning, for reason that a detailed plan has not been announced two years following the announcement of the Master Plan, in circumstances where the building line may be designated, an application may be filed, per the provisions of related building ordinances, for the designation of a building line for the issuance of a building permit, so as to remove the restriction on building and to protect the constitutional right of the people to have the freedom to use property.  The interpretation letter issued by the Ministry of the Interior dated February 20, 1984, Ref. No. (73)-Tai-Ne-Ying-213392 commented in summary that: even if two years have elapsed since the announcement of the Master Plan, if the “Master Plan” contains the provision that “Application for a building permit shall not be submitted until a detailed plan has been drawn up, and shall be handled per the urban land rezoning approach as much as possible”, the application submitted by the people for a building permit is still subject to rejection.  This interpretation clearly exceeds the scope of the aforesaid Article and imposes an additional restriction not provided in the law.  This contradicts the constitutional purpose to protect the property right of the people, and should not be applicable.
  • Reasoning
    •        Under Paragraph 1 of Article 15 of the Urban Planning Act, in respect of urban planning for cities and towns, a Master Plan should first be drawn up.  Under Subparagraph 10 of said Article and Paragraph, “other matters required to be specified” may be specified in the Master Plan.  However, said “other matters required to be specified” refer to other matters of similar nature to those provided under Subparagraph 1 through 9, thereof and are required to be specified in the Master Plan. There should be no further restriction, or specification or provision to the contrary regarding matters that have been separately and expressly provided by law.  Otherwise, it will contradict Article 172 of the Constitution.  Further, Paragraph 1 of Article 17 of the Urban Planning Act provides that: in respect of the implementation schedule provided for in Subparagraph 9 of Paragraph 1 of Article 15, the priority should be set in accordance with the development trend and local fiscal capability concerning the planned area.  A detailed plan for the area designated for Phase I development should be completed within two years after the Master Plan has been announced for implementation, and construction of public facilities should be completed within five years after the announcement of said detailed plan.  Detailed plans and construction for other areas should be drawn up in proper sequence after Phase I development has gotten under way.  Paragraph 2 of said Article provides that “Areas for which a detailed plan has yet to be announced should be subject to restrictions on the use of building and alteration of terrain”. It is granted that the foregoing aims for the successful implementation of the urban planning project and therefore is necessary so as to promote public interests.  However, the property right of the people protected under the Constitution should not be infringed upon lest they have no freedom to use the land or building, as a result of the regulatory authority’s delay and failure to announce a detailed plan within two years following the implementation of the Master Plan.  Therefore, the proviso of said Paragraph provides: Where the Master Plan was announced more than two years earlier and the building line or major public facilities have been confirmed as being completed per the Master Plan, a building permit may be issued, per the provisions of related building ordinances, for the building line designated by the regulatory building authority.  Accordingly, in respect of the Master Plan drawn up per Paragraph 1 of Article 15 of said Act, the regulatory authority may provide for other matters of similar nature as compared to those provided under Subparagraph 1 through 9 of said Article but have not been provided under said Subparagraphs, but may not provide in Subparagraph 10, regarding other matters, that “a building permit should not be issued unless and until a detailed plan has gone through legal procedures” so as to exclude the applicability of the provision that “Where the Master Plan was announced more than two years earlier and the building line or major public facilities have been confirmed as being completed per the Master Plan, a building permit may be issued, per the provisions of related building ordinances, for the building line designated by the regulatory building authority”. The interpretation letter issued by the Ministry of the Interior dated February 20, 1984, Ref. No. (73)-Tai-Ne-Ying-213392 commented in summary that: even if two years have elapsed since the announcement of the Master Plan, if the “(Master) Plan” contains the provision as per the syllabus (i.e., in the Master Plan it is provided that: “Application for a building permit shall not be submitted until a detailed plan has been drawn up, and shall be handled per the urban land rezoning approach as much as possible, so as to obtain the land for public facilities”), the application for a building permit submitted by the people may be rejected, and so forth. In addition, the Urban Planning (Comprehensive Review) Map for Chu-Nan Tou-Fen (Tu Niu and Kang Chien areas) in the Pronouncement issued by the government of Miao-li Hsien, Taiwan Province, dated October 21, 1987, Ref. No. (76)-Fu-Jien-Du-93266 specified the “incidental conditions that: (1) a detailed plan should be separately drawn up, and in addition to the public facilities designated by the Master Plan and the allocation of necessary land for public facilities according to relevant regulations, a building permit should not be issued until a detailed plan has gone through legal procedures, and (2) development by rezoning the city land”. The foregoing regarding the issuance of a building permit, according to the above explanation, apparently exceeds the prescribed scope of Subparagraph 10 of Paragraph 1 of Article 15 of the Urban Planning Act and imposes a further restriction that does not exist under the proviso of Paragraph 2 of Article 17 of said Act.  This contradicts the property right of the people protected under the Constitution and thus should not be applicable. 
      
    • *Translated by Dr. C.Y. Huang of Tsar & Tsai Law Firm.
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