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  • Interpretation
  • No.444
  • Date
  • 1998/01/09
  • Issue
    • Does Article 25 of the Enforcement Guidelines for the Use Permission of Non-Urban Land of Taiwan Province stipulating that within ambit of the area for the protection of water quality and quantity any application for the set-up of pasturing facilities shall be denied and the use of such area as a pasturing ground forbidden contradict the Constitution?
  • Holding
    •        The Zoning Act is enacted to promote conservation and the use of land and natural resources, improve the living environment, and enhance the public interest. The second sentence of Article 2 provides: "What is not stipulated in this Act applies to other laws." Whatever law accords with the purpose of this Act will be among the laws to be applied. Article 6, Paragraph 1, of the Regulations Governing the Utilization Control of Non-Urban Land, promulgated by the Ministry of the Interior, based on the above provides: "Land designated for certain use should be used according to permitted use items, but other laws which prohibit or restrain certain use will be applied preemptively." Article 25 of the Enforcement Guidelines for the Use Permission of Non-Urban Land of Taiwan Province, amended and promulgated on June 7, 1995, provides: "No new pasture ground can be set aside and no permit for building pasturing facilities can be set up in a water quality and quantity protection area." Based on the intent of Paragraph 1, this exemplifies that land set aside for certain use should (or not) be used according to permitted use items or certain uses should (or not) be prohibited or be restrained in order to enforce the Water Supply Act and Water Pollution Control Act. This is necessary to fulfill the legislative purpose of the aforementioned Act, and does not add any limitation on the people’s property right that is not provided by statutes. Therefore, it does not violate the intent of protection of private property of Article 15 of the Constitution and the principle of legal reservation (Gesetzesvorbehaltprinzip) of Article 23 of the Constitution.
  • Reasoning
    •        Land is necessary for the people’s livelihood. The nation, based on the mutual reliance and mutual interest of geography, population, resources, economic activities, etc., and according with national economic development and environmental protection policy, shall enact land use and conservation plans to accord with social need. The Zoning Act is a law enacted to coordinate the various needs of land use and balance them with the interests of the people in a reasonable manner. The legislative purpose of Article 1 is: "to promote conservation and the use of land and natural resources, reasonable allocation of population and industrial activities, and to accelerate healthy economic development, improve the living environment, and enhance the public welfare."  To implement the public policy of non-urban land use control and ecological and environmental conservation, Paragraph 1 of Article 15 of the same Act provides that land use control on non-urban land, being zoned according to a non-urban zoning plan and designated as land for various uses, should be enforced, and the control rules should be enacted by the central authority concerned. In addition, the second sentence of Article 2 provides: "What is not stipulated in this Act applies to other laws." Whatever laws accord with the purpose of this Act, i.e., the Water Supply Act and the Water Pollution Control Act, will be among the laws applied.  Based on the above stipulation, the Ministry of the Interior enacted the Regulations Governing the Utilization Control of Non-Urban Land. According to Article 13 of the Enforcement Rules of the Zoning Act, it divides non-urban land into various use districts, designates 18 categories of land use in every use district according to Article 15 and controls land use based on the varieties and nature of land use. Paragraph 1 of Article 6 of the Regulations provides: "Land designated for certain use should be used according to permitted use items, but other laws which prohibit or restrain certain use will be applied preemptively." Article 25 of the Enforcement Guidelines for the Use Permission of Non-Urban Land of Taiwan Province, amended and promulgated on June 7, 1995, provides: "No new pasture ground can be set aside and no permit for building pasturing facilities can be set up in a water quality and quantity protection area." Based on the intent of Paragraph 1, it exemplifies that land of certain use should (or not) be used according to permitted use items or certain uses should (or not) be prohibited or be restrained in order to enforce Article 11 of Water Supply Act and Subparagraph 4 of Article 28 of the Water Pollution Control Act. (This exemplification was deleted by (86) N. T. T. Directive No. 8684833 of the Ministry of the Interior on August 6, 1997). This is necessary to fulfill the legislative purpose of the aforementioned Act, and does not add any limitation on the people’s property right that is not provided by statutes. Therefore, it does not violate the intent of protection of private property of Article 15 of the Constitution and the principle of legal reservation (Gesetzesvorbehaltprinzip) of Article 23 of the Constitution. Whether a piece of land in an actual case is within a water quality and quantity protection area is a matter of fact to be decided by judges.  
      
    • *Translated by Jer-Shenq Shieh.
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