Physical facilities existing in a city are the basis for the life of members of society. In order to regulate the interests surrounding these and promote the development of the community, a legal system regulating the space has been developed. On the ...
Physical facilities existing in a city are the basis for the life of members of society. In order to regulate the interests surrounding these and promote the development of the community, a legal system regulating the space has been developed. On the other hand, human development activities have expanded their domain to the lower part of the earth's surface. However, the regulation on the underground space developed with such activities is not sufficiently developed or is being only implicitly implemented despite the increasing necessity.
This paper tried to identify the legal characteristics of various types of underground space existing in the city, and to examine the public law regulatory system surrounding it. For this purpose, the underground space subject to the public law analysis is defined as 'artificial・physical space below the surface of the earth that forms the basis for people's lives'. In addition, the representative types of facilities that constitute the underground space are selected and analyzed in terms of public law. They are the basement of buildings, railroad facilities, underground roads, and utility-pipe conduits.
Since the basement of a building is a component of the building, it is a principle that the basement of a building is governed by the regulatory system under the Building Act and the National Land Planning and Utilization Act(hereinafter ‘Land Planning Act’). The Building Act recognizes the basement as a space with inherent dangers and imposes regulations to prevent them. However, the Land Planning Act gives various kinds of preferential treatment to the basement while giving up a considerable part of the urban planning judgment on the basement, which is against the system of the Construction Act and is not desirable from a policy point of view.
Railroad facilities and underground roads are underground spaces developed on a large scale by the government. Although they are infrastructure facilities according to the Land Planning Act, they are installed, maintained, and managed under the individual laws that govern each facility, not the Land Planning Act. Private entities expand these underground spaces or connect them with other underground spaces based on road occupancy permits, etc. However, it is the facilities irrelevant to transportation, such as underground stores, that actually constitute the underground space formed around railroad facilities and underground roads. The individual laws regulating railroad facilities and underground roads also regulate facilities such as underground stores, but the main purpose of those laws is to facilitate traffic. As a result, these laws do not sufficiently regulate the ancillary spaces in transportation facilities such as underground stores. In addition, despite the nature of underground stores as buildings, the regulatory system under the Building Act and the Land Planning Act does not apply to underground stores.
As many linear infrastructures are built on the ground in a disorderly fashion, they are causing safety problems and changes in the land use status. To solve such problems, ways to underground linear infrastructures and install utility-pipe conduits are discussed. Utility-pipe conduits accommodate various infrastructures inside the main body, and the main body also falls under the Land Planning Act. Since an accommodated facility does not lose its character as an infrastructure, the regulations of the Construction Act on both accommodated facilities and the main body are all applied. On the other hand, accommodated facilities and utility-pipe conduits are installed and managed by different entities, and as a result, disputes arise over who is responsible for them and who bears costs.
Our legislative system did not attempt to systematically regulate the underground space, and whenever a new type of underground space was created, it chose a workaround to regulate it with new individual legislations. Such attitude is undesirable, and the underground space should be incorporated in urban planning to promote the rational use of land. It is now necessary to fill in the gaps of the public law regulatory system for underground space and use it as a cornerstone to improve the lives of people.