Denied Access by Public Facility Managers in Japan? How to Challenge Such Decisions in Development Projects

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Undertaking development projects in Japan often involves navigating a multi-layered approval process. Beyond securing the primary development permit (開発許可 – kaihatsu kyoka) from the prefectural governor or equivalent authority under the City Planning Act (都市計画法 – Toshi Keikaku Hō), developers frequently encounter a crucial preliminary step: obtaining the consent of managers of public facilities (e.g., roads, water channels, parks) that may be affected by or are related to the proposed development. Article 32, Paragraph 1 of the City Planning Act mandates that an applicant for a development permit must, in advance, consult with and obtain the consent of the managers of relevant public facilities.

But what happens when a public facility manager—often a local mayor—issues a "disagreement" (不同意 – fudōi), effectively withholding this necessary consent? This can bring a development project to a halt, as the consent document is typically a required attachment to the development permit application (City Planning Act, Article 30, Paragraph 2). Challenging such a disagreement presents unique legal complexities in Japanese administrative law, primarily centered on whether the disagreement itself constitutes an actionable "administrative disposition."

The Crux of the Problem: Is a "Disagreement" an Actionable "Disposition"?

The ability to directly challenge an administrative act in court through a revocation suit (取消訴訟 – torikeshi soshō) hinges on whether that act qualifies as an "administrative disposition" (行政処分 – gyōsei shobun) under the Administrative Case Litigation Act (ACLA). This term generally refers to an act by a public authority that directly creates or determines the legal rights and obligations of citizens.

The Landmark Heisei 7 Supreme Court Judgment (March 23, 1995)

A pivotal Supreme Court judgment issued on March 23, 1995 (Minshu Vol. 49, No. 3, p. 1006), often referred to as the "Heisei 7 Judgment," addressed the nature of a public facility manager's disagreement under CPA Article 32. The Court held that such a disagreement is not an administrative disposition.

The Court's reasoning was that the disagreement is merely a "display of a public law judgment by the public facility manager that carrying out the said development activity is not appropriate from the viewpoint of proper management of the public facility." It further stated that while development cannot lawfully proceed without this consent, this is a consequence of the law requiring consent as a prerequisite, not a direct legal effect of the disagreement itself. Therefore, the Court concluded, the disagreement does not directly infringe upon the developer's rights or legal status in a way that makes it an administrative disposition subject to a revocation suit. The official commentary accompanying the judgment suggested that if consent is unreasonably withheld, the developer might only be left with a claim for state compensation for damages.

Criticisms and Practical Difficulties of the Heisei 7 Judgment

This ruling has faced considerable academic criticism. A primary concern is that it can leave developers with limited or impractical recourse if a public facility manager arbitrarily or unreasonably withholds consent. If the disagreement itself cannot be directly challenged as an illegal disposition, developers might be forced into convoluted or ineffective legal strategies. For instance, the Development Review Council (開発審査会 – Kaihatsu Shinsa Kai), an administrative appeal body for development-related decisions, has been known to dismiss appeals against such disagreements, citing a lack of jurisdiction because the disagreement is not considered a disposition appealable under Article 50 of the City Planning Act (which lists specific dispositions subject to its review).

Evolving Judicial Views and Statutory Amendments?

There is an ongoing debate about whether the strict stance of the Heisei 7 Judgment would be maintained today. Some legal scholars and practitioners point to subsequent Supreme Court cases that have shown a tendency to interpret "administrative disposition" more broadly in other contexts (e.g., a quarantine officer's notification regarding imported food, Supreme Court, Second Petty Bench, Judgment of April 26, 2004, Minshu Vol. 58, No. 4, p. 989).

Furthermore, a notable amendment to the City Planning Act in 2000 added Paragraph 3 to Article 32. This new paragraph clarifies that public facility managers "shall conduct the consultations referred to in the preceding two paragraphs from the perspective of ensuring the appropriate management of public facilities." Some lower courts, such as the Takamatsu High Court in a judgment on May 30, 2013 (Hanrei Jichitai No. 384, p. 64), have seized upon this amendment and the broader trend in dispositionality jurisprudence to find that a facility manager's disagreement can constitute an administrative disposition. This High Court ruling suggested that the Heisei 7 Judgment might no longer be directly applicable given these developments, allowing for a direct challenge to the disagreement.

If a court adheres to the Heisei 7 Supreme Court precedent and finds that a facility manager's disagreement is not an administrative disposition, developers must consider alternative legal strategies:

Path 1: Challenging the Subsequent Development Permit Denial

  1. The Process: The developer would apply for the main development permit from the prefectural governor without the public facility manager's consent document.
  2. Likely Outcome: The governor will almost certainly deny the development permit because the application is formally incomplete due to the missing consent (CPA Article 30, Paragraph 2).
  3. The Challenge: The developer then files a revocation suit against the governor's permit denial.
  4. The Argument: Within this lawsuit, the developer would argue that the permit denial, while ostensibly based on a missing document, is substantively illegal because the underlying disagreement from the facility manager was itself unlawful (e.g., arbitrary, based on irrelevant factors, an abuse of discretion). The developer would ask the court to "look through" the formal basis of the denial to the illegality of the prerequisite disagreement.
  5. Difficulties: The governor might successfully argue that their role in this specific instance was merely to check for the formal submission of required documents, and they lack the authority or duty to investigate the substantive reasonableness of the facility manager's disagreement. This path is fraught with uncertainty regarding the scope of the governor's review obligation concerning the manager's consent.

Path 2: Public Law Declaratory Action (Party Litigation)

Another strategy, if the disagreement is not a disposition, is to file a "public law party litigation" (公法上の当事者訴訟 – kōhōjō no tōjisha soshō) under ACLA Article 4.

  1. The Target: The developer would sue the public facility manager (e.g., the city or its mayor) directly.
  2. The Claim: Seek a declaratory judgment from the court affirming that the facility manager has a legal duty to provide consent because the proposed development meets all legitimate criteria from a facility management perspective (as per CPA Article 32, Paragraph 3).
  3. "Interest to Sue for Declaration" (Kakunin no Rieki – 確認の利益): To maintain such a suit, the developer must demonstrate a valid "interest to sue for declaration." This generally requires showing:
    • Appropriateness of the Subject Matter: The existence or non-existence of a duty to consent is a current legal relationship.
    • Appropriateness of the Method: If the disagreement is not a disposition, a revocation suit (an administrative specific remedy) is unavailable against it, making a declaratory action a necessary alternative.
    • Need for Immediate Determination: The lack of consent directly impedes the development permit application and the entire project. An immediate judicial determination of the manager's duty is crucial for resolving the dispute and allowing the project to proceed if consent is warranted.

This route directly confronts the legality of the facility manager's stance, rather than indirectly through the development permit process.

If, following the alternative view (e.g., the Takamatsu High Court judgment), a court is persuaded that the facility manager's disagreement is an administrative disposition:

  1. Direct Revocation Suit: The developer can file a revocation suit directly against the public facility manager's "disagreement" decision.
  2. Mandatory Action Suit: Concurrently, or as part of the same proceedings, the developer can file a mandatory action suit (義務付け訴訟 – gimuzuke soshō) to compel the facility manager to issue the consent.

This is the most direct approach to challenging the substance of the disagreement, provided its character as a disposition can be established.

Substantive Grounds for Illegality: When is a "Disagreement" Unlawful?

Regardless of the procedural route, the core substantive issue is whether the public facility manager's disagreement was legally justified.

  • Violation of City Planning Act Article 32, Paragraph 3: This provision, added in 2000, mandates that the manager's consultation and, by implication, their decision on consent, must be "from the perspective of ensuring the appropriate management of public facilities." This provides a key legal standard.
  • Irrelevant Considerations (Taji Kōryō – 他事考慮): A disagreement is illegal if it is based on factors extraneous to the proper management of the specific public facilities in question. For example, if a mayor denies consent for road use not because of anticipated road damage or traffic obstruction, but due to generalized local opposition to the development project itself (unrelated to specific impacts on the road), or due to pressure from local interest groups whose concerns are outside the scope of facility management, this could constitute an illegal consideration of irrelevant factors. In the hypothetical scenario from the PDF's source material, the city mayor's reasons for disagreement regarding a day service center's impact on a road and water channel included the lack of consent from a local community association (which de facto managed the water channel) and opposition from a local land improvement district. If these oppositions were not demonstrably tied to actual, substantial negative impacts on the management of the road or water channel, they could be deemed irrelevant.
  • Abuse of Discretion (裁量権の濫用 – sairyōken no ran'yō): Even if some facility management concerns are raised, the disagreement might be an abuse of discretion if it is disproportionate to the actual potential impact, or if reasonable mitigation measures proposed by the developer (which would ensure proper facility management) are ignored without valid reason. If a developer demonstrates, for example, that their project includes measures to ensure road capacity is not exceeded and that wastewater will be treated to standards that do not harm the water channel (as claimed by the developer in the PDF's scenario), a blanket disagreement might be considered an abuse of discretion.

The Interplay with the Development Permit Issuing Authority (Governor)

If a facility manager's disagreement is found to be illegal (either directly in a suit against the disagreement, or indirectly in a suit against the permit denial), this has significant implications for the main development permit. The governor, as the permit-issuing authority, would generally be expected to proceed with the permit application if the sole impediment (the lack of consent) is removed or deemed unlawfully withheld. The extent to which the governor can or must "look behind" a facility manager's disagreement is a complex issue, but a judicial finding of illegality regarding the disagreement would heavily influence the governor's subsequent actions.

Conclusion

Navigating the requirement for public facility manager consent under Japan's City Planning Act can be a critical hurdle for development projects. The legal status of a "disagreement" – whether it is an actionable administrative disposition – remains a somewhat unsettled area, with the Heisei 7 Supreme Court judgment denying its dispositionality but facing academic criticism and some lower court divergence. Developers faced with such a disagreement must carefully consider their litigation strategy, weighing options such as challenging a subsequent permit denial, seeking a declaratory judgment on the manager's duty to consent, or, if emerging case law permits, directly challenging the disagreement itself. Regardless of the chosen path, the substantive success will depend on demonstrating that the disagreement was not legitimately based on concerns for the "appropriate management of public facilities" but was rather arbitrary, based on irrelevant factors, or an abuse of discretion.