2016.12.20

2016 (Gyo-Hi) 394

Minshu Vo. 70, No. 8

Judgment on a case in which the relevant prefectural governor’s decision that the reclamation of a publicly-owned water surface meets the requirement set forth in Article 4, paragraph (1), item (i) of the Act on Reclamation of Publicly-owned Water Surface was determined as neither illegal nor unjust

Case seeking a declaration of an illegal omission under Article 251-7, paragraph (1) of the Local Autonomy Act

Judgment of the Second Petty bench, dismissed

Fukuoka High Court, Naha Branch, Judgment of September 16, 2016

1. The relevant prefectural governor’s decision that the reclamation of a publicly-owned water surface meets the requirements set forth in Article 4, paragraph (1), item (i) of the Act on Reclamation of Publicly-owned Water Surface cannot be considered illegal or unjust under the circumstances where such reclamation was to be conducted in order to construct facilities substituting for an air station used by the United States of America Armed Forces and where the prefectural governor decided that the reclamation met the requirements set forth in the said item in light of the fact, among others, that the area of the substitute facilities and that of the proposed reclamation would be substantially smaller than the area of the air station facilities, that locating the runway so that departing aircraft would fly over the water would prevent aircraft from flying over residential areas, and that the substitute facilities would be constructed by making use of part of the facilities and area which had already been provided to the same armed forces, and where no circumstances are found which would suggest that such decision lacked factual grounds or that the content of such decision is obviously inappropriate in light of social norms.

2. The relevant prefectural governor’s decision that the reclamation of a publicly-owned water surface meets the requirements set forth in Article 4, paragraph (1), item (ii) of the Act on Reclamation of Publicly-owned Water Surface cannot be considered illegal or unjust under the circumstances stated in the judgment, such as that the examination criteria set by the prefecture as to whether or not the requirements set forth in the said item are met, and that there are no specifically unreasonable points in the process through which the decision was made or in the content of the decision which was made based on responses from the relevant municipal heads and other persons concerned.

3. The Prime Minister or any of his Cabinet colleagues may give instructions for correction under Article 245-7, paragraph (1) of the Local Autonomy Act if he considers that the administration of any statutory entrusted function by the relevant prefectural government subject to any law over which he has jurisdiction or to any government ordinance under such law violates any legal provision.

4. With respect to the fact that the prefectural governor failed to revoke the revocation of the approval of the reclamation of the publicly-owned water surface despite the Minister of the Ministry of Land, Infrastructure, Transport and Tourism’s giving instructions for correction, under Article 245-7, paragraph (1) of the Local Autonomy Act, requiring the prefectural government to revoke such revocation of the approval on the grounds that such revocation of the approval was illegal, it is considered that the reasonable period as referred to in Article 251-7, paragraph (1) of the same act elapsed upon the lapse of the day one week after the day on which such instructions for correction were issued, under the circumstances stated in the judgment such as that the action with respect to which the instructions for correction were issued required, by its nature, the prefectural governor’s manifestation of his intention to revoke the revocation of the approval, and that whether or not the revocation of the approval was appropriate was at issue in a lawsuit filed by the Minister of the Ministry of Land, Infrastructure, Transport and Tourism under Article 245-8, paragraph (3) of the same act approximately four months before the date on which the instructions for correction were issued.

(For 1 through 4) Article 4, paragraph (1) and Article 42, paragraphs (1) and (3) of the Act on Reclamation of Publicly-owned Water Surface

(For 3 and 4) Article 2, paragraph (9), item (i) and Article 245-7, paragraph (1) of the Local Autonomy Act, Article 51, item (i) of the Act on Reclamation of Publicly-owned Water Surface, Article 4, item (lvii) of the Act for Establishment of the Ministry of Land, Infrastructure, Transport and Tourism (as before the revision by Act No. 66 of 2015), and Article 4, paragraph (1), item (lvii) of the Act for Establishment of the Ministry of Land, Infrastructure, Transport and Tourism

(For 4) Article 245-8, paragraph (3) and Article 251-7, paragraph (1) of the Local Autonomy Act



Act on Reclamation of Publicly-owned Water Surface

Article 4 (1) Unless the relevant prefectural governor considers that an application for license for reclamation meets the requirements listed in the following items, he may not give license for reclamation:

(i) The proposed reclamation is appropriate and reasonable for national land use purposes;

(ii) Such reclamation has given full consideration to environmental protection and disaster prevention;

(iii) The use of the reclaimed land is not inconsistent with any plan made under any law of the nation or the relevant local public body (including the port authority) concerning land use or environmental protection;

(iv) The arrangement and size of the public facilities are appropriate in light of the use of the reclaimed land;

(v) In the case of a reclamation falling under Article 2, paragraph (3), item (iv), the applicant is a public entity or any other entity designated by the relevant government ordinance and the method of disposition and the expected price of the reclaimed land are appropriate;

(vi) The applicant has sufficient financial resources and credit to conduct the proposed reclamation.

Article 42 (1) If the national government intends to conduct a reclamation project, it shall obtain the approval of the relevant government agency and the relevant prefectural governor.

(3) The provisions of Article 2, paragraphs (2) and (3), Articles 3 through 11, Articles 13-2 (only to the extent related to a change of the use of, or to changes in the outline of the design for, the reclaimed land) through 15, Article 31, Article 37 and Article 44 shall apply mutatis mutandis to any reclamation project as referred to in paragraph (1); provided, however, that in cases where the relevant prefectural governor’s permission shall otherwise be obtained pursuant to Article 13-2 as applied mutatis mutandis, such governor’s approval shall be obtained instead, and that in cases where the relevant prefectural governor’s permission shall otherwise be obtained pursuant to Article 14 as applied mutatis mutandis, such governor shall be given notification instead.

Article 51 Of the functions to be administered by the relevant local public body under the provisions of this act, those listed below shall be Item (i) Statutory Entrusted Functions as listed in Article 2, paragraph (9), item (i) of the Local Autonomy Act:

(i) The functions which shall be administered by the relevant prefectural government or by the relevant designated city government as set forth in Article 252-19, paragraph (1) of the Local Autonomy Act pursuant to the provisions of Article 2, paragraphs (1) and (2) (including cases where the said paragraph shall apply mutatis mutandis in Article 42, paragraph (3)), Article 3, paragraphs (1) through (3) (including cases where the said paragraphs shall apply mutatis mutandis in Article 13-2, paragraph (2) and Article 42, paragraph (3)), Article 13, Article 13-2, paragraph (1) (including cases where the said paragraph shall apply mutatis mutandis in Article 42, paragraph (3)), Article 14, paragraph (1) (including cases where the said paragraph shall apply mutatis mutandis in Article 42, paragraph (3)), Article 16, paragraph (1), Article 20, Article 22, paragraph (1), Article 22, paragraph (2) (only to the extent related to the announcement of authorization for completion), Article 25, Article 32, paragraph (1) (including cases where the said paragraph shall apply mutatis mutandis in Article 36), Article 32, paragraph (2), Article 34, Article 35 (including cases where the said article shall apply mutatis mutandis in Article 36), Article 42, paragraph (1) and Article 43.

Local Autonomy Act

Article 2

(9) For the purpose of this act, a “statutory entrusted function” means any of the following functions:

(i) Of the functions required to be administered by the relevant prefectural, municipal or special ward government under any law or any government ordinance thereunder, those which pertain to a role to be properly fulfilled by the national government and which are specifically designated by any law or any government ordinance thereunder as functions the appropriate administration of which must particularly be ensured by the national government (hereinafter referred to as “Item (i) Statutory Entrusted Functions”)

Article 245-7 (1) If a minister considers that the administration of any statutory entrusted function by the relevant prefectural government subject to any law over which he has jurisdiction or to any government ordinance under such law violates any legal provision or that such administration is grossly inappropriate and is obviously detrimental to the public interest, such minister may give necessary instructions to such prefectural government regarding action to be taken in order to correct or remedy the violation in the administration of such statutory entrusted function.

Article 245-8

(3) If the prefectural governor fails to take the relevant action by the deadline as referred to in the preceding paragraph, the minister may seek, by filing a complaint with the relevant high court, a judgment ordering the prefectural governor to take such action.

Article 251-7 (1) If any of the events listed in the following items occurs, the minister who made a request for correction pursuant to the provisions of Article 245-5, paragraph (1) or (4) or gave instructions pursuant to the provisions of Article 245-7, paragraph (1) or (4) may seek a declaration of an illegal omission (“omission” shall mean a failure to take action according to the request for correction or to take the instructed action by the administrative agency of the ordinary local public body which received the request for correction or the instructions despite its obligation to do so within a reasonable period; hereinafter the same applies in this paragraph, the following article and Article 252-17-4, paragraph (3)) by the relevant ordinary local public body which received the request for correction or the instructions, by filing a complaint with the relevant high court against such ordinary local public body’s administrative agency which is responsible for such omission (or, if the authority of such administrative agency is taken over by another administrative agency after the request for correction was made or after the instructions were given, the successor administrative authority).

(i) If the head or any other executive agency of the ordinary local public body fails to make a request for examination pursuant to the provisions of Article 250-13, paragraph (1) (including cases where such request for examination is withdrawn in accordance with the provisions of Article 250-17, paragraph (1) after such request for examination has been made) with respect to such request for correction or such instructions and fails to take action according to the request for correction or to take the instructed action;

(ii) If the head or any other executive agency of the ordinary local public body makes a request for examination pursuant to the provisions of Article 250-13, paragraph (1) with respect to such request for correction or such instructions and if any of the following events occurs:

(a) If the Council notifies the results of the examination and the details of its recommendations pursuant to the provisions of Article 250-14, paragraph (1) or (2) and if the head or any other executive agency of such ordinary local public body fails to file a complaint seeking a revocation of the request for correction or the instructions pursuant to the provisions of Article 251-5, paragraph (1) (including cases where such complaint is withdrawn after it has been filed; the same applies in (b) below) and fails to take action according to the request for correction or to take the instructed action;

(b) If the Council has not conducted examination or made recommendations pursuant to the provisions of Article 250-14, paragraph (1) or (2) after the elapse of ninety days following the date of request for such examination and if the head or any other executive agency of such ordinary local public body fails to file a complaint seeking a revocation of the request for correction or the instructions pursuant to the provisions of Article 251-5, paragraph (1) and fails to take action according to the request for correction or to take the instructed action.

Act for Establishment of the Ministry of Land, Infrastructure, Transport and Tourism (in the version before revision by Act No. 66 of 2015)

Article 4 The Ministry of Land, Infrastructure, Transport and Tourism shall administer the functions listed below in order to carry out its duties set forth in the preceding article:

(lvii) Matters concerning landfill or reclamation of publicly-owned water surfaces

Act for Establishment of the Ministry of Land, Infrastructure, Transport and Tourism

Article 4 (1) The Ministry of Land, Infrastructure, Transport and Tourism shall administer the functions listed below in order to carry out its duties set forth in paragraph (1) of the preceding article:

(lvii) Matters concerning landfill or reclamation of publicly-owned water surfaces

This final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant.

I. Outline of Facts Related to the Case

1. In this case, while the Okinawa Defense Bureau had obtained the approval of the former governor of Okinawa Prefecture, NAKAIMA Hirokazu (hereinafter referred to as the “Former Governor”), on the proposed reclamation of a publicly-owned water surface (hereinafter referred to as the “Reclamation Approval”) for a publicly-owned water surface reclamation project (hereinafter referred to as the “Reclamation Project”) for the construction on the coast of Henoko in Nago City, Okinawa, of facilities substituting for the Futemma Air Station which was located in Ginowan City, Okinawa and had been agreed to be returned to Japan between Japan and the United States of America (hereinafter referred to as the “U.S.”), the appellant revoked the Reclamation Approval on the grounds that it was illegal (hereinafter referred to as the “Reclamation Approval Revocation”). In response, the appellee gave instructions for correction seeking a revocation of the Reclamation Approval Revocation under Article 245-7, paragraph (1) of the Local Autonomy Act (hereinafter referred to as the “Instructions”). However, the appellant neither revoked the Reclamation Approval Revocation nor filed a petition seeking a revocation of the instructions for correction as set forth in Article 251-5, paragraph (1) of the said act within the statutory period, and the appellant now seeks a declaration, under Article 251-7, paragraph (1) of the said act, that the appellant’s failure to revoke the Reclamation Approval Revocation is illegal.

2. An outline of the facts related to the case which duly became final and binding in the judgment of prior instance is as described below:

(1) The Futemma Air Station is located at the center of Ginowan City. It has been used by the United States of America Armed Forces (hereinafter referred to as the “US Forces”) since 1945, and is currently used as a base for an air force of the US Marine Corps. The areas surrounding the air station are densely populated by schools, houses, medical institutions, etc.

(2) Camp Schwab is located around the Henoko section of Nago City. It has been used by the US Marine Corps since 1956, and is currently used as a camping area and a training area by a land force of the US Marine Corps. Entrance in the camp by the general public is restricted.

(3) (a) During the talks between the Prime Minister and the U.S. ambassador to Japan that took place in April 1996, it was agreed that the Futemma Air Station would be returned to Japan after certain measures were taken. Furthermore, in December 1996, the relevant Cabinet members and others involved who attended the Japan-United States Security Consultative Committee (a consultative body established under Article 4 of the Treaty of Mutual Cooperation and Security Between Japan and the United States of America) meeting approved that the air station would be returned after facilities substituting for the air station were constructed and became operable. Subsequently, the national government decided to implement the Reclamation Project in order to construct facilities substituting for the Futemma Air Station and an air station related to such facilities (hereinafter referred to as the “New Facilities”) on the coast of Henoko in Nago City, and the Okinawa Defense Bureau proceeded with the procedure therefor.

(b) On March 22, 2013, the Okinawa Defense Bureau filed with the Former Governor an application for approval of reclamation of publicly-owned water surface, seeking his approval of the proposed reclamation of the publicly-owned water surface as shown in Exhibit 4 to the judgment of prior instance (i.e., the Reclamation Project) in order to construct the New Facilities by creating a reclaimed land which would connect the site of Camp Schwab and Henoko-zaki to the waters of Oura Bay and Henoko Bay (hereinafter this application is referred to as the “Reclamation Application”).

(c) Before filing the Reclamation Application, the Okinawa Defense Bureau chief prepared an environmental impact statement in accordance with the Environmental Impact Assessment Act and the Okinawa Environmental Impact Assessment Ordinance (Okinawa Prefectural Ordinance No. 77 of 2000), and sent the statement to the Former Governor in December 2011 and January 2012. In addition, the chief sent a revised environmental impact statement to the Former Governor in December 2012.

(4) (a) In response to the Reclamation Application, the Former Governor sought opinions from, among others, the mayor of Nago City, who was the head of the relevant municipality, and the Director General of the Okinawa Prefecture Department of Environmental and Community Affairs, which was the relevant agency, and received their responses. In addition, during the period from October 2013 to December 2013, the Okinawa Prefectural Government asked four times questions of the Okinawa Defense Bureau about whether or not the Reclamation Project met the requirement listed in Article 4, paragraph (1), item (i) of the Act on Reclamation of Publicly-owned Water Surface (hereinafter referred to as the “Item (i) Requirement”) and that listed in item (ii) of the said paragraph (hereinafter referred to as the “Item (ii) Requirement”), and received their responses.

(b) The Former Governor conducted examinations for the Reclamation Application in accordance with the examination criteria for publicly-owned water surface reclamation licensing set by the Okinawa Prefectural Government under Article 5, paragraph (1) of the Administrative Procedure Act, decided that the Reclamation Project met the requirements listed in the items of paragraph (1) of Article 4 of the Act on Reclamation of Publicly-owned Water Surface, including the Item (i) Requirement and Item (ii) Requirement, and gave the Reclamation Approval on December 27, 2013.

Of the aforementioned examinations, the examination as to whether or not the Reclamation Project met the Item (i) Requirement led to the decision that the Reclamation Project met the Item (i) Requirement on the following grounds, under the existing circumstances where the areas surrounding the Futemma Air Station were densely populated by schools, houses, medical institutions, etc. and had experienced noise damage and other problems which had seriously affected the lives of residents, and where there had been aircraft crashes around the air station, which had made it an urgent task to eliminate the danger posed by the air station: (i) the size of the proposed reclamation was appropriate and reasonable for such reasons as that while the area of the air station facilities was approximately 4.8 square kilometers, the proposed area of the New Facilities was approximately 2 square kilometers, including approximately 1.6 square kilometers of the proposed reclaimed land; and (ii) the location of the proposed reclamation was appropriate and reasonable for such reasons as that aircraft’s flying over residential areas would be prevented by reclaiming the coastal area and locating the runway so that departing aircraft would fly over the water, and that the New Facilities would be constructed by making use of part of Camp Schwab which had already been provided to the US Forces.

Of the aforementioned examinations, the examination as to whether or not the Reclamation Project met the Item (ii) Requirement examined the environmental impact statement mentioned in (3)(c) above and led to the decision that the Reclamation Project met the Item (ii) Requirement on the grounds that the construction methods, environmental protection measures and countermeasures that were considered available at that time were taken or used in, and full consideration was also given to disaster prevention in: (i) the construction of the proposed coast protection structures and other structures; (ii) the proposed measures to deal with the properties of the soil and other materials to be used for reclamation; (iii) the collection, transport and laying of the soil and other materials for the proposed reclamation; and (iv) the conversion of water to land by the proposed reclamation.

(5) On October 13, 2015, the appellant revoked the Reclamation Approval on the grounds that the Reclamation Approval had a defect in that the Reclamation Project had been considered to have met the Item (i) Requirement and the Item (ii) Requirement even though it actually had not met these requirements.

(6) Approval by the relevant prefectural governor of a reclamation project under the Act on Reclamation of Publicly-owned Water Surface is a statutory entrusted function (Article 2, paragraph (9), item (i) of the Local Autonomy Act and Article 51, item (i) of the Act on Reclamation of Publicly-owned Water Surface). Alleging that the Reclamation Approval Revocation was illegal, on November 17, 2015 the appellee filed a complaint under Article 245-8, paragraph (3) of the Local Autonomy Act seeking a judgment ordering the Reclamation Approval Revocation to be revoked (hereinafter referred to as the “Prior Lawsuit”).

The Prior Lawsuit terminated as a result of withdrawal of the complaint on the date for settlement on March 4, 2016.

(7) Alleging that the Reclamation Approval Revocation was illegal, on March 16, 2016 the appellee gave the Okinawa Prefectural Government the Instructions, under Article 245-7, paragraph (1) of the Local Autonomy Act, requiring a revocation of the Reclamation Approval Revocation. The document containing the Instructions contained a statement to the effect that the Reclamation Approval Revocation should be revoked within a period of one week commencing on the day immediately following the date on which the document was received.

(8) Dissatisfied with the Instructions, on March 23, 2016 the appellant filed a request for examination with the Central and Local Government Dispute Management Council under Article 250-13, paragraph (1) of the Local Autonomy Act.

(9) On June 21, 2016 the Central and Local Government Dispute Management Council notified the appellant and the appellee of its decision that the examination was concluded by the Council’s view that the best way to resolve the issue was for the national government and the Okinawa Prefectural Government to make efforts to obtain results that would be mutually agreeable to them by having sincere discussions towards the achievement of their common goal of having the Futemma Air Station returned to Japan (hereinafter referred to as the “Council Decision”).

(10) The appellant neither filed a complaint, as set forth in Article 251-5 of the Local Autonomy Act, seeking a revocation of the Instructions within thirty days following the date of receipt of the Council Decision, nor revoked the Reclamation Approval Revocation. The appellee then filed this case on July 22, 2016 under Article 251-7, paragraph (1) of the said act.

II. Regarding III.1, VI and VII of the Reasons for the Petition for Acceptance of Final Appeal Filed by the Counsels for the Appeal, TAKESHITA Isao et al.

1. In this case, while the Court is asked to declare that the appellant’s failure to revoke the Reclamation Approval Revocation as the action required by the Instruction is illegal, the appellant alleges that he revoked the Reclamation Approval Revocation ex officio on the grounds that the Reclamation Approval given by the Former Governor had a defect.

Generally speaking, if an administrative agency’s disposition whose revocation will be detrimental to the addressee’s rights or legal interests is revoked ex officio by the administrative agency on the grounds that the disposition had a defect at the time it was made, and if a dispute arises as to whether or not there was a defect serious enough to have the disposition revoked ex officio, then the Court should examine and decide on this point from the viewpoint of whether or not the disposition is considered illegal or unjust (hereinafter collectively referred to as “Illegal”) in light of the circumstances that existed at the time of such disposition. If the disposition is not considered Illegal, the administrative agency should not be allowed to revoke the disposition ex officio on the grounds that the disposition was Illegal, and the revocation should be considered illegal.

Therefore, when judging whether or not the Reclamation Approval Revocation was appropriate, the Court should examine and decide on whether or not the Reclamation Approval given by the Former Governor is considered Illegal in light of the circumstances that existed at the time when the Reclamation Approval was given, instead of whether or not the appellant’s decision to revoke the Reclamation Approval is considered to be outside of his discretion or to constitute an abuse of his discretion. If the Reclamation Approval is not considered Illegal, the appellant’s Reclamation Approval Revocation is illegal.

2. (1) Article 42, paragraph (1) of the Act on Reclamation of Publicly-owned Water Surface requires the government agency intending to conduct a national reclamation project to obtain the approval of the relevant prefectural governor. The requirements for giving such approval are listed in Article 4, paragraph (1) of the said act as applied mutatis mutandis in Article 42, paragraph (3) of the said act. In light of the fact that Article 4, paragraph (1) of the said act provides to the effect that no approval or license (hereinafter collectively referred to as “Approval”) for reclamation may be given unless the requirements listed in the items of the said paragraph are met, the items of the said paragraph are understood as specifying the minimum requirements for giving the aforementioned Approval, based on the understanding that whether or not such Approval is given is a decision within the relevant prefectural governor’s discretion. The items of the said paragraph should be construed by taking this into account.

(2) The requirement that the proposed reclamation project be “appropriate and reasonable for national land use purposes” as set forth in Article 4, paragraph (1), item (i) of the Act on Reclamation of Publicly-owned Water Surface (i.e., the Item (i) Requirement) is construed as making it a requirement for the proposed reclamation of the publicly-owned water surface and for the proposed use of the reclaimed land, which are subject to Approval, to be appropriate and reasonable from the viewpoint of national land use in order to obtain Approval. It is thus understood: that, to examine if this requirement is met, it is essential to take various circumstances comprehensively into account, such as the benefit to be obtained and that to be lost in terms of national land use as a result of implementing the proposed reclamation, in addition to the necessity and public nature of the purpose of the proposed reclamation and the use of the reclaimed land as well as the degree of such necessity and public nature; and that, in light of the discussion in (1) above, it is construed that the Item (i) Requirement does not go so far as to require that the proposed reclamation and the use of the reclaimed land be the most appropriate and reasonable use of the relevant publicly-owned water surface. It should then be understood that, unless a decision made after making comprehensive consideration as described above lacks factual grounds or is obviously inappropriate in light of social norms, it is difficult to say that there was a defect in the decision that the proposed reclamation of the publicly-owned water surface met the Item (i) Requirement.

Let us apply the above discussion to this case. The Reclamation Project is implemented in order to construct facilities (i.e., the New Facilities) substituting for the Futemma Air Station. The Former Governor decided that the Reclamation Project met the Item (i) Requirement on such grounds as that the size and location of the proposed reclamation were appropriate and reasonable in light of, among others, the following facts, after taking into account the usage conditions of the air station and the course of negotiations between the U.S. and Japan about return to Japan of the air station and construction of substitute facilities, and, as described in I.2 (4)(b) above, under the existing circumstances where noise damage and other problems had seriously affected the lives of residents in the areas surrounding the air station and where eliminating the danger posed by the air station was an urgent task: (i) that the area of the New Facilities and that of the proposed reclamation would be substantially smaller than the area of the air station facilities; and (ii) that aircraft’s flying over residential areas would be prevented by reclaiming the coastal area and locating the runway so that departing aircraft would fly over the water, and that the New Facilities would be constructed by making use of part of Camp Schwab which had already been provided to the US Forces. No circumstances are found that would suggest that this decision by the Former Governor lacked factual grounds or the content of such decision is obviously inappropriate in light of social norms.

Therefore, the Court cannot conclude that the Former Governor’s decision that the Reclamation Project met the Item (i) Requirement is Illegal.

(3) Similarly, the requirement that the proposed reclamation project have “given full consideration to environmental protection and disaster prevention” as set forth in Article 4, paragraph (1), item (ii) of the Act on Reclamation of Publicly-owned Water Surface (i.e., the Item (ii) Requirement) is construed as making it a requirement for the applicant to have accurately identified potential issues in terms of environmental protection and disaster prevention that may arise from the proposed reclamation itself of the publicly-owned water surface and to have appropriately taken measures against such issues, in order to obtain Approval. It is thus understood that to examine if this requirement is met, the prefectural governor is required to conduct a review based on expert and technical knowledge as to, among others: whether or not the applicant appropriately collected information on the potential impact of the implementation of the proposed reclamation on the environment and made appropriate predictions based on such information; and whether or not the applicant appropriately considered if there are measures that could be taken to avoid or reduce the potential impact of the implementation of the project on the environment and, if so, the details of such measures, and appropriately evaluated the effect of such measures if taken. It is then understood that the Court’s examination as to whether or not the prefectural governor’s decision that the proposed reclamation of the publicly-owned water surface met the Item (ii) Requirement is Illegal should be conducted from the viewpoint of whether or not the aforementioned decision made by the prefectural governor based on expert and technical knowledge is unreasonable in any way.

Let us apply the above discussion to this case. As described in I.2 (4)(b) above, whether or not the Reclamation Project met the Item (ii) Requirement was considered in accordance with the examination criteria set by the Okinawa Prefectural Government, and there seems to be nothing particularly unreasonable about these examination criteria. In addition, as described in I.2 (4)(a) and (b) above, the Former Governor examined whether or not the Reclamation Project met the Item (ii) Requirement based on expert and technical knowledge after taking into account the responses from the relevant municipal head and the relevant agency and those from the Okinawa Defense Bureau, and decided that the project met the Item (ii) Requirement on the grounds that the construction methods, environmental protection measures and countermeasures that were considered available at that time were taken or used in, and full consideration was also given to disaster prevention in: (i) the construction of the proposed coast protection structures and other structures; (ii) the proposed measures to deal with the properties of the soil and other materials to be used for reclamation; (iii) the collection, transport and laying of the soil and other materials for the proposed reclamation; and (iv) the conversion of water to land by the proposed reclamation. There seems to be nothing particularly unreasonable about the process through which this decision was made or the details of this decision.

Therefore, the Court cannot conclude that the Former Governor’s decision that the Reclamation Project met the Item (ii) Requirement is Illegal.

3. As described above, the Court cannot conclude that the Former Governor’s decision that the Reclamation Project met the Item (i) Requirement and Item (ii) Requirement is Illegal, and there are otherwise no circumstances that would suggest that the Reclamation Approval is Illegal. Then the Reclamation Approval Revocation must be considered illegal, since it revoked the Reclamation Approval as illegal despite it being not Illegal and thereby constitutes an error in the application of Article 42, paragraph (1) of the Act on Reclamation of Publicly-owned Water Surface and Article 4, paragraph (1) of the said act as applied mutatis mutandis in Article 42, paragraph (3) of the said act. This is a case as referred to in Article 245-7, paragraph (1) of the Local Autonomy Act, where the administration of a statutory entrusted function by the relevant prefectural government violates legal provisions.

III. Regarding VIII of the Reasons for the Petition for Acceptance of Final Appeal Filed by the Counsels for the Appeal, TAKESHITA Isao et al.

1. Article 245-7, paragraph (1) of the Local Autonomy Act provides to the effect that if a minister (i.e., either the Prime Minister in his capacity as a minister who shall take charge of and manage the functions listed in Article 4, paragraph (3) of the Act for Establishment of the Cabinet Office or a minister as referred to in Article 5, paragraph (1) of the National Government Organization Act) considers that the administration of any statutory entrusted function by the relevant prefectural government subject to any law over which he has jurisdiction or to any cabinet order under such law violates any legal provision, such minister may give instructions for correction. It is understood that the intention of this provision is to ensure the proper administration of such statutory entrusted function. In addition to this, considering that there are no statutory provisions providing for cases where a minister is restricted from giving instructions for correction despite the administration of such statutory entrusted function violating some legal provision, a minister is automatically allowed to give instructions for correction under Article 245-7, paragraph (1) of the Local Autonomy Act if he considers that the administration of any statutory entrusted function by the relevant prefectural government subject to any law over which he has jurisdiction or to any cabinet order under such law violates any legal provision.

2. Let us apply the above discussion to this case. The appellee is a minister who has jurisdiction over the Act on Reclamation of Publicly-owned Water Surface (Article 4, item (lvii) of the Act for Establishment of the Ministry of Land, Infrastructure, Transport and Tourism or, after the revision of the said act by Act No. 66 of 2015, Article 4, paragraph (1), item (lvii) of the said act), and approval by the relevant prefectural governor of the reclamation project under the Act on Reclamation of Publicly-owned Water Surface is a statutory entrusted function. Since the Reclamation Approval Revocation violates legal provisions as described in II.3 above, the appellee may give necessary instructions to the Okinawa Prefectural Government regarding action to be taken to correct such violations.

Therefore, the Instructions are legal, and the appellant has an obligation to revoke the Reclamation Approval Revocation as the action required by the Instructions.

IV. Regarding IX of the Reasons for the Petition for Acceptance of Final Appeal Filed by the Counsels for the Appeal, TAKESHITA Isao et al.

1. Article 251-7, paragraph (1) of the Local Autonomy Act provides to the effect that an omission for which a declaration of illegality may be sought as provided for in the said paragraph means a failure by the relevant administrative agency of the ordinary local public body to take action according to instructions for correction received by such administrative agency despite its obligation to do so within a reasonable period. The administration of the statutory entrusted function with respect to which the Instructions were given was the appellant’s ex-officio revocation of the Reclamation Approval, and the action required by the Instructions was the appellant’s expression of his intention to revoke the Reclamation Approval Revocation. In addition to this, considering the course of events in this case, such as the fact that the appropriateness of the Reclamation Approval Revocation had been questioned in the Prior Lawsuit as well, which was filed by the appellee in November 2015, a “reasonable period” as referred to in the said paragraph is considered to have elapsed upon the lapse of March 23, 2016, the one week anniversary of the date on which the Instructions were given.

In addition, since it is difficult to find grounds for tolerating the appellant’s failure to take the action required by the Instructions despite the lapse of the aforementioned period, the Court must inevitably conclude that the appellant’s failure to revoke the Reclamation Approval Revocation is illegal.

Therefore, the appellant’s failure to revoke the Reclamation Approval Revocation as the action required by the Instructions constitute an illegal omission as referred to in Article 251-7, paragraph (1) of the Local Autonomy Act.

2. The appellant argues that he has not committed any illegal omission as referred to in Article 251-7, paragraph (1) of the Local Autonomy Act, pointing out such facts as that the appellant proposed a discussion to the appellee in response to the Council Decision. However, since the appellant has not revoked the Reclamation Approval Revocation as the action required by the Instructions, it is obvious that the appellant has committed an illegal omission as referred to in the said paragraph, and the fact that the appellant proposed a discussion to the appellee in response to the Council Decision does not affect the conclusion described above. The appellant’s argument is unacceptable.

V. Conclusion

For the above reasons, the decision by the court of prior instance, which accepted the appellee’s claims on the grounds that the appellant’s failure to revoke the Reclamation Approval Revocation as the action required by the Instructions was illegal, is acceptable in conclusion. None of the appellant’s reasons for the petition is acceptable.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice ONIMARU Kaoru

Justice ONUKI Yoshinobu

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki