April 27, 2020

2. The Defendant’s provisional disposition of denying development activities on November 6, 2018 and the provisional disposition of denying construction activities on November 8, 2018, respectively, shall be revoked.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

This court's reasoning concerning each of the above parts is identical to the corresponding part of the reasoning of the judgment of the court of first instance (from No. 4 to No. 420, and from No. 8 to No. 11), with the exception of partial revision as follows. Thus, this court shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○○ The Mountainous Districts Management Act (amended by Act No. 17017, Feb. 18, 2020) shall be amended to “former Mountainous Districts Management Act (amended by Act No. 17017, Feb. 18, 2020).”

4. Determination

A. As to the validity of designation of an area where livestock raising is restricted as to the instant application site

1) Relevant regulations and legal principles

The main text of Article 8(1)1 of the Act on the Management and Use of Livestock Excreta (hereinafter “Act on Livestock Excreta”) provides that “The head of a Si/Gun/Gu may designate a specific area as prescribed by municipal ordinance of the relevant local government and restrict the raising of livestock in any of the following areas where it is deemed necessary to restrict the raising of livestock in order to preserve the living environment of local residents or to preserve the quality of water sources,” and Article 3 of the Ordinance of this case enacted upon delegation of the same Act provides that “the head of the relevant Gun shall designate a restricted area for raising livestock in accordance with Article 8(1) of the Act (Act on Livestock Excreta) as specified in attached Table 1, and shall publicly notify the designation of a restricted area for raising livestock in accordance with the proviso of Article 8(1) of the Act (Article 8(1)); and “no livestock raising and installation of livestock waste-generating facilities shall

Meanwhile, the Framework Act on the Regulation of Land Use defines “an area, district, zone, zone, complex, urban/Gun planning facility, regardless of its name, such as restrictions on development activities or obtaining authorization, permission, etc. related to land use” as “area, district, etc.” (Article 2 subparag. 1). Article 8 of the Livestock Excreta Act defines “area, district, etc. subject to restriction on livestock raising” as one of “area, district, etc.” (Article 5 subparag. 1 related thereto). In addition, where Article 8 of the Framework Act on the Regulation of Land Use is different from that of Article 8 of the Framework Act on the Regulation of Land Use in relation to the designation, operation, etc. of an area, district, district, etc., if the head of a local government designates an area, district, etc., he/she shall, in principle, prepare a topographic map and publicly notify it in the official bulletin of the local government (Article 8(2) main sentence), and in such cases, the designation of a district, district, etc. becomes effective by public announcement, such as topographic map (Article 8(3).

In full view of the above provisions, in principle, in order to restrict livestock raising pursuant to the Livestock Excreta Act, the head of a Si/Gun/Gu shall designate a certain area as an area where livestock raising is restricted as prescribed by municipal ordinances and prepare and publicly announce topographic maps as prescribed by the Framework Act on the Regulation of Land Use, and it is reasonable to view that the designation of a zone where livestock raising is restricted prior to the preparation and public announcement of such topographic maps does not take effect (see Supreme Court Decision 2013Du10489, May 11, 2017

Meanwhile, the proviso to Article 8(2) of the Framework Act on the Regulation of Land Use stipulates that a topographical map may not be prepared and publicly announced in cases prescribed by Presidential Decree, and Article 7(3)1(b) of the Enforcement Decree of the Framework Act on the Regulation of Land Use provides that “Where a range of area, district, etc. is directly designated according to statutes or municipal ordinances and rules without separate designation procedures,” as exceptional grounds that may not be prepared and publicly announced.

However, the Framework Act on the Regulation of Land Use aims to ensure transparency in the regulation of land use to reduce inconvenience to the land use of citizens and to contribute to the development of the national economy (Article 1), and to ensure the designation, operation, etc. of “area, district, etc.” to comply with Article 8 of the Act on the Regulation of Land Use even if the provisions of other Acts exist (Article 3), and “area, district, district, etc.” cannot be newly established except for those provided for in each subparagraph of Article 5 of the same Act (Article 5). In light of the purpose, legislative purport, and contents of the Framework Act on the Regulation of Land Use, etc., it is intended to ensure that a topographical map is prepared and publicly announced in principle when designating “area, district, etc.” under the Framework Act on the Regulation of Land Use, such as restrictions on land use by citizens, is to ensure convenience in land use by clearly announcing the contents thereof and to ensure predictability and transparency in administration (see, e.g., Supreme Court Decision 2012Du37124, Apr. 27, 2017).

2) Determination

Before the amendment of the instant municipal ordinance, attached Table 1 of the former Ordinance on the Management and Use of Livestock Excreta in Hongcheon-gun District was set as the restricted distance for raising pigs within 300 meters on the basis of the nearest cadastral and forest straight line on the boundary of the site of livestock excreta discharge facilities from the boundary of housing or medical facilities, education and research facilities, facilities for older persons and children, training facilities, lodging facilities, tourist resting facilities, military camp facilities (living halls, military hospitals, etc.) prescribed by the Enforcement Decree of the Building Act. The instant Ordinance, which was amended on July 10, 2017 and enforced on the same day, extended the restricted distance for raising pigs within the maximum of 500 meters above the above 300 meters, but expanded the restricted distance for raising pigs to the extent of 1,000 square meters in the area of livestock breeding facilities.

According to the overall purport of the statements and arguments in Eul evidence Nos. 19, 20, 23, and 25 as of July 10, 2017, the defendant newly prepared a topographical map that included the instant application site within 1,000 meters from the boundary of the medical care center in the instant case and the center for senior citizens in the instant case in a zone where livestock raising is restricted (the instant ordinance includes "restricted area" but is not referred to as "restricted area," but referring to a "restricted area," which is the term under the Livestock Excreta Act, as long as the phrase is not cited in the instant ordinance, so long as it does not refer to the phrase "restricted area," which is the term under the Livestock Excreta Act), and thereafter, the defendant issued a public notice on January 24, 2018 to change the topographic map of the Hongcheon-gun-gun raising livestock on February 13, 2018, stating the fact that the instant public notice was omitted to expand the restricted area of livestock breeding by means of the instant Ordinance.

According to the facts found above, although the defendant prepared a topographic map which included the instant application area in the zone where livestock raising is restricted, the relevant topographical map was not published in the Hongcheon-gun newsletter, and there is no other evidence to acknowledge that the defendant publicly announced the relevant topographical map in the official gazette of the Hongcheon-gun. Meanwhile, the part of the instant ordinance in the area where a residential smuggling is located in the instant ordinance is difficult to clearly specify the scope solely by the statutes and the provisions of this Ordinance, and the instant ordinance include differently the distance by the type of livestock, and it is necessary to clearly notify the scope of the restricted area because the contents of the instant ordinance in relation to the livestock raising restriction area include the contents that reduce the 30% of the straight distance from the forestry map where the boundary is formed by the mountainous district to the extent of the restricted area. In light of the above, it is difficult to deem that the contents of the instant ordinance in relation to the livestock breeding restriction area constitute a case where the scope of the area, district, etc. is directly designated in accordance with statutes or the municipal ordinances

Therefore, it is reasonable to view that the designation of the Defendant’s livestock breeding restriction zone that newly included the instant application site, etc. in the new livestock raising restriction zone was not effective since the topographical map was not publicly announced as at November 6, 2018 under the Framework Act on the Regulation of Land Use as at the time the instant disposition was taken.

3) As to the defendant's argument

On January 24, 2018, the Defendant issued a notice on the change of a topographical map in the area where livestock raising is restricted on the ground that the Defendant posted the aforesaid notice on February 13, 2018 in the Hongcheon-gun Environment Sanitation Division and recorded the topographical map in the area where livestock raising is restricted on the ground that the topographical map was also recorded in the Hongcheon-gun Environment Sanitation Division and the land use use regulation information service and the real estate information inquiry system. However, as seen earlier, insofar as the publication of the topographical map in the written notice where livestock raising is omitted on January 24, 2018, the Defendant asserts that the relevant topographical map is publicly notified in the official bulletin of the Hongcheon-gun. Accordingly, this part of the Defendant’s assertion is without merit.

4) Sub-committee

Thus, each of the dispositions of this case where the application of this case is designated and publicly notified as an area subject to restriction on raising of livestock under Article 8(1) of the Livestock Excreta Act is unlawful since there is no ground for disposition. Therefore, this part of the Plaintiff’s assertion is with merit. Therefore, considering the Plaintiff’s infringement of the Plaintiff’s fundamental rights and the necessity of public interest to justify such infringement, or the necessity of protecting a third party’s interests, the remainder of the Plaintiff’s assertion that each of the dispositions of this case

B. As to whether it is possible to add or change the grounds for the disposition

In the first instance trial, the Defendant asserted that each of the instant dispositions was lawful by adding the circumstances that the procedures for consultation on small-scale environmental impact assessment with the head of the original regional environmental office regarding the Plaintiff’s application for permission for development activities and the application for building permission were not implemented as the grounds for each of the instant dispositions. However, the aforementioned grounds for disposition are not identical to the existing grounds for disposition that the instant application was designated and publicly notified as an area subject to restriction on raising livestock under Article 8(1) of the Livestock Excreta Act, and thus, it is reasonable to deem that the Defendant cannot add the above grounds for disposition as the grounds for each of the instant dispositions. Accordingly

5. Conclusion

Thus, the plaintiff's claim shall be accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and each of the dispositions of

Judges Kim Jae-sung (Presiding Judge)