[2] The meaning of the development project under Article 25 (1) of the former Framework Act on Environmental Policy to undergo consultation on the review of environmental impacts

[3] Whether a road construction project under the National Land Planning and Utilization Act is subject to prior consultation on the examination of environmental feasibility under Article 7 (1) [Attachment 2] 2 of the Enforcement Decree of the former Framework Act on Environmental Policy (negative)

1. Regarding ground of appeal No. 1

According to Articles 2, 43, 87, and 88 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), when a project implementer intends to install infrastructure such as roads, he/she shall determine the kind, name, location, scale, etc. of such infrastructure by an urban management plan in advance. The implementer of a project that installs, maintains, or improves urban planning facilities, which are infrastructure determined by an urban management plan, shall prepare an implementation plan for such project and implement such project after obtaining authorization; if deemed necessary for efficient implementation of the project, he/she may implement the project in two or more installments. Meanwhile, according to Articles 2, 5, 17, 20, and 21 of the Environmental Impact Assessment Act (hereinafter “Environmental Impact Assessment Act”), the project implementer shall prepare an environmental impact assessment report and submit an environmental impact assessment report to the head of an agency that approves or approves the project plan, etc., and the head of the agency shall, when he/she intends to request an environmental impact assessment under Article 4 of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Environmental Impact Assessment Act”).

In full view of the above provisions, it is reasonable to deem that, if a project implementer constructs a road through an urban planning facility project under the National Land Planning and Utilization Act, whether the project constitutes an object of environmental impact assessment as a project that newly constructs a road exceeding four kilometers or more, it shall be determined according to the scale of the project on the implementation plan to obtain authorization. The same applies to the case where the project is divided and implemented pursuant

According to the facts and evidence duly established by the court below, the defendant, around July 1996, made a decision on urban planning facilities that will build roads of 3-167 meters in length (hereinafter "the first road of this case"), among the 2,190 meters in the area of Tae-gu Daejeon-dong, Daejeon-gu, Daejeon-gu, and announced the decision on the change of urban planning facilities, which will be newly constructed by extending the length of the above roads of 4,202 meters by 4,202 meters around March 199, and again made a decision on the change of urban planning facilities to newly build the above roads of 4,306 meters in length, and the defendant also announced the change of urban planning facilities after adding the length of the above roads to 4,306 meters to 3,07 meters in length, and the new road of 3-234 meters in length to 207, and the defendant announced the new plan to build new roads of this case by dividing it into 15,205.

In light of the above legal principles, it is necessary to determine whether the project is subject to environmental impact assessment based on the scale of the project under the above implementation plan. The scale of the project under the above implementation plan is 833 meters, and the newly constructed project under the second road is 207 meters. Thus, each of the newly constructed projects under the above implementation plan is "where the same project operator implements the same kind of project within the same impact zone," and even if the scale of the project is combined, it is merely 1,040 meters (83 meters + 207 meters) and it does not constitute "construction of a road above 4 km" as the project subject to environmental impact assessment under subparagraph 1 (e) of the above implementation plan. Therefore, even if it was not conducted prior to the disposition of this case, the disposition of this case is not unlawful.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of projects subject to environmental impact assessment.

2. Regarding ground of appeal No. 2

Article 25(1) of the former Framework Act on Environmental Policy (amended by Act No. 7561 of May 31, 2005; hereinafter the same) provides that the head of the relevant administrative agency shall consult with the Minister of Environment or the head of the relevant regional environmental agency about the examination of environmental impacts before establishing and determining an administrative plan that has an environmental impact, or granting permission for a development project, etc. in order to maintain the appropriateness of environmental standards and preserve the natural environment. However, in cases of a development project that requires the establishment of an administrative plan, consultation about the examination of environmental impacts shall be conducted when establishing and determining the administrative plan. Thus, it is reasonable to deem that a development project that requires consultation on the examination of environmental impacts under Article 25(1) of the former Framework Act on Environmental Policy refers only to a development project for which the establishment of an administrative plan is not required.

Meanwhile, Article 7(1) [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 18693, Jan. 31, 2005; hereinafter the same) provides for the development projects subject to prior consultation on the examination of environmental feasibility under subparagraph 1, Article 7(1) [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 18693, Jan. 31, 2005; hereinafter the same) as one of the administrative plans subject to prior consultation on the examination of environmental feasibility under subparagraph 2, and provides for the "road construction plan under the National Land Planning Act" among the administrative plans subject to prior consultation on the examination of environmental feasibility under subparagraph 1(f). However, inasmuch as the establishment of a road under the National Land Planning Act requires the establishment and confirmation of an administrative plan, it does not constitute a development project under Article 25(1) of the former Framework Act on Environmental Policy. Accordingly

The allegation in the grounds of appeal in this part is that the business with the first road of this case is a development project under Article 25 (1) of the former Framework Act on Environmental Policy, and there is an error of omission of judgment or misapprehension of legal principles as alleged in the judgment of the court below, on the premise that it is subject to prior consultation on the environmental review under Article 7 (1) [Attachment Table 2] 2 (b) of the former Enforcement Decree of the Framework Act on Environmental Policy. However, as seen earlier, the above business is an urban planning facility project that constructs a road under the National Land Planning Act and is subject to prior consultation on the environmental review under Article 7 (1) [Attachment Table 2] 1 (f) of the former Enforcement Decree of the Framework Act on Environmental Policy, and it is not subject to prior consultation on the environmental review under subparagraph 2 (b) of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)