Busan District Captain 00

Doz. ○○

Law Firm Macro et al., Counsel for defendant

[Defendant-Appellant]

Law Firm Han-han, Attorney Han-soo

Attorney Kim Young-soo

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

A. On April 27, 2011, the Plaintiff submitted to the Defendant a waste treatment business plan stating that he/she is engaged in an interim waste treatment business (other recycling expertise; hereinafter referred to as “instant business”) for waste trees, waste singinginging, and waste households, etc. in the ○○○○○○○○○○, Busan-gun, and a site for factory (hereinafter referred to as “instant site”).

B. On July 9, 2011, the Defendant rendered a disposition to return the waste treatment business plan to the Plaintiff for the following reasons (hereinafter “instant disposition”).

The articles of incorporation is a city planned to accommodate only a population of 9 only, and the Plaintiff’s waste disposal facilities enter due to the characteristics of the articles of incorporation, which is a subdivision-type due to noise, dust, malodor, etc. due to the grouping of waste disposal facilities, and due to environmental damage and deterioration of the living environment during the discharge of new cities, 1,200 residents are continuously opposed to the Plaintiff’s signature, etc. The Plaintiff filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission on August 23, 2011. However, the Busan Metropolitan City Administrative Appeals Commission dismissed the Plaintiff’s claim on October 4, 2011.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

Considering the following circumstances, (i) the instant disposition was rendered solely on the ground that there is a petition filed by neighboring residents who oppose the installation of waste disposal facilities, and (ii) there is no waste disposal company, such as the Plaintiff, among the above enterprises, and (iii) the Plaintiff’s submission of verification materials that the noise, dust, malodor, etc. that are likely to occur from the said projects do not cause damage to the surrounding environment, it is unlawful that the Defendant’s disposition of this case was in violation of the principle of equity and is an abuse of discretion.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are recognized, either in dispute between the parties or in full view of Gap evidence of 3 to 6, Eul evidence of 2 to 6, the results of the on-site inspection by this court, and the purport of all pleadings.

1) On May 11, 201, a new city is located in the neighboring area of the instant site. The new city is 26,400 persons as of the end of October 201. Of the residents living near the new city of the articles of incorporation, some of the residents living around the new city of the articles of incorporation were about 81 times to August 201, 201, a approximately 81 environmental civil petition ( approximately 38 times the civil petition related to the new construction construction work noise, and approximately 18 times the civil petition related to the waste disposal business and the factory) to the Defendant. On May 11, 2011, a resident living around 00 pages of the instant site submitted a written opinion to the Defendant that “the residents living in the instant site of the instant case are likely to cause serious harm to the health of the residents due to the aggravation of their living environment due to the intensive concentration of all suspected facilities and evasion facilities due to the creation of the new city, waste disposal process noise, dust, malodor, etc.”

3) On June 9, 2011, the Defendant held a conciliation committee for civil petitions against the captain in relation to the instant project, and the said conciliation committee decided that “The instant project should be submitted by supplementing verified materials that clearly explain that it does not cause any environmental damage, such as noise, dust, malodor, etc., which is a majority of the civil petitions.”

4) On June 15, 2011, the Defendant requested the Plaintiff to supplement the civil petition documents (application for waste disposal business plan) with the content that “the instant project will not cause any environmental damage by July 29, 2011,” by supplementing materials that clearly explain that “the instant project will not cause any environmental damage.”

5) On July 21, 201, the Plaintiff submitted to the Defendant a supplementary document for the interim waste disposal business plan, including the prediction of impact on pollutants, as follows:

○ 오염물질 영향예측 | 사업장 오염물질 발생 및 배출농도 농도단위 : 대기(mg/sm), 소음[dB(A)]

A person shall be appointed.

Pug/metres unit of impact on nearby static facilities: Bug/metres

A person shall be appointed.

| 소음 : 사업장에서 발생하는 소음은 생활소음기준을 만족하며, 정온시설 위치한 지점에서 예측한 결과

Unit: dB (A)

A person shall be appointed.

The malodor 5031.318.3 : The place of business is not a malodor-generating facility.

6) The present status of the instant site and its surrounding areas are as follows.

A) On the north of the site of this case, the site of this case is located under the position of OO (waste recycling company), 000 waste incineration station, ○○○○○○○ (Waste recycling company) is located within the east, and the site of this case is surrounding the site of this case by various waste disposal business entities, such as where the factory is opened, when the local industrial complex was formed by the articles of incorporation of Busan, and where the factory is located 1m or more from the open to the south, and 000 (Waste Waste Recycling Business), 000 (Intermediate Waste Recycling Business), and 000 (Intermediate Waste Recycling Business), etc.

B) The vicinity of the instant site does not seem to be a civilian, and there is a “alley village” at a distance of 550 meters from the instant site to the north, and there is a “elim village” at a distance of 800 meters from the instant site to the northwest, and there is an apartment complex outside ○ apartment complex at a distance of 1,440 meters to the west from the instant site.

D. Determination

1) Examining the structure or text of the statutes related to permission for construction waste interim disposal business, these regulations provide for the minimum requirements to obtain permission for construction waste interim disposal business, but they have left room for discretion as to the appropriateness of the business due to the failure to uniformly determine the appropriateness of the business plan. In such a case, the determination of the standards necessary to notify the appropriateness of the business plan also belongs to the discretion of an administrative agency. Thus, barring any special circumstances where the established standards are objectively unreasonable or unreasonable, the administrative agency’s intent shall be respected as far as possible. However, if the established standards are objectively unreasonable or unreasonable, or if the standards are deemed unreasonable or unreasonable without establishing them, or if the business plan are returned without a specific and reasonable reason, the decision of the administrative agency should not be respected solely on the ground that it falls under the discretion of the administrative agency, and in such a case, the disposition is unlawful as a measure abusing its discretion or deviating from its scope (see Supreme Court Decision 2004Du96161, May 28, 2004).

2) In light of the following circumstances acknowledged by the above facts, i.e., (i) the construction plan for the instant project pursuant to the waste treatment business plan submitted by the Plaintiff to the Defendant appears to have not been otherwise inconsistent with the installation standards set forth in the relevant laws and regulations; (ii) the neighboring land adjacent to the instant site has a variety of waste treatment business entities installed; and (v) the instant site zone is a factory zone, including where the Busan Industrial Complex is formed by the Busan Industrial Complex at least 1m in width.

It seems that considerable development has been completed. ③ According to the supplementary plan for the business plan among wastes submitted by the Plaintiff to the Defendant, pollutants, noise, etc. generated from the instant project are below the regulatory standards and malodor does not occur. Moreover, it is difficult to deem that the instant project has any impact on the neighboring residents’ living environment or living environment due to the instant project because there is no citizen in the surrounding area of the instant site and the village and apartment house has been at least 500 meters away from the instant site. ④ The Defendant may again impose conditions or burdens on the Plaintiff to prepare a plan to reduce environmental damage necessary for supplementation in the project plan at the stage of permission, and take measures to prevent environmental damage through supervision at the stage of operating the waste disposal facilities. ⑤ The Defendant is able to devise measures to prevent environmental damage through supervision at the stage of operating the waste disposal facilities. ⑤ The Defendant fails to present specific and reasonable reasons on the degree of the occurrence of pollutants, noise, etc. generated from the instant project or the possibility of the damage to neighboring residents’ living environment due to it is unlawful in light of the fact that the guidelines for permission for waste disposal business cannot be simply against the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Kim Gin-han

Judges Kim Gin-ju