Plaintiff

Head of Busan Construction Administration

November 21, 2014

Busan District Court Decision 2013Guhap3581 Decided May 23, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. The defendant's decision of July 12, 2013 on the "National Land Management Agency of Busan National Land" under Article 2013-313 of the notification of the defendant's National Land Management Office of Busan National Land Management is revoked in the part of "inboard" connecting each point in the table No. 1, No. 2, 3, 4, and 1 of the annexed Map No. 1 in Ulsan-gun, Ulsan-gun, U.S. forest land.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the part of the first instance judgment, except for the addition of the following judgments. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

In making the instant road zone decision, the Defendant did not prepare an environmental impact assessment report on the said section, even though the said section was a civil petition, and did not undergo the procedures for gathering opinions from residents, etc., and the procedures for disclosing the results of gathering opinions from residents, etc. and whether it was reflected in the project plan, etc., and did not properly conduct the environmental impact assessment on the said section. Therefore, the instant road zone decision is unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) In full view of the purport of the entire pleadings, the following facts can be acknowledged in the entries in Gap evidence Nos. 6, Eul evidence Nos. 3 through 8.

A) The road construction project that the Defendant intends to implement through the instant road zone is a project subject to the environmental impact assessment under Article 4 (1) 5 of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (amended by Act No. 9037 of March 28, 2008, which was implemented on January 1, 2009; hereinafter referred to as the "former Environmental Impact Assessment Act"), and the administrative plan, the contents of which are the said project, is a project subject to the environmental impact assessment under Article 4 (1) 5 of the former Framework Act on Environmental Policy (amended by Act No. 9037 of March 28, 2008, which was enforced on January 1, 2009; hereinafter referred to as the "former Framework Act on Environmental Policy").

B) On November 21, 2006, the Defendant requested consultation on the prior examination of environmental feasibility to the basin basin environmental office in the Nakdong River basin pursuant to Articles 25-3 and 25-4 of the former Framework Act on Environmental Policy, and prepared and submitted a statement of prior examination of environmental feasibility on May 15, 2007.

C) The aforementioned preliminary review or the preliminary review supplementary statement (No. 6) presented a proposal for the installation of new routes and the utilization of existing roads to compare them with the items such as traffic system, road safety, road alteration, green area nature map, earth and sand, obstacles, noise at the time of construction, noise at the time of use, etc., and it is reasonable to establish new routes in terms of civil petition and living environment, traffic flow, future development plans and road functions. The 01 school section at issue of the Plaintiff is included in the said new routes.

D) On June 14, 2007, the basin environmental office in the Nakdong River basin notified the Defendant of the consultation opinion in accordance with Article 25-6 of the former Framework Act on Environmental Policy. The content agrees on the examination of opinions on each type of the East River basin environmental office, such as the same plants, water quality and landscape, and the measures to reduce the environment impact assessment, which are presented by the basin environmental office, on the condition that the environmental impact assessment should be reflected in the environmental impact assessment report, and there is no particular reference as to the 0

E) Accordingly, the Defendant: (a) prepared a draft environmental impact assessment report; (b) conducted a public inspection for residents from October 8, 2007 to November 16, 2007; and (c) gathered the opinions of the residents pursuant to Article 6 of the former Environmental Impact Assessment Act, including holding a resident briefing session on October 16, 2007; and (c) received the opinions from the relevant agencies to include them in the contents of the environmental impact assessment report; and (d) requested consultation on the environmental impact assessment report from the head of the Nakdong River basin basin environmental office on December 15, 2008 pursuant to Article 17 of the former Environmental Impact Assessment Act.

F) The above Environmental Impact Assessment (Evidence No. 6, No. 4, 7, and 8) provides that ① after comparing the advantages and disadvantages with the existing roads by putting up a proposal for the installation of new routes and for the utilization of existing roads, the proposal for the installation of new routes shall enhance the arterial function bypassing the astronomical social and environmental dispute sections, bypassing urban planning sections in accordance with the design standards for national highways construction works, and evaluate them in technical and economic terms. ② After classifying the new routes into the air environment, water environment, land environment, natural ecosystem, and living environment, the harmful impact of the new routes, including the 01 intersection sections, on the natural environment, living environment, living environment, and social and economic environment, shall be predicted and analyzed, and the countermeasures shall be taken accordingly. ③ In particular, when the construction works are conducted on the 001 intersection section, the total amount of compensation for the relocation of graves, etc. after classifying the impact of the new routes into the environmental noise level, landscape, etc., which may occur due to the operation of the roads after the completion of noise level, and the relocation of graves.

G) On April 2, 2009, the basin basin environmental office in the Nakdong River basin was amended by Act No. 9037 of Mar. 28, 2008 and enforced on Jan. 1, 2009 (hereinafter “former Environmental Impact Assessment”) and notified the Defendant of the consultation pursuant to Article 18 of the former Environmental Impact Assessment Act (amended by Act No. 9037 of Jan. 1, 2009; hereinafter “former Environmental Impact Assessment Act”) and Article 6 of the Addenda. The contents are as follows: “The measures are to be taken so that the implementation can be implemented at the time of the implementation of the project by reflecting the review opinions by items such as air quality, water quality, land use, noise, vibration, landscape, etc. presented by the basin environmental office in the Nakdong River basin environmental assessment plan

2) According to the above facts, with respect to road construction projects to be implemented through the determination of the road zone in this case, the defendant properly conducted all procedures related to the preliminary examination of environmental impact under the former Framework Act on Environmental Policy, the former Environmental Impact Assessment Act, and the former Environmental Impact Assessment Act, with respect to the entire sections of new routes including the 001 school sections, and its contents are faithful in light of the legislative intent of the preliminary examination of environmental impact and the environmental impact assessment under the former Environmental Impact Assessment Act, and it is difficult to view that the environmental impact assessment on the 001 school sections was not conducted properly as

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal against it is dismissed as it is without merit.

[Attachment]

Judges Park Jae-young (Presiding Judge)