Plaintiff (Attorney Kim Tae-sik et al., Counsel for plaintiff-appellant)

From among the heads of branch offices in Pyeongtaek-si (Law Firm Doll, Attorney Seo-jin, Counsel for defendant-appellant)

May 30, 2018

1. The plaintiff's claim is dismissed.

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

The revocation disposition of the building permit granted by the Defendant to the Plaintiff on September 28, 2017 is revoked.

1. Details of the disposition;

A. The Plaintiff filed an application for a building permit with the Defendant on January 12, 2017, to construct the same and plant-related facilities (hereinafter “instant facilities”) on the land of the △△-si and three lots outside the △△-si ( Address 2 omitted), and obtained the building permit from the Defendant (hereinafter “instant building permit”).

A building site location (area of a site) of a building site (area of a site) located within the main sentence; the total floor area of a building site (area of a site)/number of floors; 2.0 Do-ri ( Address 2 omitted); 1 omitted); (2) 3 omitted; (3) Dong and plant-related facilities ( Address 4 omitted); 7,457 3, 277 3, 277.35 10 - Dong and 10 - ground;

B. On July 20, 2017, the Defendant notified the Plaintiff that he/she should submit his/her opinion by August 2, 2017 when he/she notified the Plaintiff of the revocation of the instant construction permit on the following grounds, and thereafter, the hearing procedure was conducted on September 20, 2017 upon the Plaintiff’s application for the hearing.

In accordance with Article 11(5) of the Building Act, the building permit of this case was not examined by the provisions of permission for development activities (standards for permission for development activities) under Article 56(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) (hereinafter “National Land Planning Act”) pursuant to Article 11(5) of the same Act - In addition, it is necessary to extensively gather opinions in consideration of impacts on surrounding areas at the time of the building permit of this case. The market instructions to hold resident briefing sessions and the opinion that it is anticipated to cause malodors at the time of low pressure of △△ Eup, even if the market instructions to hold resident briefings and the opinion that it is anticipated to cause malodors to occur, the residents of the large-scale △△△△ district are not holding resident briefing sessions to the residents of the large-scale housing site area - In order to avoid the small environmental impact assessment under Article 59 [Attachment Table 4] of the Enforcement Decree of the Environmental Impact Assessment Act, the use of which is 11,284 square meters, the area of the project plan is reduced to 7,

C. On September 28, 2017, the Defendant notified the Plaintiff that the instant building permit was revoked on the grounds of revocation as follows (hereinafter “instant disposition”).

Table contained in the main sentence - Failure to meet the requirements for permission for development activities under Article 56 (1) of the National Land Planning and Utilization Act - Failure to conduct small environmental impact assessment under Article 59 [Attachment Table 4] of the Enforcement Decree of the Environmental Impact Assessment Act - Division due to the prevention of subdivision of farmland ownership

D. The Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Gyeonggi-do Administrative Appeals Commission, but the Gyeonggi-do Administrative Appeals Commission dismissed the Plaintiff’s above claim on April 2, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 3 through 7, and 22 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Summary of the parties' arguments;

A. The plaintiff

1) Although there was no legal defect in the provisions regarding permission for development activities regarding the instant application for the instant building permit, the Defendant, even though there was no legal defect, did so in the civil petition of the residents, and thus, it is unlawful.

2) In order to revoke the existing building permit that the Defendant had already dealt with lawfully and reasonably, it should be the case where the construction permit of this case was due to the Plaintiff’s act of application by concealment of facts or other fraudulent methods, or there is a serious defect in the existing disposition to the extent that it would justify the disadvantage that the Plaintiff would suffer, and without such a reason, it was unlawful since the Defendant infringed the Plaintiff’s trust interest and revoked the building permit of this case by deviating from and

B. Defendant

The instant building permit is deemed to belong to the area of discretionary judgment, and there are grounds for non-permission as follows, and the revocation of the instant disposition is legitimate.

1) The instant site for the instant facilities falls under an agricultural and forest area under the National Land Planning Act, and the requirements for permission to engage in development activities under Article 56(1) of the National Land Planning Act are required. The construction of the instant facilities is likely to cause water pollution, etc. to nearby farmland and a new city, and are accompanied by changes in the form and quality of land. Therefore,

2) The Plaintiff filed an application for the instant building permit, even though it is not possible to divide it according to the Farmland Act, was arbitrarily divided into 345 square meters out of the site for the instant facility, and applied for reduction of the site area, thereby violating the Building Act and its Enforcement Decree, and the actual business plan area of the instant facility site, which is an agricultural and forest area, is more than 7,500 square meters, and thus, the instant building permit lacking it is subject to small environmental impact assessment.

3) The above defects of the instant building permit are due to the Plaintiff’s concealment of facts, etc., and the Plaintiff was also expected to have the possibility of revocation, and thus, the Plaintiff cannot invoke the trust interest.

4. The legality of disposition.

A. Facts of recognition

1) The land, which is the site for the instant facilities, falls under the agricultural and forest area and the agricultural promotion area under the National Land Planning Act, and the land ( Address 1 omitted), among which ( Address 2 omitted), ( Address 1 omitted), ( Address 3 omitted), and ( Address 4 omitted) is farmland for which the agricultural and fishing infrastructure improvement project was implemented in accordance with the Rearrangement of Agricultural and Fishing Villages Act.

2) According to the statement of land cadastre, etc., the total area of the above land, which is the site for the instant facilities, is 11,284 square meters. However, the Plaintiff filed an application for the instant building permit with only the remainder of 7,457 square meters excluding the total area of 3,827 square meters, such as excluding 345 square meters among the above ( Address 1 omitted) land, and excluding it from the site area.

3) On June 19, 2017, the Second Civil Petition Coordination Committee filed an objection to the instant building permit, and the deliberation was conducted on June 19, 2017. As a result of the deliberation, the said committee notified that “The construction permit was insufficient without considering the surrounding traffic conditions, such as access roads infrastructure, malodor, noise, etc. regarding the instant facilities, and that the Plaintiff intentionally reported the reduction of the project plan area to exempt the environmental impact assessment.”

4) The Plaintiff did not undergo a small-scale environmental impact assessment on the instant facilities until now, as well as at the time the Plaintiff applied for the instant building permit.

5) The surrounding area of Pyeongtaek-si and △△-Eup located in a remote place from the site of the instant facilities was designated as △△ Housing Development Zone and a large-scale apartment complex was constructed, and approximately 5,98 households, 18,691 occupancys and resides therein.

[Reasons for Recognition] Facts without dispute, Eul's entries or images, and the purport of the whole pleadings, including evidence of Nos. 2, 8 through 12, 15, 16, 22 and 23

B. Determination

(i) the existence of the reasons for the measure

According to Article 2(1)1 of the Building Act and Article 3(1)1 of the Enforcement Decree of the Building Act, in cases where one building is constructed over at least two parcels of land, “site” refers to the total of each parcel of land on which the building is constructed; according to Article 22(2)3 of the Farmland Act, farmland for which a project for improving agricultural production infrastructure under the Rearrangement of Agricultural and Fishing Villages Act is implemented is not divided if the area of each parcel of land after division does not exceed 2,00 square meters; according to Article 43(1) of the Environmental Impact Assessment Act and Article 59 of the Enforcement Decree of the same Act, in cases of an agricultural and forest area under Article 6(3) of the National Land Planning Act, the area of the project is at least 7,500 square meters.

On the other hand, if a disposition such as approval is taken without going through an environmental impact assessment, the contents of the consultation with the Minister of Environment in order to collect the opinions of the residents in the area subject to the environmental impact assessment in advance and reflect them in the project plan on the basis of the results thereof shall be obstructed by the original source. If so, the legislative intent of the environmental impact assessment system cannot be achieved in order to prevent the environmental destruction and to maintain and create a pleasant environment, and if so, the direct and individual interests of the residents in the area subject to the environmental impact assessment may be fundamentally infringed, the defect of such administrative disposition shall not be deemed to be significant and objectively obvious (see Supreme Court Decision 2005Du14363, Jun. 30, 2006).

Based on the above legal principles, the land of this case, which is the site for the facility of this case, is farmland that has been implemented for the project for the improvement of agricultural production infrastructure under the Rearrangement of Agricultural and Fishing Villages Act. Thus, dividing the area of each parcel after the division into a certain area not exceeding 2,00 square meters, is not permitted under the Farmland Act. The plaintiff filed an application for the building permit of this case on the premise that the area excluded from the above ( Address 1 omitted) land is 345 square meters. This is the farmland division in violation of the Farmland Act. ② The land size of the site for the facility of this case is 7,802 square meters (7,457 square meters + 345 square meters) and the land of this case, which is the site for the facility of this case, is subject to the small environmental impact assessment under the Act on the Improvement of Agricultural and Fishing Villages. The plaintiff's application for the building permit of this case is not subject to the construction permit of this case, without considering the plaintiff's unlawful farmland division into the land subject to the construction permit of this case and the construction permit of this case.

Therefore, we cannot accept all the Plaintiff’s assertion that the instant disposition is due to the civil petition of the residents only, or that there is no legitimate reason for disposition.

2) Whether a person violates the principle of trust protection or deviatess from or abused discretionary power

In cases where a beneficial administrative disposition is cancelled or withdrawn, it would infringe upon the vested rights of the people. Thus, even if there are grounds such as cancellation, the exercise of the right to cancel shall be determined by comparing and comparing with the disadvantages that the other party receives, only when it is necessary for the important public interest to justify the infringement of the vested rights or when it is necessary to protect the interests of a third party (see Supreme Court Decisions 2003Du10251, 10268, Nov. 26, 2004; 2009Du12648, Nov. 12, 2009, etc.).

However, when examining whether there is deviation or abuse of discretionary authority in relation to permission of an administrative agency for development activities that are likely to cause environmental damage or pollution, the determination should be made with careful consideration of the legislative purport of various regulations on the utilization status and balance of rights and interests and the protection of environmental rights among interested parties who have conflicting interests with those of the relevant region, such as living environment, etc. Therefore, the determination and determination should take into account the following: “All citizens shall have the right to live in a healthy and pleasant environment, and the State and citizens shall endeavor to preserve the environment” (Article 35(1)) of the Constitution stipulates environmental rights as fundamental rights under the Constitution; at the same time, the State and citizens shall have the duty to endeavor to preserve the environment; the Framework Act on Environmental Policy sets forth the rights and duties of the citizens to endeavor for environmental preservation and the duties of the State and local governments; and the business entities (Articles 1, 4, 5, and 6); and the State, local governments, business entities, and citizens shall take into account the circumstances where all acts using the environment are committed (Article 2).5).

In full view of the following circumstances, based on the above legal principles, which can be recognized by the facts acknowledged earlier and the purport of the entire pleadings, the disposition of this case does not constitute an unlawful violation of the principle of protection of trust, or a deviation or abuse of discretionary power, even when considering all the circumstances alleged by the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

In light of the legislative purport of the environmental impact assessment system as seen earlier, defects that did not undergo the environmental impact assessment are very significant, and the balance of rights and interests among interested parties who can be achieved through the environmental impact assessment also constitutes a serious public interest. In addition, it is determined that the “public interest in which the residents of a large-scale apartment complex who reside in the vicinity of the site of the instant facility is likely to cause environmental damage or contamination” that can be achieved through the instant disposition is also reasonable.

(B) The Plaintiff filed an application for the instant construction permit by stating the site area of the instant facility that cannot be divided under the Farmland Act as 7,457 square meters, and the Plaintiff’s report on the reduction was caused by the failure to conduct a small environmental impact assessment on the instant facility at the time of the instant construction permit.

The plaintiff asserts that the facility in this case does not adversely affect the surrounding environment with the complete purification facility. However, each image of the Gap evidence No. 4-1 and No. 2 is insufficient to acknowledge the plaintiff's assertion, there is no other evidence to acknowledge it, and further, if the facility in this case is a facility with no possibility of environmental pollution, the plaintiff can obtain a construction permit again after going through due process such as gathering opinions from local residents and modification of the project plan.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Hong Jin-chul (Presiding Judge)