(영문) 춘천지방법원 강릉지원 2016.3.31.선고 2015구합1961 판결

A. On November 3, 2014, the Plaintiff received the approval of the business plan for the development of tourist farms prescribed in Article 83 of the former Rearrangement of Agricultural and Fishing Villages Act (hereinafter referred to as the "business in this case") (hereinafter referred to as the "approval of this case") from the Defendant to create tourist farms by installing farming experience facilities, etc. on 28,982 meters among the forest land in Gangwon-gun, Yangyang-gun, and four parcels of land, both Gangwon-gun and the Defendant (hereinafter referred to as "disposition of this case").

B. On March 5, 2015, the Plaintiff filed an application for change of the business plan with the Defendant to partially change the business location of the instant case, and the Defendant was in the process of performing its business prior to the instant disposition of approval.

Although it should have undergone the consultation procedure with the competent administrative agency on small environmental impact assessment, it was confirmed that it was excessive, and notified the Plaintiff of the suspension of construction works on the instant project until the above consultation procedure is completed on April 14, 2015, April 28, and May 14 of the same year.

C. On May 26, 2015, the Defendant: (a) held a hearing on whether the revocation of the instant approval disposition; and (b) held a construction suspension order to arrange the instant project site and remove soil and sand at risk of leakage to the Plaintiff in order to prevent environmental pollution caused by rain and rain.

6. The reservation made up to 30.30. On the other hand, the notice of the decision whether to cancel the approval has been given according to the results of the construction suspension and the consultation on small environmental impact assessment.

D. On July 2, 2015, the Defendant issued a disposition revoking the instant approval disposition in accordance with Article 116(1)2 of the former Rearrangement of Agricultural and Fishing Villages Act (hereinafter “instant revocation disposition”) on the ground that “The Plaintiff submitted a review of small-scale environmental impact assessment to the Plaintiff in order to proceed with the procedures for consultation on small-scale environmental impact assessment, but failed to implement the review, such as installing access roads beyond the reservation scope of the construction suspension order, and failed to implement the matters determined in the procedures for the hearing.”

E. On October 22, 2015, the Defendant added the content that “the instant revocation disposition was revoked ex officio on the ground that it did not go through the consultation procedure on small environmental impact assessment,” on the first date for pleading of the instant case.

【Grounds for Recognition】

Gap evidence 1-1, 2, 3-1, Gap evidence 7, 9, 12, 14, Eul evidence 2, and the purport of the whole pleadings

2. Determination as to the legitimacy of the revocation disposition of this case

A. The summary of the Plaintiff’s assertion (1) asked the Defendant’s public official in charge prior to the instant approval, whether the instant project site should undergo a small-scale environmental impact assessment to obtain approval of the tourist farm development project plan, and the public official in charge responded not to the relevant laws and subordinate statutes. Accordingly, the Plaintiff filed an application for approval of the project plan without preparing documents on small-scale environmental impact assessment, and the Defendant determined that the project site is not subject to a small-scale environmental impact assessment, and issued the instant approval disposition without following the consultation procedure. The Plaintiff’s order for the suspension of construction was considerably advanced when the construction was ordered due to the progress of the process, and most forests were damaged, and thus, it was impossible to undergo a small-scale environmental impact assessment or request the consultation. During the hearing process, the Plaintiff was ordered to suspend the construction project until June 30, 2015 for the rearrangement of soil sand of the instant project site, and the Plaintiff’s removal of soil sand at risk, and the Plaintiff did not request the Plaintiff to suspend the construction project without being subject to the suspension order at the time of construction project.

(2) In addition, since the Defendant’s disposal of the instant approval without going through a small-scale environmental impact assessment procedure was entirely attributable to the Defendant, the defect of the said disposal was entirely attributable to the Defendant. From June 2015, the Plaintiff trusted the instant approval disposition and carried out construction work by bringing about about KRW 337 million from June 2015. The Plaintiff’s disposal of the instant project site is in the state where most of the instant project site was already damaged by construction and is in the state of restoration. Accordingly, if the instant approval disposition is revoked, the Plaintiff would suffer enormous loss. On the other hand, the area where the actual development act occurred in the instant project site is in the aggregate of 7,40 meters, and the remainder of 21,582 square meters is in the site for planting agricultural crops, and thus, the Plaintiff’s disposal of the instant project is unlawful, as long as it would result in the Plaintiff’s cancellation of discretion to develop the instant project site, rather than leaving the forest in the state of damage.

(b) Related statutes;

[Attachment 2] The entry in the relevant Acts and subordinate statutes is as follows.

C. Determination

(1) Additional grounds for disposition and determination of legality of the revocation disposition of this case

As seen earlier, the Defendant added the following facts to the grounds for the revocation of the instant disposition: “The ex officio revocation of the instant disposition due to the defect that did not undergo prior consultation procedures for the small-scale environmental impact assessment during the course of the instant lawsuit.” The additional grounds for the disposition are as follows: “Non-performance of consultation procedures for the small-scale environmental impact assessment, which is the main contents of the initial grounds for the disposition;” and “the right to ex officio revocation of the illegal disposition, other than Article 116(1)2 of the former Rearrangement of Agricultural and Fishing Villages Act, is added to the legal basis for the disposition. Therefore, according to the relevant legal principles (see Supreme Court Decision 2005Du10446, Oct. 13, 2006).

Since the cancellation disposition of this case can be maintained only on the grounds of additional disposition, it is first considered to be legitimate.

(2) Whether there is a defect in the approval disposition of this case (A) Environmental Impact Assessment Act was established or implemented by requiring that the relevant plan and project be predicted and evaluated in advance as to the environmental impact, and plans for environmental conservation be established to promote an environment-friendly and sustainable development and a healthy and pleasant life for citizens. According to the above Act, a person who intends to implement a development project prescribed by Presidential Decree (Article 43(1)); a development project not falling under the category and scope of the project subject to environmental impact assessment (Article 43(1); a project subject to approval, etc. shall prepare a small-scale environmental impact assessment report and submit it to the head of the approving agency before obtaining approval for the project subject to environmental impact assessment (Article 44(1)); and the head of the approving agency, etc. shall not request consultation on the small-scale environmental impact assessment to the Minister of Environment before obtaining approval for the project subject to environmental impact assessment (Article 47(4)5); and the head of the approving agency, etc. shall not request consultation on the small-scale environmental impact assessment within the period prescribed by Presidential Decree No. 45).

(B) According to the facts acknowledged earlier and Eul evidence 3-1 and Eul evidence 3-2, the project site of this case is an agricultural and forest area under Article 6-3 of the National Land Planning and Utilization Act, and the project area of this case reaches 28,982 meters, and thus the project of this case constitutes a project subject to small environmental impact assessment. In light of the purport of establishing a project subject to small environmental impact assessment under the relevant Acts and subordinate statutes and requiring a prior assessment and assessment of environmental impact and measures to preserve the environment by without going through a small environmental impact assessment prior to the approval disposition of this case, it is unlawful for the defendant to take the approval disposition of this case without going through a small environmental impact assessment prior to the approval disposition of this case and without consultation with the Minister of Environment. (3) Whether the administrative disposition of this case was unlawful due to deviation or abuse of discretion, and if there is a defect in the administrative act, the agency may cancel it by itself without any separate legal basis, but if it is necessary for the parties to this case to cancel a strong disadvantage, such as the right of cancellation and protection of public interest, etc.

5. The facts of recognition (b)

1) The instant project site is a preserved mountainous district under the Mountainous Districts Management Act, and is an agricultural and forest area under the National Land Planning Act, and most of which correspond to Class 1 area on the ecological and natural map as stipulated by Article 34(1) of the Natural Environment Conservation Act. In the instant project site, various tree trees, such as pine trees, frout trees, and frout trees were inhabited.

2) The Plaintiff is subject to the instant disposition of approval on November 3, 2014 by the Defendant and on November 3, 2014, in order to implement the tourist farm development project with the content of planting crops on the 21,582 square meters in the instant land, and installing a camping site on the 3,534 square meters in the site, 3,866 square meters in the site, and installing roads and parking lots on the 3,534 square meters in the site.

9. Of the instant project sites, permission to collect earth and stones on 6,391 meters was obtained, and construction began around that time.

3) However, on March 5, 2015, the Defendant: (a) received an application for the revision of the instant project plan from the Plaintiff; (b) asked the Plaintiff whether the instant project constitutes a project subject to the said environmental impact assessment; (c) on April 2, 2015, the original regional environmental office asked the Plaintiff whether the instant project was conducted; (d) on April 9, 2015, the head of the original regional environmental office asked the Plaintiff to suspend the construction project prior to the permission of the project and to implement the procedures for consultation on small-scale environmental impact assessment as it constitutes a project subject to the said project with a capacity of at least 7,50 square meters, which requires permission in the agricultural and forest area; (e) on several occasions on April 14, 2015, and May 14, 2015, the Defendant reserved the order to suspend the construction project without complying with the instant order to suspend the construction project until the end of May 26, 2015.

5) As seen earlier, on July 2, 2015, the Defendant rendered the instant revocation disposition on the ground that the Plaintiff did not comply with the hearing’s decision, such as consultation on small-scale environmental impact assessment and suspension of construction work. On July 6, 2015, the Plaintiff filed an objection against the Defendant on July 6, 2015. On July 17, 2015, the Defendant issued the instant approval disposition to determine that the project plan area is less than 30,00 meters due to an error in construction in the process of examining the Environmental Impact Assessment, and that the instant approval disposition was not subject to small-scale environmental impact assessment. However, in the process of reviewing the relevant laws in the process of applying for the alteration of the project plan, the Defendant issued a temporary order to suspend construction works, and ordered the Plaintiff to comply with the small-scale environmental impact assessment procedure. However, the Plaintiff did not submit a small-scale environmental impact assessment report, and did not comply with the first disposition of revocation, such as neglecting construction works such as access roads.

6) In response to the fact-finding by this court, the head of the original regional environment office sent a reply to the fact-finding, and environmental impact assessment is the procedure that must be conducted prior to the approval of the approving authority. Although the consent, conditional consent, and additional consent are given, the project site in this case can be determined and notified as non-contests unless there are special reasons (where local vegetation falls considerably short of the first grade designation criteria) as a first grade area in the ecological and natural year, as the project site in this case is in principle the conservation and restoration of the natural environment pursuant to Article 28(2) of the Enforcement Decree of the Natural Environment Conservation Act.

7) A considerable part of the instant project site was destroyed by the extraction or cutting of standing trees, cutting of standing trees, and gathering soil and rocks before the date of closing the argument in the instant case and the construction is suspended.

【Grounds for Recognition】

Gap evidence Nos. 1 and 2-5, Gap evidence Nos. 16, 17, Eul evidence Nos. 2, Eul evidence Nos. 3-1, 2, Eul evidence Nos. 5, 7, 8, 9, and 13, each fact inquiry results against the head of the original local environment office of this court, and judgment of the whole purport of the pleadings (C)

1) The Environmental Impact Assessment Act prohibits a project implementer of a small environmental impact assessment from commencing construction before the procedure for consultation is completed. The head of the approving agency shall not grant approval, etc. for a project subject to the small environmental impact assessment before the procedure for consultation is completed. This constitutes a serious public interest to prevent environmental destruction and to maintain and create a pleasant environment by reviewing in advance the impact of the project on the environment as to an area requiring conservation and an area requiring planned development considering the environment as it is apprehended to have difficulty in development. Furthermore, the Natural Environment Conservation Act aims to ensure the sustainable use of the natural environment by systematically preserving and managing the natural environment, such as the protection of the natural environment from artificial damage, conservation of ecosystems and natural scenery, and so that people can live in a comfortable environment and healthy life (Article 34(1)); the head of the approving agency shall determine the standards for the small-scale environmental impact assessment by classifying the natural environment into an ecological and natural environment conservation project under Article 2(2) of the Enforcement Decree of the Natural Environment Conservation Act; the head of the competent local government having high ecological and natural ecosystem conservation value among the area subject to conservation.

2) The instant project site is a preserved mountainous district designated by the Minister of the Korea Forest Service as a mountainous district for forestry production by deeming it necessary to enhance the functions of forestry production, such as creating forest resources and establishing the foundations for forestry management under the Management of Mountainous Districts Act. The National Land Planning Act classify the land’s specific use area into an urban area, control area, agricultural and forest area, and natural environment conservation area in consideration of the actual conditions and characteristics of the use of land, future directions for land utilization, balanced development between regions, etc., and the agricultural and forest area refers to a preserved mountainous district, etc. under the Mountainous Districts Management Act, which is a preserved mountainous district, etc.

In addition, the project site of this case constitutes the first grade zone on the ecological and natural map. In addition, Article 3 of the Mountainous Districts Management Act provides for the basic principle of mountainous district management in order to enhance the productivity of forestry and to manage the forest in the direction to enhance public interests, such as disaster prevention, water resources protection, conservation of natural ecosystems, conservation of natural scenery, promotion of national health and recreation, etc. In light of the fact that the project site of this case is managed in the direction to develop forest resources and preserve and restore the natural environment, it conforms to

3) According to Article 116(1)2 of the former Rearrangement of Agricultural and Fishing Villages Act, the head of a local government may order the suspension of construction or take other necessary measures in cases where the implementer of a rural improvement project is deemed unable to continue to implement the rural improvement project due to a change in the circumstance or is deemed likely to substantially undermine the public interest. After the Defendant issued the approval of the instant case, it revealed that there was a defect in the approval disposition that did not undergo the small environmental impact assessment and the consultation procedures, and the Defendant continued to suspend construction over several times for several months from that time, and the Plaintiff did not follow the approval order and continued construction that destroyed forests, such as cutting down forests and removing soil and sand. In addition, prior to the revocation of the instant disposition, the Plaintiff carried out earth and sand to the Defendant during the hearing procedure by the end of six months prior to the cancellation of the disposition of the instant case, and subsequently suspended construction by himself/herself after arranging the part under construction.

Although the Defendant reserved the order of suspension of construction until June 30, 2015 to remove earth and sand and to adjust the site of the project, the Plaintiff continued construction by installing access roads in the instant project site, including additional construction of concrete packaging work.

4) The Plaintiff invested considerable expenses in the course of implementing the instant project, and considerable portion of the instant project site is already damaged in the course of implementing the project, and it is anticipated that considerable expenses will be incurred to restore the forest to its original state. However, the instant project site constitutes mountainous district to be managed in the direction of creating forest resources and preserving and restoring the natural environment as seen earlier. However, the instant project site constitutes mountainous district to be managed in the direction of preserving and restoring the natural environment. However, since the instant project plan is contents of creating tourist farms, such as planting crops in 21,582 out of the instant project site, installing a site 7,400 meters of the site, camping site, road, and parking lot, if the project continues to be implemented in accordance with the instant approval disposition, it appears that the natural environment in Grade 1 area in the ecological and self-governing year is destroyed, and its impact on the natural environment expected to be damaged, and there is a risk of considerable damage to public interests, such

5) As above, the purport of the Environmental Impact Assessment Act requires a small-scale environmental impact assessment prior to the approval of the project plan and the procedures for such assessment. The project site in this case is a mountainous district to be managed in the direction to conserve and restore the natural environment as the first grade area of ecological and natural year, the Plaintiff continuously damaged the forest for several months despite the Defendant’s order of suspension of construction, and the Plaintiff’s impact on the natural environment, etc., it is deemed that the public interest needs to cancel the approval disposition in this case is much larger than the disadvantage suffered by the Plaintiff, such as infringement of the right to purchase, etc.

6) Therefore, among the grounds for the revocation of the instant disposition, the revocation disposition of the instant case is deemed lawful only on the grounds as above. Therefore, the Plaintiff’s assertion on the illegality of the remaining grounds for the revocation need not be examined further.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.