U&S Co., Ltd. (Law Firm U&S, Attorneys White-tae et al., Counsel for the defendant-appellant)

Head of Busan Metropolitan City Gun

April 7, 2017

Busan District Court Decision 2016Guhap23012 Decided December 8, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of non-conformity notification to the Plaintiff on July 7, 2016 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The reasoning for this Court’s explanation is as follows: (a) the reasoning for the first instance judgment is the same as that for the part concerning “1. Ground for Disposition”; and (b) such reasoning is cited pursuant to Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① There is no concern about infringement of property rights by receiving a written consent from co-owners of the land in the planned area of the instant project. ② Even if the land category of the planned area of the instant project is forest and natural green area, it is not possible to take a measure of refusal merely because it is sufficiently possible to alter the purpose of use in accordance with the relevant statutes and it is unclear whether the intended area of the instant project can be altered. ③ As access roads to the planned area of the instant project are installed with safety prevention level and are expected to be constructed in the vicinity, the Plaintiff is expected to secure a speed of increase and decrease, the risk of accidents seems to be resolved most. ④ The ground for disposal, such as the concern about the pollution of neighboring rivers proposed by the Defendant, and the impact on the surrounding living environment, is based on the Defendant’s vague trend without objective and reasonable grounds. The disposal of the instant planned area of the instant project is likely to be sufficiently prevented from taking into account the following factors:

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) The land scheduled for the instant project is a forest land, the category of which falls under the natural green area under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and is a site that has been constructed as a first class neighborhood living facilities (retailing stores).

2) The project site of this case is located in approximately 100 meters south of the project site of this case. The project site of this case is located in the east of 17th square meters of the river living environment standard level under the Framework Act on Environmental Policy and the Enforcement Decree of the same Act. The project site of this case is located in the east of about 400 meters of the project site of this case, and the apartment complex of about 788 households is located in the east of about 800 meters of the project site of this case, and about 30 households are located in the west of 100 meters of the project site of this case, and about 700 meters of the west-west and west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-west-si, each of which is located in each of the above villages, and about 1 km-west-west-west-

3) The road abutting on the instant planned project area is the only two-lane (lane) road located south and south, and there is delivery between the said road and the planned project area, and depending on delivery, utility poles and street lamps are installed.

4) The main facilities and equipment of the construction waste disposal business planned by the Plaintiff are crushing and crushing facilities, separate and sorting facilities, storage facilities, measurement facilities, dump trucks, etc. The Plaintiff produces aggregate, etc. after transporting construction waste discharged from the construction and civil construction site into at least 15t of dump trucks, and produces aggregate, etc. through crushing and screening process, and the remainder of waste is a plan for reclamation and incineration. The expected daily disposal volume is 1,200 tons.

5) The Plaintiff is scheduled to install a 10-meter fire-proof wall at the entire storage facilities to minimize noise and dust, and to prevent the occurrence of dust generated in the process of crushing by means of water-proof facilities, automatic sponsing facilities, air-proof covers, etc., waste upper and lower time, vehicle access time, and night time. The Plaintiff is planned to pack the entire floor of the area scheduled for the instant project with concrete packaging the entire floor of the area scheduled for the instant project into soil even in Ycheoncheon-si.

6) Meanwhile, Green Aggregate submitted a construction waste disposal business plan stating that it will operate a construction waste disposal business (construction waste disposal business) in the instant scheduled area for business, and received an appropriate notification from the Defendant on October 29, 2009. The Green Aggregate requested an extension of the period to the Defendant because it was unable to file an application for permission within two years from the date of receipt of the appropriate notification, but was notified by the Defendant that the extension was not made, and the Defendant filed an administrative appeal on December 20, 201 against the notice of the said extension payment, and subsequently withdrawn the administrative appeal on February 9, 2012.

7) The Nonparty owned 14,391/23,745 shares in Busan-gun, Busan-gun, where the instant project site is located, and 9,354/23,745 shares in Osung Building Co., Ltd. (hereinafter “Ocal Building”). The Nonparty, around May 2016, prepared a written consent for the use of the site that each of the Plaintiff did not object to the use of the instant project site at around that time.

8) On June 4, 2016, the Nonparty: (a) obtained permission to occupy and use the entrance road for the purpose of occupying and using the entrance road for the residential facilities in the Busan metropolitan area ( Address 1 omitted); but (b) filed an application for the revocation of permission to occupy and use the said road around August 2016.

[Reasons for Recognition] The above evidence, Gap evidence, evidence Nos. 5, 8 through 10, 12 through 14, 15, Eul evidence Nos. 2, 5, 8, 9, 14, 16, 24, 26, and 27, the records and images of evidence Nos. 5, 8 through 10, 12 through 15, and the purport of the whole pleadings

D. Determination

1) Examining the structure or language and text of the statutes related to permission for waste treatment business, these regulations provide for minimum requirements to obtain permission for waste treatment business, but, in such a case, the determination of standards necessary to notify the appropriateness of a business plan is also subject to the discretion of an administrative agency, and thus, an administrative agency’s intent should be respected as far as possible, unless there are special circumstances to deem that the established standards are objectively unreasonable or unreasonable. However, if the established standards are objectively unreasonable or unreasonable, or if a business plan is rejected without a specific and reasonable reason, the administrative agency’s intent is not respected solely on the ground that it falls under the discretion of the administrative agency, but the disposition in such a case is unlawful as a measure abusing discretion or deviating from the scope (see, e.g., Supreme Court Decision 2004Du96161, May 28, 2004).

2) In light of the above legal principles, the instant disposition is reasonable to deem that the criteria established as the grounds for disposition are objectively reasonable or unreasonable, and without setting such criteria clearly, and that the instant disposition was conducted without presenting specific and reasonable grounds, by abusing or abusing discretion, and the Plaintiff’s assertion pointing this out is reasonable.

① The Plaintiff obtained the consent for land use from the Nonparty, a joint owner of the land in the instant land planned for the instant project, and it is difficult to deem that the instant land owner’s exercise of property rights is enormous impediment.

② In order to operate a construction waste interim disposal business in the instant planned area, which is a natural green area, the purpose of the construction waste disposal business needs to be changed from Class I neighborhood living facilities (retailing stores) to resources circulation-related facilities. To this end, the requirements for permission for development activities are required pursuant to the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”). However, when the Plaintiff applies for the said permission, the determination of permission for development activities ought to be conducted in a separate procedure from the instant disposal. The National Land Planning and Utilization Act related to the said permission and the Construction Waste Recycling Promotion Act (hereinafter “Construction Waste Act”) stipulate different purpose and requirements, respectively. However, the Construction Waste Act does not exclusively apply in preference to the National Land Planning and Utilization Act or does not invoke the provisions for permission under the National Land Planning and Utilization Act, nor does it absolutely prohibit the installation of waste disposal facilities in the National Land Planning Act.

③ According to the Plaintiff’s business plan, it is predicted that a vehicle with a daily treatment capacity of 1,200 tons is to be operated at least 60 times a day, but the Defendant determined that there is a high risk of safety accidents only by the prediction of the vehicle’s operating volume according to the Plaintiff’s business plan without specific evidence, such as the daily traffic volume per day and the rate of accidents, connected to the planned entry route of the instant project.

④ On the access road to the scheduled project area of this case, the safety prevention threshold is installed, and the plaintiff is scheduled to separately use the entrance and exit exit so that the plaintiff can use it, and the increase or decrease speed is scheduled to install the access road (the fact-finding conducted by the court of the first instance on the plane captain's office may increase or decrease the street lights and telegraph poles by taking procedures, such as permission for the branch office of the Korean Electric Captain, etc., under Article 91 of the Road Act, and if the street lights and telegraph poles are relocated, it is possible to install the increased or decreased lane, and the application for permission for the occupation and use of the road for the

⑤ In the event that the Plaintiff installs and operates a construction waste interim disposal business facility for the instant business, it is anticipated that certain degree of dust dust, noise, vibration, etc. will occur. However, the Plaintiff has prepared measures such as dustproof walls with not less than ten meters, water-flowing facilities to prevent the generation of dust, dustproof cover for the prevention of the generation of dust, air-proof cover for collection and transport vehicles, covering of collected and transported vehicles, and concrete floor packaging.

6. Although the Plaintiff failed to prepare a plan for installing a roof cover opening facility for the reason that he/she does not cut wastes from storage facilities, in cases of roof cover opening facilities, it falls under construction waste storage facilities where waste cutting is necessary (Article 12 (4) 2 (e) of the Enforcement Rule of the Construction Wastes Act). If the above facilities are necessary, the Defendant seems to have made an appropriate notification on the condition that he/she installs a roof cover opening facilities.

(7) In order to make improper notification on the grounds of excessive competition among enterprises, a thorough analysis of the quantity of domestic waste generated in the business territory and the trends in change, whether the quantity is anticipated to increase at the time of permission, appropriate volume of waste disposal by business entity, capacity of an existing agency and a new company to dispose of wastes, the rate of operation of human resources and equipment possessed by an existing agency, etc., and shall present objective and reasonable standards concerning the method and procedure for selecting new enterprises, etc. (see Supreme Court Decision 2004Du961, May 28, 2004; Supreme Court Decision 2011Du12283, Nov. 10, 201). The defendant merely presents only the quantity related to the quantity of domestic waste generated in Busan and Gun in 2015, the quantity of domestic waste generated in Busan and Gun in 2016, Busan and Gun in the captain's existing disposal capacity, etc., and there is no evidence to acknowledge that detailed and detailed examination of such circumstances has been conducted.

8) The east, north, and west of the prospective project site of this case are surrounded by mountain, and the separation distance from the neighboring village is at least 700-800 meters far away, and the place of business generating environmental pollutants is not found in the vicinity of the prospective project site of this case, and it is difficult to view that the operation of the project of this case directly affects the residential or living environment of neighboring residents.

9) In addition to the circumstance that a residential area is located and a river flows in the vicinity of the instant planned area, the Defendant did not present an objective standard related to the degree of scattering dust, noise, vibration, etc. caused by the instant planned area, the living environment and property damage of neighboring residents, the possibility of pollution of water for living, pollution of nearby rivers caused by the discharge of pollutants, etc. (i.e., rubber route and its site are located between the instant planned area and the planned area of the instant planned area of the project, and even if considering the slope of the instant planned area of the project, there is no doubt that the operation of the instant planned area will immediately affect the water quality of the Yancheon, and no objective standard or material is presented).

10. The Ministry of Environment's guidelines for permission for waste disposal business, which is the established rules of the Ministry of Environment, also stipulate that the return or non-permission notice is not possible on the grounds of civil petitions,

(11) Article 28(1) of the Wastes Control Act provides that construction wastes in custody of a construction waste disposal business operator may be subject to the disposition of business suspension or a penalty surcharge in lieu of the disposition of business suspension in the event that a serious hazard to the living environment of neighboring residents occurs or is likely to occur. In the instant case, it is unreasonable to prohibit the instant business itself on the grounds that the instant construction waste disposal business operator could only take punitive administrative measures to prevent environmental damage through the foregoing management at the operating stage of the instant business, even if it

(12) The business contents of the Plaintiff’s instant construction project to dispose of and recycle construction waste generated from various construction sites, etc. are in line with the legislative purposes of the Construction Waste Act enacted to facilitate the environment-friendly disposal of construction waste generated from construction works, etc. and facilitate their recycling, and there is a need to systematically encourage positive effects, such as resource saving and waste disposal costs, in social and economic aspects.

3) However, the Plaintiff alleged that the instant disposition was made only against the principle of equality, unlike the relevant finite. However, the Plaintiff’s receipt of a notice of conformity with the construction waste disposal business in the instant prospective area for the instant project was seven years before the instant disposition was made in 2009, and the law applied at the time of receiving the notice of conformity with the finite is also amended, and the standard of determining conformity is not the same as the Plaintiff’s case. Accordingly, the Plaintiff’s above assertion related to the violation of the principle of equality is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked

[Attachment]

Judges Kim Jong-cheon (Presiding Judge) and the Republic of Korea