2013Guhap1339 Action Demanding revocation of Disposition of Non-compliant Notice of Construction Waste Disposal Plan

A

YOcheon-gun

April 4, 2014

April 25, 2014

1. Order 1. On February 21, 2013, the Defendant revoked the disposition of non-conformity of the construction waste disposal business plan against the Plaintiff.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On January 21, 2013, the Plaintiff submitted to the Defendant a construction waste disposal business plan with the content of crushing, screening, and recycling of aggregate and concrete construction waste collected and transported at the construction site (hereinafter “instant application plan”).

B. On February 21, 2013, the Defendant rendered a nonconformity notification disposition with respect to the Plaintiff’s instant business plan (hereinafter “instant disposition”) on the following grounds.

○ Of the instant application site, the facilities related to construction waste disposal business, which are irrelevant to agriculture in the agricultural promotion area prescribed in the Farmland Act, fall under a facility that is prohibited from being installed in the agriculture promotion area. The facilities related to construction waste disposal business are limited to facilities that are prohibited from being installed in the agricultural promotion area.

○ The instant land shall not be used or enjoyed pursuant to Article 7 of the State Property Act.

[In the absence of dispute over the basis of recognition, entry in Gap evidence 1 and 3 (including the number of branches; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

Article 21 of the Construction Waste Recycling Promotion Act (hereinafter referred to as the "Construction Waste Recycling Promotion Act") provides that a person who intends to operate a construction waste disposal business shall submit a construction waste disposal plan as prescribed by Ordinance of the Ministry of Environment to the competent Mayor/Do Governor, and the competent Mayor/Do Governor shall review the submitted plan and notify whether it is appropriate, and Article 12(1) [Attachment 2] of the Enforcement Rule of the same Act provides for the criteria for the suitability review of the business plan even though he/she did not delegate the plan to any subordinate statute. Thus, it is invalid as a legal order issued without delegation by a superior statute, and the instant disposition is unlawful because it is based on the invalid Enforcement Rule.

2) According to the proviso to Article 32 of the Farmland Act, it is possible to build a road on the instant land designated as an agricultural promotion area. While the said land is already used as the current state road 1), it is planned to use the instant land as an access road to construction waste disposal business establishment under the instant business plan, and it does not affect the current status of its use. Although the instant land is a State property, the Plaintiff was able to use the instant land with the permission from the State for use of state property, but the Defendant made an inappropriate notification on the instant business plan, which is unlawful by abusing or abusing discretion.

B. Relevant statutes

The statutes related to the instant case shall be as shown in the attached Form.

C. Determination

1) First, we examine whether the instant disposition is unlawful as it is based on Article 12(1) of the Enforcement Rule of the Construction Waste Act, which is null and void, as alleged by the Plaintiff.

Article 21 (1) of the Construction Waste Act provides that a person who intends to operate a construction waste disposal business shall submit a construction waste disposal business plan to the Mayor/Do Governor as prescribed by Ordinance of the Ministry of Environment, and delegates its criteria to subordinate statutes. Accordingly, Article 12 (1) of the Enforcement Rule of the Construction Waste Act provides that "the criteria for permission for construction waste collection and transportation business and interim disposal business under Article 21 (1) of the Act are as specified in attached Table 2." [Attachment 2] of the Enforcement Rule provides for the qualification requirements, etc. for interim disposal business. Therefore, the above Enforcement Rule is effective as embodying the criteria for permission for interim disposal business in accordance with delegation by superior statutes. In addition, the grounds for the instant disposition made by the Defendant are not based on the Farmland Act and the State Property Act, as seen earlier, Article 12 (1) of the Enforcement Rule of the Construction Waste Act is not based on the Farmland Act and the State Property Act, and thus

2) Next, we examine whether the instant disposition is unlawful by deviating from or abusing discretionary power.

A) Examining the structure or language and text of the statutes related to permission for waste treatment business, these regulations provide for the minimum requirements to obtain permission for waste treatment business, but they have left room for discretion as to whether the business is appropriate because they failed to take the form prescribed by uniformly determining whether the business plan is appropriate, and in such a case, setting the standards necessary to notify the appropriateness of the business plan also belongs to the administrative agency’s discretion. Thus, barring any special circumstance where the established standards are objectively unreasonable or unreasonable, the administrative agency’s intent should be respected as far as possible.

However, it is not necessary to respect the administrative agency's intent solely on the ground that the criteria established by the administrative agency in notifying the appropriateness of the administrative agency is objectively unreasonable or unreasonable, or that the administrative agency's improper notification of the project plan or the return of the project plan without establishing such criteria, without establishing such criteria, is a matter belonging to the administrative agency's discretion. In such a case, the disposition in question is unlawful as a measure abusing discretion or deviating from its scope (see Supreme Court Decision 2004Du961, May 28, 2004, etc.).B) The following facts are either a dispute between the parties, or can be acknowledged by adding the overall purport of oral arguments to the statements and images as stated in the evidence as referred to in subparagraphs 3, 5 through 8, 12, and 13, and Nos. 1 through 8.

① The project size, specific use area, owner, and use purpose of the instant application site are as follows, and most of the land in this case and the land, excluding a square of the 160m square of the Fridge, Gangwon-gun, Gangwon-do, is designated as a planned management area pursuant to the National Land Planning and Utilization Act. Meanwhile, the part of ditches among the land in this case constitutes agricultural infrastructure pursuant to the Rearrangement of Agricultural and Fishing Villages Act.

② The Plaintiff purchased land from around June 30, 2012 to July 10, 2012, and owned part of the instant application site as indicated in the above table. Around August 6, 2012, the Plaintiff obtained the consent of M to the use of the instant land. At the time of submitting the instant business plan around January 21, 2013, the Plaintiff filed an application for permission to use the ditches for purposes other than those of agricultural production infrastructure pursuant to Article 23 of the Rearrangement of Agricultural and Fishing Villages Act, with respect to the land owned by the remainder of the State, pursuant to Article 30(1) of the State Property Act.

③ The area of the instant land is 244 m2/100 of the entire project site. The said land is the only access road to the land indicated in the column “project site” as the land that leads to 160m, 160m, 236m, 273m2 before J, 273m2, 5m2 before K, and 5m of L forest and fields, where construction waste disposal facilities are to be installed.

④ The instant land is currently used as a passage for residents, and according to the instant project plan, the Plaintiff is a plan to use the instant land as an access road for vehicles transporting construction waste by packaging it with concrete.

⑤ In order to facilitate the drainage of ditches within the instant land and prevent pollution, the Plaintiff opened a waterway at the underground, and installed a floodgate at the entrance of an access road to maintain the existing farming waterway as it is. In order to reduce noise and scattering dust generated from construction waste disposal facilities, the Plaintiff installed a spact installed at the entrance of the relevant place of business at the entrance of the relevant place of business, and installed a dustproof fence at the boundary area of the place of business. The wastewater generated within the place of business was recycled as water for the place of business after purification.

C) The following circumstances revealed by the above facts, i.e., (i) most of the instant application site is possible to conduct construction waste disposal business in accordance with the instant project plan as a planned management area with limited use and development in view of the area expected to be integrated into an urban area or natural environment; (ii) the instant land is currently being used as the only access road to the Plaintiff’s business site for the passage of the residents; and (iii) the instant land, which is an agricultural promotion area, may be constructed on the instant land under Article 32(1) proviso 7 of the Farmland Act. According to the instant project plan, the instant land is scheduled to be used as a access road to a construction waste disposal facility, and thus,

The above access road, which is a road, appears to be possible to install the above access road, and ④ The part of the ditch part among the land which is a agricultural infrastructure, was permitted to use for the purpose other than the purpose under Article 23 of the Rearrangement of Agricultural and Fishing Villages Act, and the land of this case, which is a State property, was permitted to use under Article 30 (1) of the State Property Act. In fact, the plaintiff applied for permission to use the agricultural infrastructure and applied for permission to use State property for the purpose other than the purpose of the submission of the project plan of this case. However, the defendant did not conduct an examination on the above, and the disposition of this case was rendered on the ground that the land of this case cannot be used solely because it constitutes an agricultural promotion area and State property without any examination. In full view of the above, the disposition of this case constitutes a case where the standard established for notifying the appropriateness of the project plan of this case

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

The presiding judge's lecture number

Judges Lee Jin-hee

Judges Lee Jin-jin

1) A road not indicated in the cadastral map but is de facto used by residents as a passage for a long time.

2) The wheels with the difference of the wheels installed in the metal support unit in a way that connects the wheels with the other wheels and then responss the other wheels with the power or the power of the vehicle.

(1) The term "facilities to remove soil, etc." means facilities to remove soil, etc.