[1] The purpose of each subparagraph of Article 21(2) of the Act on the Promotion of Recycling of Construction Wastes that prescribes matters to be considered when determining the suitability of a construction waste disposal business plan submitted by a Mayor/Do Governor to a person who intends to operate a construction waste disposal business

[2] Whether an administrative agency’s determination of the suitability of a construction waste disposal business plan can be made by comprehensively examining the impact on the living environment and the natural environment when examining whether the maintenance of the environmental standards is difficult, as stipulated under Article 21(2)4 of the Construction Waste Recycling Promotion Act (affirmative)

[3] Whether the administrative agency’s broad discretion is recognized with respect to the determination of the suitability of the construction waste disposal business plan (affirmative); and, in such case, the method of examining whether the discretionary authority is deviates or abused; / Whether the administrative agency’s discretion determination on the circumstances and the requirements requiring prediction of the ripple effect that may arise in the future ought to be widely respected (affirmative in principle); and whether such determination should be taken into account when examining and determining whether the discretionary authority’s determination on the suitability of the construction waste disposal

[1] Article 21 of the Construction Waste Recycling Promotion Act and Article 12(2) of the Enforcement Rule of the Construction Waste Recycling Promotion Act (hereinafter “Rules”) provide for a license for a waste disposal business. A person who intends to conduct a construction waste disposal business shall submit a construction waste collection, transportation, or interim disposal plan (including a plan for installation of facilities, technical capability, and plan for securing a site for a place of business) along with a construction waste disposal business plan stating the outline of the business and the details of installation of facilities and equipment prior to filing an application for a license (Article 21(1) and Article 12(2) of the Rules) to the Mayor/Do Governor along with the construction waste disposal business plan stating the details of the construction waste disposal business plan (Article 21(1) and Article 12(2) of the Rules). Upon receipt of the documents, the Mayor/Do Governor shall review whether facilities, equipment, technical capability, etc. on the construction waste disposal business plan are “whether it is difficult to maintain environmental standards under Article 12(2) of the Framework Act on Environmental Policy,” and shall determine whether construction waste disposal business conforms to the procedure (2).

As can be seen, laws and regulations on construction waste disposal business do not stipulate the requirements for permission in a uniform and conclusive manner, but only stipulate the minimum scope and standards of diverse matters to be considered in the exercise of discretionary power over the determination and decision of whether the above requirements are appropriate rather than setting the requirements for issuing a simple administrative disposition. The purport of the review is to enhance the transparency and legality of administrative action concerning notification of the suitability of the waste disposal business plan, which has significant meaning, as a procedure for prior decision of permission.

[2] In examining whether an administrative agency’s determination of conformity with a construction waste disposal business plan is difficult to maintain the environmental standards, the impact on the living environment and the natural environment, such as whether it affects human health or the surrounding environment, may be equally examined to determine whether the plan is appropriate. This not only accords with the language and legislative purpose of the law, but also accords with the purport of the constitutional provisions and relevant statutes.

[3] Determination of conformity with a construction waste disposal business plan by an administrative agency (hereinafter “determination of conformity”) is required to make a decision on public interest, and a wide range of discretion is recognized by the administrative agency. Determination of deviation and abuse of discretionary power related to the determination of conformity should be made carefully by taking into account the natural environment of the relevant area, specific regional circumstances, such as the living environment of residents, and the legislative purport of various regulations on balance of rights and interests among interested parties with conflicting interests, and protection of environmental rights.

Therefore, the discretionary determination by an administrative agency on the requirements that need to be predicted about an uncertain situation and ripple effect that may arise in the future, such as the impact on the natural environment and the living environment, need to be widely respected unless there are circumstances such as where the content is considerably unreasonable or where the principle of equity or proportionality is clearly contrary to the principle of equity in comparison with the interests and values contrary thereto. Such matters should also be considered when examining and determining whether or not to deviate from or abuse discretion on the determination of suitability.

[1] Article 21(1), (2), and (3) of the Construction Waste Recycling Promotion Act, Article 12(2) of the Enforcement Rule of the Construction Waste Recycling Promotion Act / [2] Article 35(1) of the Constitution, Articles 1, 2, 4, 5, and 6 of the Framework Act on Environmental Policy, Article 217(1) of the Civil Act, Article 3 subparag. 1, 12(1), and 13 of the Framework Act on Environmental Policy / [3] Article 21(1) and (2) of the Construction Waste Recycling Promotion Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2011Du12283 Decided November 10, 201 (Gong2011Ha, 2572) / [3] Supreme Court Decision 2016Du55490 Decided March 15, 201 (Gong2017Sang, 778)

Yusung T&T Co., Ltd. (Law Firm U.S., Attorneys Park Ho-dae et al., Counsel for the defendant-appellant)

Head of Busan Metropolitan City Gun

Busan High Court Decision 2016Nu24274 decided May 12, 2017

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. A. Article 21 of the Construction Waste Recycling Promotion Act (hereinafter “Act”) and Article 12(2) of the Enforcement Rule of the Construction Waste Recycling Promotion Act (hereinafter “Rules”) provide for a license for a waste disposal business. A person who intends to conduct a construction waste disposal business shall submit a construction waste collection, transportation, or interim disposal plan (including a plan for installation of facilities, equipment, technical capability, and a plan for securing a site for a place of business) to the Mayor/Do Governor along with a construction waste disposal business plan stating the outline of the business before filing an application for a license (Article 21(1) and Article 12(2) of the Rules). A Mayor/Do Governor shall submit the relevant documents to the Mayor/Do Governor along with a construction waste disposal business plan stating the details of the construction waste disposal business and the details of the installation of facilities and equipment (Article 21(2)). A person who satisfies the standards prescribed in each subparagraph of Article 21(2) of the Framework Act on Environmental Policy, including whether facilities, equipment, technical capability, etc. on construction waste disposal, is difficult to maintain environmental standards under Article 212(2).

As can be seen, laws and regulations on construction waste disposal business do not stipulate the requirements for permission in a uniform and conclusive manner, and only establish the minimum standard. Review matters under each subparagraph of Article 21(2) of the Act, rather than setting the requirements for the issuance of a simple administrative disposition, may be deemed to be more specific and clear setting of the scope and standards of diverse matters to be considered in the exercise of discretion on the determination and decision of whether the said requirements are appropriate. The purport is to enhance transparency and legality of administrative action regarding notification of the suitability of a waste disposal business plan, which has significant meaning, as a procedure for prior determination of a construction waste disposal business license (see, e.g., Supreme Court Decision 201Du1283, Nov. 10, 201).

B. The Constitution provides that “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)), and stipulates environmental rights as fundamental rights under the Constitution, and at the same time imposes an obligation to endeavor to preserve the environment on the State and the citizens. Under the provisions of the Constitution on Environmental Policy, the Framework Act on Environmental Policy specifically sets out the rights and obligations of the citizens who shall endeavor to preserve the environment and the obligations of the State, local governments, business entities, and citizens (Articles 1, 4, 5, and 6), and the State, local governments, business entities, and citizens shall first consider environmental preservation when they perform any act using the environment (Article 2).

Article 217(1) of the Civil Act provides that measures such as prohibiting the use of adjoining land by smoke, heat, liquid, liquid, sound, vibration, and others similar thereto shall be taken to prevent the use of adjoining land or causing any harm to the neighboring resident’s living (Article 217(1) of the Civil Act). The subject of direct regulation under this provision is a civil legal relationship between neighboring land owners, etc., but it should not cause or encourage disputes by hindering the use of adjoining land or causing any damage to the neighboring resident by taking a beneficial discretionary measure by an administrative agency on facilities or projects that are likely to infringe on the surrounding environment. Accordingly, the administrative agency may consider whether the installer of facilities or the business operator can comply with the said provision in the course of exercising its discretionary power.

Article 12(1) of the Framework Act on Environmental Policy, cited in Article 21(2) of the Act, clearly declares that the State is obligated to establish environmental standards in consideration of the impact on the ecosystem or human health and to maintain its propriety as a result of changes in environmental conditions. Furthermore, Article 13 of the Framework Act on Environmental Policy stipulates matters to be considered in order to maintain environmental standards as the title of “maintenance of environmental standards” (Article 13), such as prevention of environmental deterioration and elimination of factors thereof (Article 1), restitution of environmental pollution areas (Article 2), prevention of environmental pollution and environmental damage due to the use of new science and technology (Article 3 subparag. 3), and appropriate allocation of funds to prevent environmental pollution (Article 4). Here, “environmental” includes both “living environment” and “natural environment” (Article 3 subparag. 1 of the Framework Act on Environmental Policy).

When examining whether an administrative agency has difficulty in maintaining environmental standards for determining whether it is appropriate, it is reasonable to view that it is appropriate to determine whether it is appropriate by comprehensively examining the impact on the living environment and the natural environment, such as whether it affects human health or the surrounding environment. This not only accords with the language and legislative purpose of the Act, but also accords with the purport of the provisions of the Constitution and the relevant statutes.

C. Determination of conformity is necessary to make a determination on the public interest and the administrative agency’s broad discretion is recognized. Determination of conformity should be made carefully by taking into account the specific regional circumstances, such as the natural environment in the relevant region and the living environment of residents, and the legislative intent of various regulations on the balance of rights and interests among interested parties and the protection of environmental rights.

Therefore, the discretionary determination by an administrative agency on the requirements that need to be predicted about the current situation and ripple effect that may arise in the future, such as the impact on the natural environment and living environment, need to be widely respected unless there are circumstances such as where the content is considerably unreasonable or where the principle of equity or proportionality is clearly contrary to the principle of equity in comparison with the interests and values contrary thereto. Such matters ought to be comprehensively considered in examining and determining whether to deviate from or abuse of discretion on the determination of appropriateness (see, e.g., Supreme Court Decision 2016Du55490, Mar. 15, 2017).

2. According to the reasoning of the lower judgment and the first instance judgment partially admitted by the lower court, the following facts are revealed.

A. The Plaintiff submitted a business plan to the Defendant in accordance with Article 21(1) of the Act to conduct an interim disposal business of construction waste in the prospective site of the instant project.

B. The Defendant, on the grounds of five reasons, issued a notice of non-conformity with the business plan (hereinafter “instant disposition”), and the grounds for the disposition include “the surrounding living environment is likely to be harmed by the residents’ tolerance level, and there is a concern for dispute among the residents arising therefrom (hereinafter “the grounds for disposition in this case”).

C. The east, north, and west of the prospective project site of this case are surrounded by mountain, and there is a dunes in the south of about 100 meters south. The long river constitutes “Good-Quality” the standard rating of the river living environment under the Framework Act on Environmental Policy.

D. At a place 400 meters away from the east of the instant project site, there is an apartment complex of about 17 units of detached houses and about 788 units of apartment houses in a place 800 meters away from the west. There is about 700 meters away from the west, and there is about 30 households living in the west and west, where approximately 800 meters away from the west. There is a rubber village in which there is a general industrial complex in the vicinity of the said village, and about 46 households live in the northwest and northwest.

E. According to the business plan submitted by the Plaintiff, the Plaintiff is scheduled to establish a place of business equipped with breaking and crushing facilities (1,200t/1 day), facilities for separation and screening (1,200t/1 day), storage facilities, measurement facilities, dump trucks, and dump trucks on the instant land planned for the instant project, the scale of approximately 5,440 square meters. The Plaintiff transported construction waste, such as waste concrete, waste asphalt, waste bricks, waste bricks, and dump trucks discharged from the site of construction and civil engineering works with at least 15t dump trucks, after undergoing crushing and screening process, transported construction waste, such as waste concrete discharged from the site of construction and civil engineering works, or made it in the form of re-resource or soil sand used as dump and banking, and the remainder of waste synthetic resin, rocks, waste rocks, waste rocks, waste rocks, etc. are to be buried or incinerated, and the daily expected treatment volume is 1,2

3. The lower court determined that the instant disposition was a deviation or abuse of discretionary authority, on the grounds that ① the instant disposition was recognized, on the grounds that the instant disposition was found to have been recognized, (i) the instant disposition was found to have far away from 700 to 800 meters away from the neighboring village or (ii) the instant disposition did not present an objective standard

4. However, the lower court’s determination is difficult to accept for the following reasons.

A. Since there exists a ceiling on the grade of “Good” in a place less than 100 meters south from the land scheduled for the instant project, and to that end, there is room to view that the separation distance and the details and scale of the construction waste disposal facilities that the Plaintiff intends to install in the land scheduled for the instant project, and the remaining wastes that the Plaintiff is unable to scrap, crush, or recycle are likely to be difficult to maintain environmental standards due to the deterioration of the water quality of the said river due to scattering dust or other pollutants, or to have an adverse impact on the residents’ living environment exceeding the limit of participation in the neighboring residents.

B. Considering the damage caused by environmental pollutants that may be generated from the construction waste disposal business in the situation where environmental pollutants are discharged in the nearest area of the instant planned project site, there is room to deem that the damage caused by nearby residents exceeds the bounds of reference, and the possibility of disputes between residents, such as civil petitions arising therefrom, cannot be disregarded.

C. Since the lower court may take punitive administrative measures to prevent environmental damage at the operating stage of a project, such as where construction waste in the future causes or is likely to cause serious harm to the living environment of neighboring residents, it is unreasonable to notify the project plan inappropriate solely on the ground of a remote possibility of environmental damage and the source of carbon of neighboring residents. However, such ex post facto regulations are not sufficient. If the environment is contaminated, there are many cases where it is almost impossible to restore the environment to the original state so that it is difficult to recover the damage. Accordingly, it is important to prevent it in advance.

D. Examining the aforementioned circumstances in light of the legal principles as seen earlier, including the relevant statutes and legal principles, the Constitution on environmental rights, and the relevant laws, and the scope and extent of the administrative authority’s discretion on the determination of suitability, it is difficult to readily conclude that there was an error of deviation from and abuse of discretion, such as the Defendant’s violation of the principle of proportionality, which included the concerns about infringement of surrounding environment beyond the bounds of reference, or the concerns arising therefrom among the residents.

E. Nevertheless, the lower court erred by misapprehending the legal doctrine on deviation from and abuse of discretionary power with regard to the disposition of non-conformity notification of a construction waste disposal business plan, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

5. Without proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)