[1] Whether a housing construction project that involves site creation constitutes an environmental impact assessment subject to the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (affirmative)

[2] Whether the project subject to environmental impact assessment should be determined by comprehensively considering the same type of project implemented within the same impact zone as a single project (affirmative)

[3] Whether a resident has standing to sue to seek cancellation of the approval of the housing construction project plan and the disposition of approval in the area subject to the environmental impact assessment expected to cause a direct and serious environmental damage due to the execution of the housing construction project that involves more than a certain scale

[4] The case holding that there is an urgent need to suspend the execution of the housing construction project plan and the approval of the housing construction project plan for creating a large apartment complex

[1] According to Article 2 subparagraph 1 of the Housing Act, a house refers to a building and its appurtenant land, and the project that requires approval of a project plan under Article 16 of the Housing Act separates "housing Construction Project" and "Housing Site Development Project". However, according to Article 15 (5) of the Enforcement Decree of the Housing Act, a housing construction project includes "a case where a housing construction project intends to implement a housing site preparation project" as well as "a case where a housing construction project is intended to implement a housing construction project" and in such a case requires submission of a housing site preparation design plan at the time of application for approval of a housing construction project plan. In light of the fact that a housing construction project accompanied with housing site creation has the nature as a housing site preparation project, it constitutes an environmental impact assessment subject to the attached Table 1]

[2] In light of the legislative purport of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc. and the language and text of Article 4.2(a) of the Enforcement Decree of the same Act, without requiring the same business operator to implement a project as stated in Article 4.2(a) of the same Act, it is interpreted that for the same kind of business implemented within the same impact zone, regardless of whether the business operator is the same, the total scale of each business should be determined by adding up the scale of each business.

[3] In full view of the provisions of the Housing Act, the Housing Act, the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc., which are the basis of the relevant laws and regulations, and the relevant provisions of the Enforcement Decree of the same Act, it is judged that the purpose of these Acts and subordinate statutes is to protect the individual benefits that can live in a pleasant environment without being subject to environmental infringement exceeding the limit of admission and being compared to the residents in the area subject to the environmental impact assessment that is expected to cause direct and significant environmental damage due to the implementation of the housing construction project that involves more than a certain scale of the housing site creation. Therefore, the above environmental benefits held by the residents in relation to the housing construction project plan, approval disposition, etc. are the direct and specific benefits that are individually given to the individual residents, and it is actually presumed that there is a risk of infringement or infringement

[4] The case holding that, in light of the nature and scale of the housing construction project that creates a large apartment complex, if the housing construction project is being carried out for a long time due to the external effects of the administrative disposition, it is difficult to recover it according to the original condition even if the approval disposition of the housing construction project plan is revoked later, and such damage is much more important and nearly permanent than the damage caused by the discontinuance of the project due to the suspension of execution of the administrative disposition, there is an urgent need

[1] Article 2 subparag. 1 and Article 16 of the Housing Act; Article 15(5) of the Enforcement Decree of the Housing Act; Article 4(3) of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc.; Article 2(3) [Attachment Table 1] subparag. 1. A. (5) of the Enforcement Decree of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. / [2] Articles 1 and 4(3) of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc.; Article 2(3) [Attachment Table 1] subparag. 1 and 16 of the Housing Act; Article 15(5) of the Enforcement Decree of the Housing Act; Article 4(3) of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc.; Article 2(3) [Attachment Table 1] subparag. 4(2) of the Enforcement Decree of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. / [3]

Applicant 1 and 518 others (Attorney Kim Jong-il, Counsel for the plaintiff-appellant)

port of destination

Seoul High Court Decision 200Na14488 delivered on August 1, 2001

Suwon District Court Order 2006Ka226 dated June 19, 2006

1. Revocation of a decision of the first instance;

2. The approval disposition of each housing construction project plan by the respondent against supplementary intervenors (attached Form 2) shall be suspended until the judgment of the Suwon District Court 2006Guhap2719 is rendered.

3. Of the total cost of the application, the part resulting from participation shall be borne by the Intervenor, and the remainder shall be borne by the respondent.

The same shall apply to the order.

1. Basic facts

The following facts shall not be disputed between the parties, or shall be substantiated by the record:

A. Pursuant to Article 16 of the Housing Act, the respondent approved each housing construction project plan, such as [Attachment 2] written in the disposal list, to supplementary intervenors (hereinafter “instant housing construction project” and “instant disposition”). All of the instant project areas are located on the North slope of Dolsan, Dolsan located in ○○-gu, △△△-dong.

B. In addition, the respondent has approved the housing construction project plan in the area adjacent to the instant project site even before the instant disposition is made as follows, and the current housing construction project plan approval procedure is in progress.

(2) On November 22, 2005, the number of 59 parcels, 43, 231, 50 GY 25, 175, 175, 175, and 18 parcels, and the number of 18 parcels, 35,210, 476, 476, 475, and 475, 175, 175, and 175, and 18 parcels, other than 59 parcels, on November 22, 2005 (number 3 omitted), including 59 parcels, 43,2310, 150 GY 250, 250, and 265, GY 475, 175, and 185, and 1885, GM 25, and 185, and 18,000 parcels, and 59 parcels, 30,000 G 15,05.

C. The Intervenors, the △△△ City Development Committee, which was the project site of the instant case, agreed to jointly implement the urban infrastructure projects in the △△△ District, which was the project site of the instant case. The contents of the instant agreement were reflected in the instant disposition as the project approval condition.

D. On the other hand, the applicants are residents or owners of the apartment (title 1 omitted) on the ground (title 6 omitted) of ○○-gu △△-dong △△-dong (name 6 omitted) and the apartment (title 7 omitted) on the ground (title 2 omitted) above, which is approximately 100 meters away from the north of the instant project area. The instant project site and the applicants have roads on the degree of 4 to 6 lanes, which are the site of carboncheon, and there are no other special facilities or obstacles.

2. Legal interest of the applicants regarding the disposition of this case

A. Summary of the parties' assertion

The applicants did not undergo an environmental impact assessment even though the instant project is subject to an environmental impact assessment under the Environmental Impact Assessment Act on Environment, Traffic, Disasters, etc. (hereinafter “Environmental Impact Assessment Act”), and the respondent did the instant disposition that approves the project plan. Thus, the applicants asserted that the disposition should be revoked by unlawful means.

In this regard, the respondent asserts that the project of this case is not a subject of environmental impact assessment, and the applicant is not the other party to the disposition of this case, and there is no legal interest in seeking its revocation.

(b) Markets:

(1) Whether the project is subject to environmental impact assessment

(A) Relevant statutes

[Attachment 3] The entry in the relevant statutes is as follows.

(B) Whether the instant project constitutes a housing site preparation project

According to Article 4(3) of the Environmental Impact Assessment Act, Article 2(3) of the Enforcement Decree of the same Act, [Attachment 1] 1. A. (5) of the Enforcement Decree of the same Act, where the area of a housing site preparation project under Article 16 of the Housing Act is not less than 30,000 square meters, an environmental impact assessment shall be conducted prior to the approval of the project plan. Therefore, this case’s project is examined as to whether it

According to Article 2 subparagraph 1 of the Housing Act, a house means a building and its appurtenant land, and the project that requires approval of a project plan under Article 16 of the Housing Act separates "housing construction project" and "housing site preparation project". However, according to Article 15 (5) of the Enforcement Decree of the Housing Act, a housing construction project includes "a case where a housing construction project intends to execute a housing site preparation project necessary for housing construction" and "a case where a housing construction project is intended to execute a housing site preparation project". In such a case, when applying for approval of a housing construction project, a housing construction project accompanied with housing site creation has the nature as a housing site preparation project (if such interpretation is not interpreted as a case, only a housing site preparation project is implemented separately, but it is unreasonable to avoid an environmental impact assessment in the case where a housing construction project including housing site preparation project is implemented

However, according to the whole purport of the record and examination of this case, since a significant portion of the project area of this case is not yet a site, it is recognized that the supplementary intervenor obtained approval of the project plan and obtained permission for the diversion of farmland necessary for the creation of a site. Therefore, the project of this case is a housing construction project, but also has the nature as a housing site development project, and it is a project subject to environmental impact assessment stipulated in the Enforcement Decree

(C) Whether it constitutes the scale subject to environmental impact assessment

Furthermore, we examine whether the area of the instant business is at least 300,000 square meters.

According to Article 4.2 of the Enforcement Decree of the Environmental Impact Assessment Act [Attachment Table 1] 4.2 of the non-fixed Ordinance of the Ministry of Environment, “If a project falls under a project subject to assessment at the time of approval of the project, but is below the scale subject to assessment, and the scale of the project is the sum of the scale subject to assessment and new approval in the same impact zone.”

① The purpose of the Environmental Impact Assessment Act is to promote the pleasant and safe life of citizens by assessing and reviewing the impact of a project that has a big impact on the environment, etc. in advance and by ensuring a sound and sustainable development (Article 1 of the Act). ② The Enforcement Decree of the Environmental Impact Assessment Act provides that a project that has a big impact on the environment, living environment, etc. shall undergo an environmental impact assessment for a project that has a big impact on the environment, etc. since it exceeds a certain scale among the projects prescribed in the Environmental Impact Assessment Act. However, if the same kind of project is conducted simultaneously or at different times within the same impact zone, even if the scale subject to assessment is short of the scale subject to assessment, it can be deemed as a single project, and it can be said that the above legislative intent should be achieved by considering the same type of project as “a project that has a big impact on the environment” (Article 4 of the Act). It is no longer necessary to determine the overall scale of the project as a whole, regardless of whether the project is implemented by a single project, or not, depending on the existing scale or scale of the project.

However, in full view of the basic facts and records stated in the above Paragraph 1 in this case, it can be seen that the business of this case and the previous housing construction projects approved in the same sphere of influence are in excess of 30,000 square meters if they are combined with each other’s business size (the respondent does not specifically dispute this point) and each other’s business size.

Thus, the project of this case constitutes a project or scale subject to environmental impact assessment.

(2) The legal interest of the applicants (qualified for plaintiff)

(A) Even if a third party who is not the other party to an administrative disposition is not the direct party, if the interests protected by law are infringed by the administrative disposition, the party is entitled to file a lawsuit seeking the revocation of the administrative disposition, and the “interest protected by law” in this context refers to “individual, direct, and specific interests protected by the relevant laws and regulations and regulations” (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006). In addition, the “applicable laws and regulations” in this context includes not only the substantive provisions concerning the administrative disposition but also the procedural provisions.

However, in full view of the provisions of the Housing Act and the Environmental Impact Assessment Act, which are the basis laws and regulations of the instant disposition, and the relevant provisions of the Enforcement Decree, the purport of these Acts and subordinate statutes is to protect the individual benefits that can live in a pleasant environment without being affected by an environmental infringement exceeding the tolerance limit, compared to the previous records by the residents in the area subject to the environmental impact assessment that is expected to cause direct and significant environmental damage due to the implementation of the housing construction project, which entails building site creation in a certain scale of more than a certain scale. Therefore, the above environmental benefits held by the above residents in relation to the housing construction project plan, approval disposition, etc. are the direct and specific benefits individually given to the individual residents, and it is actually presumed that there is a risk of infringing or infringing on the environmental interest, and therefore

(B) However, at the time of the preliminary examination of the environmental impact on the development plan for the settlement district of △△won of the project site of this case, the applicants are residents of the apartment complex located far away from the project site of this case, i.e., the following areas subject to environmental review by each item of assessment: Within approximately 0.5 km from the nearby area, namely, weather: within the area centered on the project district, the land use: the area within one km from the project district and the project district, the water quality: the area within one km from the project district and the project district, the neighboring river, the waste, the city of the project district, the noise and vibration, and the noise and vibration: the area within 300 meters from the separation-distance distance centered on the project district and the neighboring area of the project district, the amusement/landscape project district and the surrounding area of the project district (Seoul 32).

Thus, the applicants are residents within the scope of the area subject to the environmental impact assessment on the project of this case (the respondent does not specifically dispute this point).

(C) Ultimately, the applicants who reside in the area subject to the environmental impact assessment of the instant project have the interests protected by the laws and regulations related to the environmental impact assessment, and are also entitled to institute a lawsuit seeking revocation of the instant disposition.

3. Whether the instant disposition is lawful

In the instant disposition, which is the approval of the housing construction project plan, the environmental impact assessment under the Environmental Impact Assessment Act was seen above, and there is no dispute between the parties that the respondent did not go through the process of such environmental impact assessment at the time of the instant disposition. Thus, the instant disposition cannot avoid being deemed unlawful in the course of the process (as seen earlier, only that the respondent completed the preliminary examination under the Framework Act on Environmental Policy cannot substitute or omit the environmental impact assessment).

4. Necessity for suspending the execution.

The instant project is a large-scale project that creates apartment complexes by reclaiming forests in the △△△-gu Seoul Metropolitan City located in the △△△-si, which is a large-scale project that creates an apartment complex, and pursuing the name and interest of “development,” but on the other hand, it is a project that is accompanied by “environmental infringement,” and the instant disposition is a disposition that approves the development project of both sides

In addition, even though this decision is not a final decision on the merits lawsuit, it is on the premise that “the instant project falls under the scope and scale of the project subject to environmental impact assessment, and therefore, it is unlawful to take the instant disposition without going through the evaluation.” Nevertheless, if the instant project is being carried out for a considerable period of time due to the external validity of the administrative disposition, it would be difficult to recover it in the original state even if the said disposition is revoked later (this point is sufficiently recognized in light of the nature and scale of the instant project). Such damage is much larger, more important and almost permanent than the damage on the part of the Intervenor due to the suspension of execution of the administrative disposition.

Therefore, in order to prevent irrecoverable damage caused by the execution of the instant disposition, it is recognized that there is an urgent need to temporarily suspend the instant disposition until the execution of the instant disposition, which is the main subject of the instant disposition, by the time the judgment is sentenced (No. 2006Guhap2719, Suwon District Court Decision 2006Guhap2719). (Specially, there is no evidence to deem that such suspension might have

5. Conclusion

Therefore, it is reasonable to suspend the execution of the disposition of this case until the pronouncement of the judgment of the court of first instance on the merits of this case. Thus, the application of this case is accepted with merit, and the decision of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition.

Judges Lee Jae-in (Presiding Judge)