2013Nu275 Revocation of Disposition of Disposition of Additional Notice of Construction Waste Disposal Plan

*** Construction Co., Ltd.

Seosan-si 00 - Domba--

Representative Director 000

Attorney Im Sung-sung et al., Counsel for the defendant-appellant

Simsan City

Attorney Lee Han-cheon, Counsel for the defendant-appellant

Litigation Performers Jeong-hee, Do governor-general, and literary formula

National Agricultural Cooperative Federation

Seosan-si Masan-ro 691

Representative Chairperson, the President of the Minimum Council;

Manager Nowon-up Exchange

Attorney Kim Tae-sik, Counsel for the defendant-appellant

Daejeon District Court Decision 2012Guhap2582 Decided January 23, 2013

September 12, 2013

October 31, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. On June 12, 2012, the defendant revoked the disposition of non-conformity with the construction waste disposal business catch issued against the plaintiff.

1. Details of the disposition;

A. The Plaintiff is a company established for the purpose of dismantling structures, dismantling, removing buildings, etc.

On May 20, 2012, the Plaintiff submitted to the Defendant a construction waste disposal business plan with a content of planning the establishment of a place of business for interim disposal business, such as waste soil and sand, waste concrete, waste block, waste brick, fireproof brick, construction waste compound, etc. on the ground of 10,786 square meters of forest land - 14,936 square meters (hereinafter referred to as “the site of this case”).

B. After compiling the opinions of the relevant ministries, the Defendant rendered the instant disposition, which did not comply with the construction waste disposal business plan, against the Plaintiff on June 12, 2012.

[Reasons for Disconformity] Review of the locational conditions and the planned area of the project is located at the 118m mnives of the sea wave, and the inflow of pollutants into the lower part of the river at the time of the river. In particular, where pollutants flow into the lower part of the project site, wide range of farmland shall be avoided.

647 lines, which are expected to pass through the local highway, are inappropriate to operate large truck (20 tons per day) for the transportation of construction waste, because the width of the 60-year road is narrow and dry, (20-ton loading standards). It is anticipated that the operation of construction waste transportation vehicles and noise, vibration, scattering dust, etc. will have an adverse impact on the living environment of local residents, and most nearby local residents are engaged in agriculture, and the operation of agricultural machinery using 647 lines will cause inconvenience and safety problems in the operation of large trucks, and the operation of the 60-year local highway into the local highway site is likely to pose a threat to the improvement of the construction site of the 60-year urban railroad management office (the 60-year urban railroad management office) and the 10-year urban railroad management office, which is the only improvement of the construction site and the 20-year urban railroad management office, so far as there is no signal system, and there is no possibility that the 1-year urban railroad flow is frequent due to the improvement of the 60-day site.

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an administrative appeal with the administrative appeals commission in Chungcheongnam-do, Chungcheongnam-do, but was dismissed on September 19, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 7, Eul evidence Nos. 5, 9, 14 through 17, 42 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disposition was unlawful since each of the following grounds for the disposition was erroneous by mistake of facts, or by lack of consistency, thereby deviating from and abusing discretion.

1) Regarding site conditions

The application form of this case is located at the lower part of the mountain site and there is no possibility that pollutants will be discharged by reducing the construction waste disposal business. Since the Plaintiff obtained permission for road connection and permission for road occupancy and use and use from the Defendant and the Hongsung-do Construction Business Office to Hongsung-do Construction Business Office, there is no particular problem for large trucks to pass the application site of this case from local highway 647 lines.

2) Regarding the impact on the living environment of residents

The motion of this case is spatially shieldinged, and there is no citizen in the vicinity of the motion of this case, and there is no number of agricultural machinery, etc. using 647 lines of local highway 647 lines, so there is no danger of traffic following the passage of large trucks.

3) Relation to the impact on surrounding environment (Korea-Japan)

A) The instant application site and the Korea-Japan improvement business place are located far away from approximately 2 km. The edge of the area that was created by the Korea-Japan Liven Business Office as a wooden site for the prevention of Chinese rain, is located at the new site of this case where approximately 160 meters away from the new site of this case. However, the instant application site and the instant wooden site are cut off by the forests and fields, and there is no risk that livestock breeding disease, such as the fest station, etc., will be transferred due to the operation of construction waste transport vehicles.

B) Noise and dust generated from the existing vehicles passing through the 647 line of local highway is already reached the permissible volume of noise, etc., and noise, etc. generated by the passage of large trucks to the application site of this case is within the scope of statutory permission.

Since the problem of noise, dust, etc. caused by vehicles driving 647 lines on local roads exists in a situation where there is a risk that has already been realized, it is not a special problem even if the passage of the Plaintiff's construction waste transport vehicles increases.

(iv) relating to the volume of excess disposal plans;

The treatment quantity stated in the business plan by the Plaintiff is merely a design capacity, with the maximum capacity that can be treated one day on the basis of the capacity of the scrapr, and is different from the actual treatment capacity that can meet the demand after operation.

Since the Plaintiff’s construction waste disposal business can expand its business for construction wastes collected across the country because the land price is not limited, it is not reasonable to assess the Plaintiff’s disposal planning quantity based on the total quantity of construction waste discharged from Seosan City.

(b) Relevant statutes;

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

C. Determination

1) Relevant legal principles

The issue of whether a certain administrative act is a binding act or a discretionary act is a discretionary act or a discretionary act can not be uniformly defined. In light of the structure and text of Article 21 of the Construction Waste Recycling Promotion Act and Article 14 of the Enforcement Decree of the same Act, it is only a minimum requirement to obtain a construction waste disposal business license (facilities and equipment, technical capability, size of capital, and site for a place of business, etc.) and the notification as to the appropriateness of a business plan that takes place prior to the permission, the Minister of Environment or the Mayor/Do Governor may not provide a uniform and conclusive formula for the determination as to whether the waste disposal business plan is a person who intends to obtain a waste disposal business license, whether the location of waste disposal facilities violates any other Act, whether the facility and equipment in the waste disposal business plan violates any other Act, whether the facility and technical capacity in the plan for the construction waste disposal business have been left behind, and whether the plan for the construction waste disposal business plan has any effect on the health of another person.

In such a case, determination of necessary standards for notifying the appropriateness of a business plan is also subject to the discretion of an administrative agency at the time of the calendar, so the intent of an administrative agency shall be respected as far as possible, unless there are other special circumstances that deem that the established standards are objectively unreasonable and unreasonable (see, e.g., Supreme Court Decision 97Nu21086, Apr. 28, 1998).

2) Facts of recognition

A) The forest where the instant application site is located is the plan to install construction waste disposal facilities in the instant application site located within the maximum size of 118 meters, the lowest size of 60 meters, and the Plaintiff’s maximum size of 106 meters among them, and the minimum size of 67 meters. The field of mountain where the instant application site is located is located between farmland created extensively in the lower part and green areas designated as Korea-Japan breeding stock protection area. The area of mountain where the instant application site is located is located between the lower part of farmland and green areas, etc. located within 160 meters in straight line from the date of the instant application, and the area of the first and lower banks of Korea-Japan improvement business is located within 500 meters in straight line from the date of instant application.

B) According to the access road to the instant application site, farming roads are installed, and farming roads are used for the purpose of directly supplying agricultural water on farmland created extensively at the lower end of the instant application site.

Within 250 meters in the vicinity of the application site of this case, one house is located. The local highway 647 lines leading to the application site of this case are the two-way roads, which are the two-way roads, and the width of the road is not wide, and bend roads.

C) The Plaintiff’s business plan is as follows.

The Plaintiff is scheduled to dispose of wastes with a total of 1,600 tons per day, and is scheduled to be equipped with a waste storage facility of 11,840 meters equivalent to 11 times the daily disposal capacity. Construction wastes brought into the instant application form are confirmed as being carried in when they pass through the fixed door, and after confirming whether a dust-proof cover is installed for water collection and transport vehicles, the Plaintiff shall take measures to bring them into the installed vehicle only, and the collection and transportation of construction wastes shall be entrusted to the entrusting enterprise. The construction wastes shall be disposed of by discharging water using one string vehicle with dust emission control measures at the time of construction, and the dust reduction effect may be expected by restricting the speed of vehicle operation at the workplace. At the time of the implementation of the project, the construction of the instant application form results in excellent and soil outflow at the bottom of the instant application form, and thus minimizing the impact on the surrounding area by establishing measures to mitigate them.

D) The signal system is not installed in small-scale 1st village access road located near the instant application site, and when entering from the 647 line of a local highway, it is turned to a narrow sloping sloping road. At the time of entry, it is turned to a bend road and a bend road.

E) On April 3, 2001, the Director of the Agricultural Cooperative Livestock Improvement Project: (a) requested on April 3, 2001 the Defendant to designate one rain at the place of business of livestock improvement as a protected livestock for the purpose of protecting one genetic resources secured through the improvement of oriental medicine for a period of 20 years, on the ground that there are 7 sides adjacent to 7 sides in the vicinity, and there are difficulties in disease control activities due to the passage of a large number of vehicles and human resources, and there are difficulties in protecting one genetic resources secured through the improvement of oriental medicine. (b)

On April 11, 2001, in order to improve livestock and to protect excellent breeding stock by the cutting-control for the prevention of recurrence of the foot-and-mouth disease, the Defendant designated and decided as a breeding stock protection area for which the entry of the outside person and vehicles is controlled by using the 1 breeding place, the outdoor breeding place, the first verification box, the second verification box, the guarantee race box, the candidate race box, the first radiation, the second radiation, the second radiation, and the third radiation) as the protected livestock, and the Defendant maintained human resources and financial support as the protected area up to the present.

F) As a research institute for the improvement of Korea-Japan variety, Korea-Japan Plant variety is one of the Korea-Japan Plant variety, where 100% of the sperm for artificial insemination is supplied to the farm that raises Korean cancer, the Korea-Japan Plant variety keeper is the genetic resource storage plant. In order to prevent the inflow of all kinds of pollutants, such as cirrosis, the outside person’s access is prevented, and where the access of people or vehicles is required, thorough disinfection is being conducted at least 365 days a year and 365 days a year, including thorough disinfection, and the protection system is being operated to protect them if contagious diseases, such as the c

As of January 31, 2012, the Korea-Japan Improvement Business Place was comprised of 4,520,000 square meters in forests, 2,90,000 square meters in grassland, and 3,800,000 square meters in embankments. As of January 31, 2012, the facilities at the Korea-Japan Improvement Business Place (the first emission, 2 emission, 3 emission, paper emission, 1 verification, 2 verification box, 3 verification box, 3 verification box, outdoor rain, cancer improvement center, and Korea-China Fixed Center) are located in the Korea-Japan Improvement Business Place (the Korea-Japan Production Business Place) (the Korea-Japan Production Business Place is comprised of 77 kinds in rain, 33 kinds in rain, 585 heads in rain, 238 heads in rain, 391 heads in rain, 58 heads in rain, 126 heads in rain and 126ths in rain and 126ths in rain.

G) The results of animal testing show that cement dust, dust, etc. can damage the animal respiratory system such as waste and machinery, etc., and the construction waste machinery that can cause environmental hurmon is known to cause degradation of the reproductive function of the ecosystem and human beings, climate, growth disorder, cancer, etc.

Since construction wastes are mixed with organic materials, the law regulates the minimum amount of oil content among construction wastes, but it is difficult to completely dispose of organic materials so that organic materials do not combine in the process of collecting and transporting construction wastes.

h) In the case of lawsuits, quarantine measures are taken in regular and regular manner, and the main contents of the quarantine measures are blocking (personal, vehicle access and traffic control), disinfecting (personal, vehicle, road, etc.), and in the event of an outbreak of a foot-and-mouth disease, it can prevent the spread of the foot-and-mouth due to thorough and prompt decrising measures due to the characteristics of the foot-and-mouth disease rapidly spreading.

The dissemination of the remedy station is carried out by indirect radio waves by people or vehicles, by air, etc., and the dissemination of the domestic remedy station is mostly carried out by vehicles and people's movement.

According to the Guidelines for Emergency Action for the Remedy Station established by the State, a dangerous area shall be established within a radius of 3 km, centering on the farm at which the first outbreak occurred due to the outbreak of the remedy station, and thorough control measures have been required for the areas where the additional outbreak of the remedy station is likely to occur.

I) According to the white paper published by the Korea Rural Economic Institute (Ministry for Food, Agriculture, Forestry and Fisheries) from 2010 to 2011, in the case of the Chungcheong area, it is presumed that the foot area was an area where people or vehicles share human and physical resources for livestock industry officers, such as Gyeonggi-do areas and feed vehicles and shipping vehicles, or for which the foot station was to have been disseminated. The remedy station in the Chungcheong area was investigated as being involved in various causes, such as feed vehicles, vehicles for delivery of sperm, vehicles for livestock transportation, and visits to polluted areas, and among them, it is presumed that there were the highest risk of radio waves by feed vehicles.

j) Even based on the evidence submitted by the Plaintiff, from noise level of 50dB or more, damage may occur, such as delay in the growth of rain, miscarriage, stillbirth, waste death, and decrease in reproduction efficiency, depending on noise level.

As a result of the measurement of vehicle noise at the beginning of the Han Do 647 line located in the Han Do 647 line, where a dump truck with 20 tons from the 647 line of the local highway runs for general driving, the noise of 83dB was measured, and the noise of 103.6dB was measured at the 10th line of the local highway 647 line, and where a dump truck with 20 meters wide from the 647 line of the local highway 647 line was measured at the Han Do 647 line, and where a dump truck was measured at the 547 line of the local highway 647 line, the noise of 94.6dB was measured, respectively.

(k) According to noise and vibration standards by the Environmental Dispute Resolution Committee, in the case of noise among the standards for recognition of livestock consumption by noise and vibration, the injury levels were newly established from January 1, 2008, which strengthens from the existing 70dB (A) to 60dB (A) in the case of noise due to noise and vibration.

Other) In order to install construction waste disposal facilities in the instant application site, the Plaintiff purchased the answer of nine lots located at the lower part of the instant application site, and agreed to the effect that “the down payment and remainder must be returned to the Plaintiff without any objection, by December 30, 2012, without the amount of compensation, when the Plaintiff becomes aware of the authorization” as a special terms and conditions of the sales contract.

[Based on recognition] Gap evidence Nos. 7, Eul evidence Nos. 1 through 4, 6 through 9, 11, 18, 20 through 23, 27 through 40, 42 through 45, and 52 through 54 (including each number), the result of the on-site verification by the court of first instance and the trial, the result of the verification by the new expert witness at the trial court at the trial, the result of the inquiry by the court of first instance to the Minister of Agriculture, Food and Rural Affairs at the court of first instance, the result of the fact inquiry by the Minister of Agriculture and Fisheries at the court of first instance to the Director of the Agricultural and Fisheries Quarantine Service at the trial,

3) Whether there was a mistake by mistake in the facts of the instant disposition, or whether the instant disposition deviates from or abused discretion due to lack of objective consistency

In light of the relevant legal principles, the following circumstances revealed in full view of the facts recognized as above and the purport of the entire pleadings cannot be deemed as erroneous for misapprehending the facts of the instant disposition, and the instant application appears to be inappropriate as a location for the business of construction waste disposal facilities on the same grounds as the instant disposition grounds. Therefore, the instant disposition was rendered within the scope of discretion.

A) A wide range of farmland maintained at the lower end of the instant application site was created. On the side of the access road to the instant application site, a irrigation channel is installed, and construction waste disposal is increased due to the installation and operation of the Plaintiff’s waste disposal facilities in the instant application site, and construction waste disposal quantity and the volume of dust and wastewater flow cumulative due to the repeated operation of the facilities, there seems to be likely to cause damage to farmland located at the lower end of the instant application site and the farm road located adjacent to the instant application site, which is located adjacent to the access road.

B) The main passage of the instant application site is the 647 line, which is the narrow and bend road, the narrow and bend road. The intersection of the access road to the small 1st of the middle 1st of the instant application site is so severe that it is difficult to secure the view view, and it is difficult to secure the view view, the frequent passage of construction waste trucks (the maximum processing volume of 20 tons truck 80 to 160 ton per day) may be likely to provide the factors that could focus on the occurrence of traffic accidents on the adjacent road of the instant application site.

C) If the Plaintiff assumed that construction waste disposal facilities are installed and operated according to the Plaintiff’s business plan, approximately 80 tons of truck with a loading capacity of 20 tons per day should be operated to collect, transport, and dispose of 1,600 tons of a day. However, it seems that the Plaintiff’s vehicle noise and the dust of construction waste are likely to cause damage to the Plaintiff’s vehicle noise and the dust of construction waste.

D) The propagation of the domestic remedial station was investigated as an important factor for vehicle moving. Since construction waste disposal facilities were installed in the instant site, it appears that large trucks loaded with construction waste collected and transported from each across the nation will serve as a factor for rapid propagation of the remedial station, even if they pass through the lower end of the Han River Improvement Business Office over several times. In fact, in the event of the outbreak of the remedial station, it seems that the Defendant’s financial expenditure and administrative mobilization for the implementation of the control measures against the new Cheong River located within three kilometers from the half radius controlled as the risk area, and it is difficult to cope with infectious disease control measures, such as the outbreak of rescue force, efficiently.

E) Since the Han Dow improvement business place takes place through natural radiation, it is difficult to see that construction wastes, including the contaminated organic substance, are all unlikely to be scattered at the time a truck loaded with construction waste frequently operates the Han Dowdow, and there is no measure to recover damage that may be incurred in the event of cumulative construction waste and its dust, etc.

On the other hand, even if the risk caused by vehicles operating 647 lines of local highway or vehicles operating 647 lines is realized, the potential risk caused by the Plaintiff’s construction waste disposal business is not comparable on the same line with the existing risk. In the situation where there exists the existing risk, the damage to the Korea-friendly improvement business office may be increased if the potential risk caused by construction waste loading trucks is increased.

F) At the time of the instant disposition, when the result of the measurement of vehicle noise based on a 20 tons dump truck from the 647 line of local highway at the time of the instant disposition, the Plaintiff exceeded 50dB, which is the noise standard that may cause damage, such as delay in the growth of Han-ri, miscarriage, stillbirth, waste death, and lack of efficiency in proliferation. Even if the vehicle noise measured based on the existing vehicles passing 647 line of large-scale local highway 647 line as asserted by the Plaintiff, it cannot be ruled out that, in addition to the existing vehicle noise, if the noise of construction waste loaded in construction waste is added, the possibility of causing noise damage to one of the business places for the improvement of Han-ri, a protected livestock, may not be ruled out.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Notarial Award (Presiding Judge)

Excursion ship poles

Kim Yong-ray

1) Article 8(2) of the Livestock Industry Act, which is the legal provision that serves as the basis for the request for designation at the time, is the Minister of Agriculture and Forestry or the Mayor/Do governor.

In order to improve and protect livestock in the bill, the protection support fund may be paid or other necessary measures may be taken.

Site of separate sheet

Relevant statutes

Act on the Promotion of Recycling of Construction Wastes

Article 21 (Permission, etc. for Construction Waste Disposal Business) (1) 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 determined by Ordinance of the Ministry of Environment.

(2) A Mayor/Do Governor shall review a construction waste disposal business plan submitted pursuant to paragraph (1) and notify a person who has submitted a construction waste disposal business plan as to whether such plan is appropriate.

Enforcement Decree of the Construction Waste Recycling Promotion Act

Pursuant to the latter part of Article 14 (Conditions on Permission for Construction Waste Disposal Business) of the Act, a Mayor/Do Governor may attach the following matters to the conditions of permission in order to protect the surrounding environment and properly dispose of construction waste:

1. Measures necessary for restraining the generation of flying dust or noise;

2. Measures necessary to prevent the generation of abandoned wastes, such as compliance with the permissible storage quantity;

3. Matters necessary for the installation, operation, and management of waste disposal facilities, etc. to prevent environmental pollution in neighboring areas and to prevent property damage to local residents;

/ Wastes Control Act

Article 25 (Waste Management Business) (1) A person who intends to engage in the business of collecting, transporting, recycling, or disposing of wastes (hereinafter referred to as "waste disposal business") (excluding a person who intends to recycle domestic wastes, excluding food wastes, and a person who has reported waste disposal) shall submit a waste disposal business plan to the Minister of Environment where the subject matter of designated wastes is as prescribed by Ordinance of the Ministry of Environment, and submit it to the Mayor/Do Governor where the subject matter of other wastes is for other wastes. The same shall

(2) The Minister of Environment or a Mayor/Do Governor shall examine and examine a waste treatment business plan submitted pursuant to paragraph (1) in relation to the following matters, and notify the person who has submitted the relevant business plan of whether it is appropriate:

1. Whether a person (including an executive in cases of a corporation) who intends to obtain a license for waste treatment business is disqualified under Article 26;

2. Whether the location, etc. of waste disposal facilities conflict with other Acts;

3. Whether facilities, equipment, and technical capability specified in the waste treatment business plan meet the standards for permission under paragraph (3);

4. Whether installation and operation of waste disposal facilities have an impact on human health or the surrounding environment.