(영문) 서울행정법원 2016.8.18. 선고 2014구합53308 판결

On February 3, 2014, the Defendant’s notification of the environmental conservation measures following partial revision of the project plan to the Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Korea Electric Power Corporation (hereinafter “ Intervenor”) on February 3, 2014, is revoked.

Reasons

1. Case history

A. The Intervenor was a corporation established for the purposes of the development, transmission, transformation, distribution, and business related to the power resource development, and with the approval of the implementation plan for the electric power resource development business from the Defendant, and “765k Reporting Ri - the construction of the electric transmission line (A section) at Pyeong-si, Yangyang-si, Pyang-si, and Chang Changwon-si, both of which were conducted by the Defendant (hereinafter “instant project”).

B. The Plaintiffs are residents living in the Hayang-si, where the steel tower formation works and the household line construction works were implemented in accordance with the instant project.

C. Around October 2006, the Intervenor submitted an environmental impact assessment report to the Defendant, which contains the following details, to obtain approval for the instant project:

○ Business size - The size of steel tower: 55,866§³ - The size of other sites for transportation of materials: The method of transporting materials by steel tower ○○ steel tower by means of transportation of materials of 257,684 square meters:

D. Around March 2007, the Intervenor submitted an environmental impact assessment supplementary data to the Defendant, and the aforementioned supplementary data included the content that the supplementary data would change the content that the steel tower No. B would be used to transport the helicopter materials instead of cable railways.

E. The Defendant requested consultation on environmental impact assessment to the Ministry of Environment, and on July 30, 2007, the East River Basin Environmental Office under the Ministry of Environment notified the Defendant of the content of consultation pursuant to Article 20 of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (Article 208, 3, 28, 9037, before the whole amendment or amendment to the Environmental Impact Assessment Act; hereinafter the same shall apply).

F. On December 6, 2007, the Defendant approved the instant project, and publicly notified the implementation plan for electric power resource development business including the following (hereinafter “instant implementation plan”).

The name of ○ Business: The name of the project: 765km reported-to-Seoul Electric Transmission Line (A section): the outline of ○○ Project: 69,959km: the location and area of the project implementation district of 123 (second lines). The location: The area of the project implementation district of 123 (second lines): The area of the project implementation district of 2,562,212С (the steel tower: 5,98m; 2,506,224m) and the area of the urban planning facilities (electric supply facilities): the details of the land, etc. to be expropriated by the contents omitted: the name and address of the interested parties, such as the owner of the land, etc. and the name and address of the interested parties:

G. The Intervenor transported 30 steel towers, including six steel tower number C, D, E, F, G, and B, which were scheduled in accordance with the project implementation plan in the course of the instant project. The Intervenor submitted a review of environmental conservation plan (hereinafter referred to as “environmental conservation plan of this case”) to the Defendant on January 1, 2014, 29 without suspending the construction, when there were changes in the external site area for the installation of steel tower due to the change in the location of steel tower according to civil petitions, such as the increase in the steel tower site due to the change in the location of the steel tower, the accumulation of materials for the steel tower construction, the securing of the revolving radius of the construction equipment, and the increase in the area of the external site for excavation earth and sand.

| 2. 사업계획의 변경사항(이하 '이 사건 변경 사항'이라 한다)0 30개 철탑에 대한 자재 운반방법이 삭도 및 진입로에서 헬기 운반으로, 1개 철탑이 진입로에서 삭도로, 2개 철탑이 삭도에서 진입로로 변경되었다.○ 철탑공사를 위한 철탑부지 외부부지 면적이 현장 여건 및 현장 실측 등으로 인해 당초 협의한 면적보다 354,196㎡ 증가하였다.○ 철탑부지는 토지주 민원에 따라 철탑 위치가 다소 변경되어 당초 계획보다 519㎥ 증가하였다.○ 환경영향평가 당시 제외되었던 삭도 선하부지 (42,279m) 및 중간지주 면적 (835m²)을 추가하였다.

H. On February 3, 2014, the basin basin basin environmental office in the Nakdong River basin had a prior notice of imposition of a fine for negligence on the ground that an intervenor transported the steel tower material to a helicopter for 30 seasons without a review by the approving authority, even though the intervenor intended to transport the steel tower material only for 6 seasons at the time of the initial environmental impact assessment, if the content of the consultation is modified following a change in the project plan.

I. On February 3, 2014, the Defendant notified the intervenors of their opinions on the environmental conservation plan of this case with the content that the Intervenor did not have any additional opinion on the means to minimize environmental impacts, but through thorough compliance with the implementation plan presented during the implementation of the project, the Defendant continuously managed the surrounding areas so as to minimize damage to the surrounding areas and notify the prime time (hereinafter referred to as the “instant notification”).

j. The instant project was completed by the Corporation in October 2015, and the site offered to the Corporation was restored to its original state at the latest.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 8, Eul evidence 2 (including branch numbers), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The defendant's assertion that the notice of this case to the plaintiff in this case was defective in the procedure of hearing the opinion of the Minister of Environment under the Environmental Impact Assessment Act, and thus, the defendant's assertion that the notice of this case to the plaintiff in this case should be revoked as follows.

① The instant notification is merely a notification of the concept or an act of non-power of fact, not a disposition, by simply notifying the Defendant’s opinion that there is no special problem regarding the environmental preservation plan prepared by the Intervenor.

② The Plaintiffs do not have any legal interest to seek the revocation of the instant notification, as they are not the parties whose interests are legally protected by the instant notification.

③ The Intervenor has completed all of the construction of the instant project, and all of the land on which the Corporation was proceeding was restored to its original state, there is no benefit in the protection of rights to seek revocation of the instant notification.

B. Whether the instant notice constitutes a disposition

1) The notification of the instant case on the premise of the determination of disposition is an expression of opinion to the effect that the Defendant would continue the construction because there is no special problem as to the environmental preservation measures for the modified matters submitted by the Intervenor.

If the above notification of this case constitutes a disposition subject to appeal litigation, it should be deemed that there is a possibility that the plaintiffs' rights or interests may be directly infringed in addition to the infringement of rights or interests due to the initial approval disposition of the implementation plan of this case.

In this regard, it is necessary to first examine the contents and purpose of the relevant regulations.

2) Contents and purport of the relevant provisions

Where a business operator intends to "revision a "project plan, etc." which was consulted at the time of the initial environmental impact assessment, if the modified contents fall under any of the subparagraphs of Article 32 (1) of the Environmental Impact Assessment Act, the head of the approving agency shall request the re-consultation to the Minister of Environment, and if the modification is not subject to the above re-consultation, the project operator shall prepare a plan for environmental conservation following the modification of the project plan, etc. and undergo an examination by the head of approving agency. In such cases, if

The purpose of the above provisions is to clarify in the law the cases where there is a new circumstance that is likely to additionally infringe on the rights and interests of the residents concerned by not being included in the original environmental impact assessment or by being modified, even if it had undergone an environmental impact assessment on the original project plan, etc., even if it had undergone an environmental impact assessment on the ‘project plan, etc.', and to specify in the law the cases where there is a new circumstance that is likely to violate the rights and interests of the residents concerned

The fact that the change in this case does not fall under the subject of the re-consultation with the Minister of Environment is without dispute between the parties, even if it does not fall under the subject of the re-consultation, the plan for environmental preservation shall be prepared to undergo an examination by the head of the approving agency, and the opinion of the Minister of Environment shall be heard if there is a ground under the Enforcement Decree

Therefore, unless there are special circumstances, it is difficult to view that there is a new possibility of infringement on the plaintiffs' rights to benefit, barring any special circumstance, the notification of this case is not a disposition, but merely a notification of fact or concept.

As such, it is closely related to whether the defendant's notice of the change of this case constitutes a disposition subject to appeal litigation or not, and as such, it is closely related to whether the change of this case constitutes "the change of "project plan, etc.", we examine the following issues.

3) Whether the change in the instant case constitutes "the change in the business plan, etc."

A) The meaning of "project plan"

On the other hand, ① The former Act on Assessment of Impacts of Works on Environment, School Traffic, Disaster, etc., which was in force at the time when the Defendant approved the instant implementation plan, refers to the project subject to impact assessment such as environment, etc. or its project plan (Article 17(1)), and stipulates that the subject of approval by the approval authority is "project plan, etc." (Article 21 and Article 22), and the current Environmental Impact Assessment Act also has the same provision on the subject of approval (Article 21 and Article 22), and the Enforcement Decree thereof refers to the subject of the project or its project plan as "project plan, etc." (Article 51).

Therefore, in the case of this case, the "project plan, etc." that is at issue shall be deemed to mean the project of this case or the implementation plan of this case.

Meanwhile, according to the Electric Power Source Development Promotion Act, the term "execution plan for electric power resource development business" refers to a detailed plan for the execution of electric power resource development business (Article 2 subparagraph 3), and the operator shall establish an implementation plan and obtain approval from the defendant, and also obtain approval from the defendant in principle (Article 5 (1) and (2) since the change of electric power resource development business is made in accordance with the procedure for modifying the implementation plan.

B) Whether the project plan constitutes a "revision" of the project plan

In light of the contents of the relevant provisions and the specific contents of the instant modified matters, it is reasonable to view that the instant modified matters do not constitute “an amendment to the instant implementation plan.”

① With regard to the portion that the number of steel towers, which were originally used to transport materials to a helicopter, has increased from 6 to 30,000 square meters, such as the construction of a material transport channel, Article 5(3) of the Electric Power Source Development Promotion Act provides for the outlines of electric power source facilities (No. 1) and the location and area (No. 2) of the electric power source development project area as matters to be included in the implementation plan under each subparagraph, and delegates other matters to the Presidential Decree (No. 7). According to the delegation, Article 15(4) of the Enforcement Decree of the Electric Power Source Development Promotion Act provides for the matters that are not to be included in the implementation plan in the area of the access road zone to be temporarily used for the construction of electric transmission lines, which is anticipated to be restored to the implementation plan. In fact, it appears that the area of the project area under the implementation plan of this case includes the area of the steel tower and the area of the site for the construction, but does not include any access road to the entire area of the construction site.

② Also, as the location of a steel tower, which is a power source facility, increases in the size of 519 square meters, Article 5(2) of the Electric Power Source Development Promotion Act and Article 14(1)2 of the Enforcement Decree of the same Act provide that the change of the location of the power source facility in the electric power source development business area is not a matter to be approved, but a matter to be reported is not a matter to be approved. However, it is difficult to view that the Plaintiffs’ right interest may be additionally infringed on in that the change of the location of the steel tower was accepted by the relevant residents, and that the business area of

4) Sub-determination

Therefore, it is difficult to see that the change of the instant implementation plan constitutes a case where the instant implementation plan was changed, and there is no other circumstance to deem that there is a possibility that the Plaintiffs’ interests may be additionally infringed due to the change of the instant implementation plan. Therefore, the instant notification does not constitute a disposition.

C. A lawsuit seeking cancellation of an unlawful administrative disposition that has ceased to exist in the interest of protection of rights is intended to restore the status to the original state by excluding an unlawful state arising from an unlawful disposition, and to protect and relieve the rights and interests infringed or interfered with such disposition. Thus, even if such unlawful disposition is revoked, there is no benefit of lawsuit seeking cancellation (see, e.g., Supreme Court Decision 75Nu230, Jan. 27, 1976).

Furthermore, even if the change in the situation after the disposition already takes place, the infringement of the interest has been resolved and the illegal state has no longer remains due to the cancellation of the disposition, so even in this case, there is no benefit of lawsuit seeking cancellation of the disposition.As seen earlier, the fact that the project of this case was completed before the closing of argument in this case and the restoration of the external site, etc. offered to the Corporation was fully conducted, there is no benefit of dispute over the right to protection of rights.

D. Sub-determination

As seen above, it is difficult to see the instant notice as a disposition, and even if it is not so, it cannot be said that the Plaintiffs have interests in the protection of rights, and thus, the instant lawsuit is deemed to be a mother or unlawful.

3. Conclusion

Therefore, all of the plaintiffs' lawsuits of this case are dismissed, and it is so decided as per Disposition.