[1] Whether a building permit that entails an act of changing the form and quality of land under the former National Land Planning and Utilization Act constitutes a discretionary act (affirmative)

[2] The subject matter of judicial review of discretionary action

[1] Articles 56(1)2 and 58(1)4 and (3) of the former National Land Planning and Utilization Act (Amended by Act No. 11922, Jul. 16, 2013); Article 56 [Attachment 1-2] subparagraph 1(d) of the Enforcement Decree of the National Land Planning and Utilization Act; Article 11(1) of the Building Act / [2] Article 26 of the Administrative Litigation Act / [Liability for Certification], and Article 27 of the same Act

[2] Supreme Court Decision 2004Du6181 Decided July 14, 2005 (Gong2005Ha, 1353), Supreme Court Decision 2009Du19960 Decided February 25, 2010, Supreme Court Decision 2012Du25590 Decided April 24, 2014

Agricultural Company Limited LLC LLC

Netcheon Market (Law Firm Davia, Attorney Cho Dong-sap, Counsel for defendant-appellant)

Gwangju High Court Decision 2015Nu5466 decided July 2, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Building permission that involves an act of changing the form and quality of land under Article 11(1) of the Building Act and permission to change the form and quality of land under Article 56(1)2 of the National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “National Land Planning Act”) also has the nature of permission to change the form and quality of land under Article 56(1)2 of the National Land Planning and Utilization Act, as well as the nature of permission to change the form and quality of land under Article 58(1)4 and (3) of the National Land Planning and Utilization Act, and Article 56 [Attachment 1-2] subparagraph 1(d) of the Enforcement Decree of the National Land Planning and Utilization Act (hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) (see Article 56(1)2 of the National Land Planning and Utilization Act) (see, e.g., Supreme Court Decision 200 discretion on the act of changing the form and quality of land under the National Land Planning Act.

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

A. On August 9, 2013, the Plaintiff newly constructed food waste disposal facilities (hereinafter “instant facilities”) on the ground of net city (location omitted) and two parcels (hereinafter “instant application site”) to the Defendant, thereby filing an application for a construction permit that entails changing the form and quality of land (hereinafter “instant application”).

B. On August 26, 2013, the Defendant rejected the instant application on the ground that the Plaintiff, on the following grounds: “The residents of three villages reside at a distance of 300 to 700 meters from the place of the instant application. The operation of the instant facilities is likely to cause inconvenience, environmental pollution, and hazards caused by malodor in the course of food waste transport and disposal. Therefore, the instant application is rejected (hereinafter “instant disposition”).

C. At the time of the instant disposition, the residents of the above three villages 100 households were living in the vicinity of the instant application site, and there were a large number of livestock pens.

D. Meanwhile, in the case of food waste disposal facilities located in Leecheon-si, which was installed and constructed around January 2012 as a method similar to the instant facilities (hereinafter “echeon-si facilities”), the installation inspection in 2012 met the permissible emission levels ( below 50 times the discharge outlet 50 times the site boundary is below the dilution standard; 15 times the site boundary line) of other areas as prescribed in Article 7(1) of the Malodor Prevention Act, Article 8(1) and [Attachment Table 3] subparagraph 1 of the Enforcement Rule of the Malodor Prevention Act. However, as a result of the inspection conducted around May 2, 2013, each of the above permissible emission levels exceeded the permissible emission levels by measuring the dilution discharge outlet from the compost process building at the site level around October 29, 2013.

3. On the premise of the foregoing factual basis, the lower court determined that the Defendant erred by misapprehending the facts in the instant disposition or by abusing discretion, on the grounds that: (a) there is a fundamental difference from the open-end treatment facilities because the instant facility was designed to treat food waste in its entirety; (b) malodor generated in the course of its operation is also a method of spreading malodor control facilities through the control facilities; and (c) the occurrence of malodor in excess of permissible emission levels was not discovered after Echeon City’s establishment around November 2013; and (b) it is difficult to deem that malodor in excess of permissible emission levels is likely to occur in the instant facility; and (c) in so doing, the lower court erred by misapprehending the fact in the instant disposition, or by abusing or

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

(1) Even if the instant facilities were designed to treat food wastes in a sealed state, a certain amount of malodor is deemed inevitable. In fact, malodor was produced in the facilities of Echeon City, which has already exceeded the permissible emission levels twice, and in particular, malodor was measured over two times without supplementation even around October 29, 2013 when five months or more have passed since the first measurement of malodor exceeding the permissible emission levels was conducted on May 2, 2013.

Nevertheless, the Plaintiff did not assert or prove the reason why malodor exceeding the emission standards was produced, how the method was currently improved, and how the improvement measures would be applied to the instant facilities. Moreover, there is no objective data to verify the foreseeable emission of malodor in the instant facilities, taking account of such differences, there is no record. Thus, it is difficult to readily conclude that there is no risk of harm, such as malodor, etc. caused by the instant facilities, solely on the basis of the fact that malodor exceeding the emission standards was not detected after November 2013, 2013 without verifying such factors.

(2) Furthermore, the Plaintiff also acknowledges that there are a large number of livestock penss in the vicinity of the instant application site, and that the malodor therefrom exists. Therefore, even if the instant facilities have less malodor emission quantity than the existing open facilities, and satisfy the permissible emission levels prescribed by the Malodor Prevention Act and subordinate statutes, the possibility of causing harm to the health and sanitation of neighboring residents by increasing air pollution along with the existing malodor of livestock pens cannot be ruled out.

B. Ultimately, in full view of the above circumstances, it is difficult to conclude that the Plaintiff’s measures to reduce malodor are appropriate and there is no risk of environmental pollution or hazard caused by malodor, or that the Plaintiff’s disadvantage caused by the instant disposition contravenes the principle of proportionality with a significantly larger degree than the public interest needed to prevent environmental pollution caused by malodor. Therefore, the lower court should have deliberated additionally on the possibility of emitting malodor exceeding the emission standards in the instant facilities in light of the existence of the cause of the occurrence of malodor in the instant facilities and the improvement measures, etc. Therefore, the lower court should have determined whether the instant disposition deviatess from and abused discretionary power, after further examining the possibility of emitting malodor in excess of the emission standards in the instant facilities, as well as whether the measures to prevent the occurrence of malodor is adequate, and whether the degree of malodor is

Nevertheless, without sufficient deliberation on the above point, the court below determined that the disposition of this case was unlawful because it deviates from or abused discretionary authority only for the reasons stated in its reasoning. In such a case, the court below erred by misapprehending the legal principles on deviation and abuse of discretionary authority, which led to the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)