The case holding that there is no legal interest in seeking nullification of the approval and disposition for the initial plan for the installation of a waste disposal facility, in case where an administrative agency, which is not legally authorized, has been delegated the approval authority by the amendment of the relevant Acts and subordinate statutes and re-scheduled the approval plan

The case holding that there is no legal interest in seeking nullification of the approval disposition for the initial plan for the installation of a waste disposal facility, in case where an administrative agency, which is not legally authorized, has been delegated the approval authority by amendment of the relevant Acts and subordinate statutes and re-scheduled the approval plan for the same

Articles 10 and 11-3 of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, paragraph (3) of the Addenda ( February 8, 199), Article 12 (1) and Article 35 (2) of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs, and Article 35 of the Administrative Litigation Act

Ginlur and 10 others (Law Firm Seom, Attorneys Park Dog-young et al., Counsel for the plaintiff-appellant)

Yeongsan River Environmental Office (Attorney Lee Han-woo, Counsel for the defendant-appellant)

Gwangju Metropolitan City (Attorney Lee Dong-woo, Counsel for defendant-appellant)

Gwangju District Court Decision 2001Gu396 delivered on July 19, 2001

Gwangju High Court Decision 2001Nu1795 delivered on October 17, 2002

Supreme Court Decision 2002Du10704 Delivered on July 22, 2004

December 13, 2005

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

It is confirmed that the Defendant’s approval for the installation of waste disposal facilities against the Intervenor joining the Defendant on August 2, 1996 is null and void.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged in accordance with the purport of Gap evidence 3-1, Eul evidence 6-1, Eul evidence 7 through 11, Eul evidence 1, Eul evidence 1, 2, Eul evidence 27, Eul evidence 28-1, 2, Eul evidence 29 through 34, Eul evidence 35-1 through 35-8, and the whole purport of pleadings.

가. 건설부장관은 1992. 11. 6. 구 택지개발촉진법 제3조 제1항 에 의하여 광주직할시 서구 쌍촌, 유촌, 치평동 및 광산구 마륵동 일원을 광주 상무 택지개발예정지구로 변경 지정(토지이용에 관한 계획 중 공공용지 16,500㎡에 쓰레기 소각장 1개소를 설치하는 것을 포함)하고 같은 법 제8조 제1항 에 의하여 위 지구 택지개발계획을 승인하여 이를 고시하였다.

B. On August 6, 1994, the Minister of Construction and Transportation made a recommendation for the designation of a planned area for housing site development and an application for the alteration of a housing site development plan by the supplementary intervenor (hereinafter referred to as the “participating”), pursuant to Article 3 of the former Housing Site Development Promotion Act, the Minister of Construction and Transportation revised the designation of a planned area for housing site development and the alteration of a plan for the implementation of a housing site development project, including the alteration of the area of a site for a site for a garbage incineration site (hereinafter referred to as the “instant incineration site”) including the alteration of the area of a site for a site for a housing site development plan to 33,058 square meters, among the land utilization plans under Article 3 of the former Housing Site Development Promotion Act.

다. 참가인은 1994. 11. 12. 건설부장관의 위임을 받아 구 택지개발촉진법 제9조 에 의하여 ‘사업시행지 : 광주직할시 서구 쌍촌동, 유촌동, 치평동, 광산구 마륵동 일원 2,625,452㎡, 사업의 종류 : 택지개발사업, 사업의 명칭 : 광주 상무(1)지구 택지개발사업, 사업기간 : 1994. 11. ~ 1997. 12. 31.’를 내용으로 하고 토지이용계획 중 공공시설용지 33,058㎡에 쓰레기 소각장 1개소를 설치하는 것을 포함한 광주 상무(1)지구 택지개발사업실시계획을 승인하고 이를 고시하였다.

D. The head of the Seo-gu Gwangju Metropolitan City and the head of the Si/Gun/Gu of Gwangju Metropolitan City publicly announced the environmental impact assessment report and the gathering of opinions from residents during the period from December 15, 1994 to January 21, 1995.

E. On April 17, 1995, the intervenor received a reply from the Minister of Environment for consultation on environmental impact assessment of the Gwangju District Housing Site Development Project, and applied for approval of the installation of the incineration site in this case to the defendant (the title at that time was "YYYY") on June 4, 1996. On August 2, 1996, the defendant issued a disposition to approve the above application in accordance with Article 30 (2) of the former Wastes Control Act (amended by Act No. 5865 of Feb. 8, 1999; hereinafter the same shall apply) (hereinafter "the first disposition in this case"), and the subsequent construction of the incineration site was commenced and the certificate of completion inspection was issued on September 25, 200.

(a) Name of disposal facilities: A disposal facility for regular domestic wastes in Gwangju Metropolitan City;

(b) Standards for disposal facilities: 200t/day ¡¿ 2 (400t/day)

(c) Types of wastes subject to disposal: Domestic wastes;

(4) Amount of estimated disposal (t/year): 133,200

(5) Conditions for approval: Compliance with the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 5396 of Aug. 28, 1997; hereinafter “former Waste Disposal Promotion Act”) (Determination, public notice, and drawings of a waste disposal facility installation plan under Article 10(1) and Articles 13 and 16 through 26); etc.

F. On the other hand, when the plaintiffs filed a lawsuit seeking confirmation of invalidity of the first disposition of this case and the Supreme Court rendered a remand on July 22, 2004 to the effect that the above disposition is null and void as a matter of course, the intervenor established a plan for installation of waste disposal facilities and submitted an application for approval of a plan for installation of waste disposal facilities stating the following matters to the defendant on November 16, 2004. On December 1, 2004, the defendant approved the plan for installation of the above facilities (hereinafter "the second disposition of this case") under the condition that the plan should be implemented as soon as possible, such as promoting the plan for support for areas under the influence of waste disposal facilities around the waste disposal facilities, and publicly announced the plan thereafter.

(a) Outline of waste disposal facilities: Types and scale of facilities, location and site area of facilities, facilities installation institution, installation period of facilities, and area subject to waste disposal; and

(ii)the disposal plan of the wastes generated after the disposal;

(3) Land use plan of surrounding areas

(4) Plan for financing project costs (including annual investment plans);

(5) Matters concerning the purchase and compensation of land, buildings or rights in the area and measures for the relocation of residents;

(f) Environmental impact assessment: An environmental impact assessment report (Preparation in April 1995), a supplementary report (Preparation in July 1995), and a modified plan for agreed terms and conditions (Preparation in August 2001);

2. The assertion and judgment

A. Summary of the parties' arguments

(1) Plaintiffs’ assertion

According to Articles 10(2), 9(1), and 12(1)2 of the former Waste Promotion Act, and Article 5 subparag. 2 of the Enforcement Decree of the former Enforcement Decree of the same Act, the authority to install waste disposal facilities with a daily disposal capacity of at least 300 tons, as in this case, is not the defendant, but the Minister of Environment. Thus, the first disposition of this case by the defendant is made by an administrative agency without a legal authority, and its defect is deemed unlawful and null and void.

(2) The defendant and the intervenor's assertion

(A) The plaintiffs are all members of the organization called "Civil Joint and Several Meeting for the Closure of Commercial Retirement Grounds", and the Intervenor and the above organization agreed to organize an arbitration committee consisting of nine members of the Standing Retirement Board on February 21, 200 to accept conditions in the arbitration proposal of the above arbitration committee. Thus, the lawsuit of this case filed without accepting the above arbitration shall be dismissed as it violates the above agreement, and there shall be no benefit in the protection of rights.

(B) The phrase “where waste disposal facilities are installed” under Article 2 of the Addenda to the former Waste Promotion Act shall be interpreted to include not only the cases where approval for installation of waste disposal facilities is obtained, but also the cases where approval for implementation plan for the housing site development project including the plan for installation of waste disposal facilities is obtained from the Minister of Environment. In such a case, since approval for the above installation plan is not required from the Minister of Environment, the authority to grant approval for installation of waste disposal facilities shall be interpreted to be delegated to the Defendant under the former Wastes Control Act. Accordingly, the instant

(C) Even if the first disposition of this case exists as alleged by the plaintiffs, and its defect is so serious that it becomes null and void, since the defendant was delegated legitimate approval authority in accordance with the relevant laws and regulations amended on December 2, 2004, and again made the second disposition of this case on the incineration of this case through legitimate procedures, the lawsuit of this case seeking confirmation of invalidity of the first disposition of this case is unlawful as it has lost legal interests.

(D) In addition, since the defendant legally revoked the Disposition No. 1 of this case on January 20, 2005 by its own authority, the plaintiffs are not entitled to seek nullification by the lawsuit of this case, and the lawsuit of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) Articles 9 and 10(2) of the former Waste Promotion Act, and Article 5 subparag. 2 of the former Enforcement Decree of the same Act provide that the Minister of Environment or the head of a local government who intends to install and operate a waste disposal facility with a daily disposal capacity of at least 300 tons shall undergo the procedures for the selection of the location of the waste disposal facility, and where the Metropolitan City Mayor selects the location, he/she shall establish a plan for the installation of the waste disposal facility under Article 10(1) of the former Waste Promotion Act and obtain the approval of the Minister of Environment. Thus, as seen earlier, the installation institution has a capacity of 400 to handle the waste disposal facility of this case, and the entity is the intervenor, barring any other special circumstances, must obtain approval from the Minister of Environment after undergoing the procedures

However, Article 11 (1) 1 of the former Housing Site Development Promotion Act provides that when an implementation plan for a housing site development project is approved, it shall be deemed that an urban planning is determined under Article 12 of the former Urban Planning Act. The main sentence of Article 12 (2) of the Addenda to the former Waste Promotion Act provides that if a waste disposal facility is installed under Article 9 at the time of the enforcement of this Act, it shall be deemed that the Minister of Environment or the head of the local government concerned has publicly notified the installation plan for the waste disposal facilities under Article 10, and the provisions of Articles 11, 17 through 26 shall be applied. Paragraph (3) of the Addenda to the former Waste Promotion Act provides that the location of waste disposal facilities falling under Article 9 among the waste disposal facilities determined by the Minister of Environment or the head of the local government under the Urban Planning Act at the time of enforcement of this Act shall be deemed to have been selected in accordance with the procedure under Article 12 (1) 2 of the former Waste Management Promotion Act, the agency installing the waste disposal facilities shall be deemed to have the aforementioned legislative condition of the installation plan.

However, as of July 6, 1995, at the time of the enforcement of the former Waste Promotion Act, the Intervenor, who is an agency installing waste disposal facilities, did not obtain the approval of installation of the instant incineration site under the former Wastes Control Act, and there is no evidence to acknowledge that the instant incineration site was installed. Thus, the instant incineration site does not constitute a waste disposal facility installed at the time of enforcement of the former Waste Promotion Act as stipulated in paragraph (2) of the Addenda to the former Waste Promotion Act. However, as in the instant case, where the implementation plan for the housing site development project including the land use plan, etc. for waste disposal facilities, has already been approved at the time of enforcement of the former Waste Promotion Act, the site for the relevant waste disposal facility is merely

Therefore, there is no room to apply Article 2 of the Addenda to the former Waste Promotion Act to the instant waste disposal facilities, and there is no ground to delegate the authority to approve the installation of the instant waste disposal facilities to the Minister of Environment under Article 10(2) of the former Waste Promotion Act, and there is no ground to delegate such authority to the Defendant. Accordingly, the Defendant’s first disposition of this case is an administrative disposition by an unincorporated agency, and its defect is significant and obvious, and thus, is null

(2) However, the "legal interest to seek confirmation" under Article 35 of the Administrative Litigation Act, which is the subject of an administrative disposition, shall be acknowledged where there is a dispute between the parties as to the current rights or legal relations, and thereby, it is necessary and appropriate to confirm the existence of such legal relations by judgment for the reason that there is apprehension and risk, and therefore, it is necessary and appropriate to eliminate fears and risks. Thus, even if the first disposition is automatically null and void for the above reason, an administrative agency may take a new approval disposition through legitimate procedures. If the second disposition in this case is legitimate, if the second disposition in this purport is made legally, the legal interest to seek confirmation that the first disposition in this case is null and void shall also be deemed null and void (see Supreme Court Decision 200Du2495, Apr. 23, 2002).

(3) Therefore, as to whether the second disposition of this case was lawful, the procedures for the selection of location and the approval of the installation plan of facilities shall be conducted in order to install the incineration house of this case. First, as seen earlier, the procedures for the selection of location are approved of the implementation plan for the housing site development project which is deemed to have been determined by the former Urban Planning Act under the Housing Site Development Promotion Act, and thus, the procedures for the selection of location under the former Waste Promotion Act under Article 10 (3) of the former Addenda to the former Waste Promotion Act can be deemed to have been conducted. Meanwhile, under Article 10 (1) of the former Waste Promotion Act, which is the legal basis of the second disposition at the time of the second disposition, the agency installing waste disposal facilities shall determine and publicly announce the location of waste disposal facilities, and allow public perusal of the drawings. However, the amended provisions of Article 10 (3) of the Addenda to the same Act provide that the first selection of waste disposal facilities after the enforcement of this Act shall apply from the date of the first designation of the site.

Next, as to whether the approval procedure for a plan for the installation of a facility was lawful, Article 35 (2) 2 of the former Enforcement Decree of November 16, 2004 was delegated by the Minister of Environment with the authority of the Defendant to approve the plan for the installation of a waste disposal facility. The above contents are the matters provided for in Article 11-3 (2) and (4) of the former Waste Promotion Act and Article 12 of the former Enforcement Decree of the former Enforcement Decree of the Act. The defendant issued the second disposition of this case that approved the plan for the installation of a facility on December 1, 2004 on the condition that it should comply with the pertinent laws and regulations, such as promoting the plan for the support, etc. for areas affecting waste disposal facilities as soon as possible. Thus, the second disposition of this case is conducted through legitimate procedures as provided for in Article 11-3 of the New Waste Promotion Act.

(4) The plaintiffs asserted that the above disposition was unlawful since they did not separately conduct the environmental impact assessment for the second disposition even after five years have passed since the existing environmental impact assessment was conducted. However, according to Article 23(1) of the former Act on Assessment of Environmental, Traffic, Disasters, etc. and Article 23(1) of the Enforcement Decree of the same Act, if a project implementer fails to commence the project within five years after being notified of the contents of consultation by the head of approving agency, the project implementer is re-preparation the environmental impact assessment report. As seen above, as long as the intervenor commenced the construction of the incineration of this case after receiving the first disposition from the defendant on August 2, 1996, and the certificate of completion inspection was issued on September 25, 200, it was unnecessary to prepare a separate environmental impact assessment for the second disposition of this case by the defendant on September 25, 200, as seen above, since the intervenor submitted not only the existing environmental impact assessment report at the time of applying for the second disposition of this case, but also the revised report was submitted later.

In addition, the plaintiffs argued to the effect that the second disposition of this case is unlawful since the public announcement of the gathering of residents' opinions and the residents' presentation at the time of the second disposition of this case is formal and does not go through the procedures of residents' substantial opinion gathering. However, as seen earlier, as long as the above disposition of the approval of the implementation plan of the housing site development project is deemed to have been made in accordance with the procedures stipulated in the New Promotion Act due to the approval of the implementation plan of the housing site development project, the above procedures for collecting residents' opinions

3. Conclusion

Therefore, the claim for nullification of the first disposition of this case shall have lost its interest in the lawsuit, so the lawsuit of this case shall be dismissed as unlawful without any need to further examine other arguments. Since the judgment of the court of first instance differs from this conclusion, it shall be revoked, and the burden of litigation costs shall be borne by the defendant under Article 8 (2) of the Administrative Litigation Act and Articles 99 and 105 of the Civil Procedure Act. It is so decided as per Disposition with respect to the burden of litigation costs.

Judges Jeong-ju (Presiding Judge)