2017Du33664, Revocation of Disposition of Denial of earth or stone collection

A Stock Company

Simsan City

person

1. B

2. C.

3. D;

4. E.

5. F;

6. G.

7. H;

8. I

9. J;

10. K;

11. L.

12. M;

13.N

14. 0

15. P;

16. Q.

Daegu High Court Decision 2015Nu6621 Decided January 6, 2017

June 15, 2017

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

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

1. The collection of earth and rocks in forests directly affect the maintenance of the national land and nature and the preservation of the environment, and even if such collection does not constitute a restricted area for earth and rocks as prescribed by statutes, the permitting agency may refuse to grant permission when it is deemed necessary for important public interests, such as the maintenance of the national land and nature and the preservation of environment, taking into account the current state, location, surrounding circumstances, etc. of the land subject to the application for permission for earth and rocks, given that such collection is not an restricted area for earth and rocks (see, e.g., Supreme Court Decision 2009Du4487

2. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

A. On September 16, 2013, the Plaintiff filed an application with the Defendant for permission to collect earth and stones (hereinafter referred to as “instant application”). B. The Defendant rejected the Plaintiff’s application on the following grounds (hereinafter referred to as “instant disposition”) on January 1, 2014.

(1) It is determined that permission to collect earth and stones may cause public damage to X local residents, such as noise, vibration, dust dust, traffic inconvenience, river pollution, infringement of the right to pursue happiness, etc. much greater than damage to private interests caused by non-permission of the instant application. Local residents of 2 X file a civil petition against permission to collect earth and stones on the grounds of noise, vibration, dust dust, traffic inconvenience caused by large vehicles, environmental destruction, etc.

C. On August 10, 1994, W Co., Ltd. (hereinafter referred to as “W”) obtained permission from the Defendant for collecting earth and rocks with respect to four parcels outside the Z of Busan Metropolitan City by December 31, 2002. After obtaining the permission period, it obtained permission for collecting earth and rocks with respect to the period of permission for collecting earth and rocks until December 31, 2009.

D. Around November 2010 and around 2010, W obtained approval for restoration design from the Defendant on October 31, 2015, and obtained permission for the collection of soil and stones for the prevention of disasters and the restoration of 28,678 meters in the existing permitted area during the restoration period, but did not properly implement restoration work within the restoration period, which extended the restoration period again for five years. On November 28, 2013, W was issued an improvement order by the Defendant on the ground that the installation of facilities to control fugitive dust and measures are not in conformity with the standards.

E. The owner of the instant land located in approximately 900 meters away from the W Quarrying site is the wife of W and W representative director, and W and the Plaintiff is actually controlled and operated by the same person.

F. Meanwhile, around 4 km away from the place where the instant application was filed, there are additional sites for collecting earth and rocks between AF and AH, and there have been repeated changes in name and extension of the period since the 1980s with respect to each of the above sites for collecting earth and rocks.

G. The instant application is connected to the national highways No. 25 via AC village, along with a sound forest where pine trees, cele trees, celebal trees, and celebs, etc. are being flown nearby the forest.

H. The instant application is located far from the southwest AB Village and approximately 800 meters southwest AC Village and approximately 2 km northwest AC Village and the northwest AC Village. A small-scale household located at a distance of about 400 to 500 meters northwest of the instant application site. A large number of X residents, including neighboring residents, are opposing new permission to collect earth and stones by asserting damages, such as dust, noise, falling, crops damage, traffic inconvenience, environmental damage, etc. due to existing permission to collect earth and stones.

I. The noise expected after permission to collect earth and rocks on the instant application exceeds environmental standards in some areas, and there are insufficient parts in the environmental damage reduction measures proposed by the Plaintiff.

3. Examining the above facts in light of the legal principles as seen earlier, it is determined as follows.

A. Upon acceptance of the application of this case, the forest land in the instant application site where pine trees, celeb trees, celeb trees, and celebine trees, etc. are destroyed over a long-term period, and large trucks are expected to increase inconvenience for nearby residents due to dust, noise, vibration, and national highways generated in the quarrying site.

B. The surrounding areas of the instant application have accumulated side effects due to the gathering of earth and rocks for more than 30 years since the 1980s, where the gathering of earth and rocks has been continued in the three sites where the gathering of earth and rocks has been conducted. In such a situation, it seems that W did not complete the restoration work of the existing quarrying site whose permitted period has expired, and filing the instant application again on the ground of the Plaintiff would result in a strong reflection by neighboring residents.

C. Although air quality, water quality, noise, and vibration in the vicinity of the instant application site do not exceed the current environmental standards and most anticipated values after permission to collect earth and rocks meet the environmental standards, it is nothing more than one of the various circumstances to be considered when determining whether the nearby pollution level exceeds the environmental standards when determining whether to permit the collection of earth and rocks.

D. W has obtained an extension of the period of restoration work again by 2020 when W did not complete the existing five-year restoration work. If W has granted new permission to collect earth and rocks to the Plaintiff in a special relationship with W, it would be likely that the long-term forest would be damaged and the restoration would not be properly performed. Considering the circumstances that WW would not meet the standards for installation of facilities to control dust scattering and measures, it is doubtful whether the Plaintiff would properly implement the measures for reducing the amount of reduction set out in the small environment impact assessment.

E. In full view of these points, it is recognized that permission to collect earth and rocks on the instant application form is likely to cause environmental damage caused by dust, noise, vibration, etc. to neighboring residents, and further, permission to collect earth and rocks, which are likely to cause environmental damage, in the situation where neighboring residents have complained of environmental damage due to the collection of earth and rocks on the existing quarrying site, is necessary for a significant public interest to deny such permission by increasing the suffering of neighboring residents. In addition, considering the special relationship between the Plaintiff and W, the circumstances cited by the Plaintiff alone do not seem to violate the principle of proportionality because the disadvantage of the Plaintiff caused by the instant disposition is considerably larger than the necessity of public interest to prevent environmental damage, etc

4. Nevertheless, on the premise that it is difficult to deem that the permission to collect earth and stones on the application site of this case is likely to cause dust, noise, and vibration exceeding the tolerance limit to neighboring residents, the lower court determined that the instant disposition was in violation of the law of deviation or abuse of discretionary authority, on the ground that it is insufficient to recognize the necessity for important public interest to deny the application of this case.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to deviation from and abuse of discretionary power, which affected the conclusion of the judgment. The grounds for appeal assigning this error are

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Cho Jong-hee

Chief Justice Park Sang-ok