[1] Whether the construction permission requirements within the specific use area under the National Land Planning and Utilization Act belong to the area of the administrative agency's discretionary determination (affirmative), and the subject of and the criteria for the judicial review of such requirements

[2] The method of examining whether the administrative agency’s permission to engage in development activities likely to cause environmental damage or pollution is a deviation or abuse of discretionary authority / The matters to be considered in the review and determination thereof / Whether the administrative agency’s initial prediction or assessment and opinion on some different contents were presented can be deemed unlawful solely on the ground that the administrative agency’s opinion on appraisal was presented (negative)

[1] In full view of Article 11(1) and (5)3 of the Building Act, Article 56(1)1 and 2, Article 58(1)4 and (3) of the National Land Planning and Utilization Act, and Article 56(1) [Attachment Table 1-2] subparagraph 1(d)(2) of the Enforcement Decree of the National Land Planning and Utilization Act, a building permit within a specific-use area prescribed by the National Land Planning and Utilization Act has the nature of a building permit under Article 11(1) of the Building Act and the permission for development activities under Article 56(1) of the National Land Planning and Utilization Act. Since there are many parts of the criteria for permission for development activities and prohibition as indefinite concepts, the issue of whether the criteria for permission for development activities and prohibition are prescribed as indefinite concepts belongs to the area of the discretion of an administrative agency. Therefore, in principle, the judicial review of the administrative agency is subject to the determination of whether there is any possibility of deviation or abuse of discretion, and the principle of proportionality and equality.

[2] When examining whether there is deviation or abuse of discretionary authority with regard to permission of an administrative agency for development activities likely to cause environmental damage or pollution, it shall be carefully determined by comprehensively taking account of the legislative purport of various regulations on the utilization status and balance of rights and interests among interested parties who have conflicting interests with those of the relevant region, such as living environment, and the protection of environmental rights. Therefore, the review and judgment clearly state environmental rights as constitutional fundamental rights and imposes an obligation on the State and citizens to endeavor to preserve the environment at the same time based on the constitutional ideology of the Framework Act on Environmental Policy (Article 35(1)), and specifically setting the rights and obligations of the citizens to endeavor to preserve the environment and the duties of the State and local governments, and the business entities (Articles 1, 4, 5, and 6), and the State, local governments, business entities, and citizens should first consider environmental preservation in cases where all activities using the environment are performed (Article 2), and there is a need to readily conclude that there is a lack of reasonable or unreasonable consideration of the circumstances or influence of an administrative agency, such as the State, local governments, and public agencies’s.

[1] Article 11(1) and (5)3 of the Building Act; Article 56(1)1 and 2 of the National Land Planning and Utilization Act; Article 58(1)4 and (3) of the National Land Planning and Utilization Act; Article 56(1) [Attachment 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act / [2] Article 35(1) of the Constitution of the Republic of Korea; Articles 1, 2, 4, 5, and 6 of the Framework Act on Environmental Policy; Articles 56(1) and 58(1) of the National Land Planning and Utilization Act; Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2004Du6181 Decided July 14, 2005 (Gong2005Ha, 1353) Supreme Court Decision 201Du29205 Decided December 13, 2012

Plaintiff (Attorney Choi Jong-soo, Counsel for the plaintiff-appellant)

Young-gun Gun (Law Firm Hinol, Attorneys Jeon Young-chul et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2015Nu6537 decided September 29, 2016

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

The grounds of appeal are examined.

1. According to the Building Act, a person who intends to construct a building shall obtain permission from the head of a Si/Gun, etc. (Article 11(1)); permission for development activities under Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”); and Article 56(1) of the National Land Planning and Utilization Act provides that construction of a building (Article 11(5)3) and alteration of the form and quality of land (Article 58 of the National Land Planning Act) shall be limited to development activities subject to permission from the head of a Si/Gun, etc. subject to permission; and Article 58 of the same Act provides that the head of a Si/Gun, etc. shall grant permission only if the application for permission for development activities satisfies the standards for permission (Article 11(1) and the standards are prescribed by Presidential Decree, taking into account the characteristics of a region, development status of infrastructure, etc.; standards for permission for development activities related to surrounding areas may be prescribed by Presidential Decree according to the land use plan or the actual state of surrounding areas, such as the height and pollution of soil and vibration or surrounding areas.

Comprehensively taking account of the above provisions, a building permit within a specific-use area as prescribed by the National Land Planning and Utilization Act shall be deemed to have the nature of a building permit under Article 11(1) of the Building Act and a building permit under Article 56(1) of the National Land Planning and Utilization Act. Permission for development activities shall be deemed to have the same nature of a building permit. Whether the criteria for a permit and a prohibition requirement are prescribed as an indefinite concept belongs to the area of discretionary judgment of an administrative agency. Therefore, the judicial review thereof shall be limited to whether there is deviation or abuse of discretionary power, in principle, taking into account the room for discretion as to public interest judgment of an administrative agency. Whether there is a violation of the principle of mistake of facts and proportionality and equality, etc. (see Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 201Du29205, Dec. 13, 2012, etc.).

In particular, when examining whether a discretionary authority is abused or abused with respect to permission of an administrative agency for development activities that are likely to damage or pollute the environment, the determination should be made carefully by comprehensively taking into account the legislative purport of various regulations on the utilization status and balance of rights and interests among interested parties who have conflicting interests with those of the relevant region, such as living environment, and the protection of environmental rights. Therefore, the determination and determination should be made by stipulating that “All citizens shall have the right to live in a healthy and pleasant environment, and the State and citizens shall endeavor to preserve the environment” (Article 35(1)) of the Constitution stipulates environmental rights as constitutional fundamental rights and at the same time, the State and citizens shall have the duty to endeavor to preserve the environment. ② Based on the constitutional ideology of the Framework Act on Environmental Policy, the State and local governments shall specifically determine the rights and obligations of the citizens to endeavor to preserve the environment and the obligations of the State and local governments, and the business entities (Articles 1, 4, 5, and 6), the State, local governments, and citizens shall give priority to environmental preservation when performing all acts using the environment (Article 2).

2. The lower court acknowledged the facts as indicated in its reasoning, such as the fact that the Plaintiff applied for a construction permit to newly construct the instant mooring house in a scale of 80,000,000, but the Defendant rejected the application on the ground that environmental pollution, such as malodor, noise, soil contamination, and dust scattering, is likely to cause damage to nearby villages, and thus, found that the instant disposition was unlawful as it deviates from and abused the discretionary authority in violation of the principle of proportionality, by taking account of the following circumstances, etc.

① As a result of the appraisal of the degree of malodor generation in two locations of the two locations constructed by the so-called windowless map, the causes of malodor was measured at a point of 300 meters away from the fine level, and the Plaintiff’s site (hereinafter “the site in which the instant application was filed”) planned to construct the Gyeyang by the windowless drawing method is located far away from the nearest village and approximately 370 meters, considering that the possibility that the malodor that is likely to be generated in the valley of this case is relatively low is likely to reach the nearby village.

② The Plaintiff is planned to discharge the quality coming from the instant application site after going through the final storage site through U-party fluium in the opposite direction to the water system. The Plaintiff’s installation of the main inside and outside part of the fraternity with concrete in order to block the infiltration into soil, and discharged the valley by mixing it with spath and outside part without generating separate wastewater, and it is planned to treat it by entrustment to the outside. Therefore, there is no high possibility of water pollution.

(3) Where the degree and scope of malodor in the future exceeds the standards prescribed in the Malodor Prevention Act, it may be subject to ex post regulation through an improvement order, order to suspend operation, etc.

④ At least 20 Chang-guns had already been operated without any particular problem.

3. However, we cannot accept the above judgment of the court below as it is.

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

① Under the National Land Planning Act, a special-purpose area falls under a production management area, an agricultural and forest area, and the Gun roads are adjacent to ○○○ line, and the entire area is located in a ridge with higher area than the surrounding land, and the area surrounding the application site in this case is an open area. The surrounding areas of the application site in this case are typical rural village form, and farmland is included in the surrounding areas.

② According to the Ordinance on Areas where Livestock Raising of Mine-gun is Restricted, a person who intends to newly construct a stable shall obtain the consent of all the heads of households residing in an area within 300 meters from the planned site for new construction (Article 4(2)). The Plaintiff appears to have obtained the consent of one household residing within 300 meters from the site of the instant application. However, the Plaintiff, as seen above, has five villages within 1 km from the site of the instant application, and the instant application is located within 1 km from the boundary of the area where the necessary consent is to be obtained, and the instant application is located at the center of the said five villages. In addition, a reservoir located within approximately 650 meters away from the site of the instant application to the south.

③ According to the result of on-site inspection at the court of first instance, malodor may also be produced through the exchange apparatus installed in the ceiling, and even according to the judgment below, it cannot be ruled out the possibility that malodor may be produced during the opening of the exhaust apparatus, since any windowper, which is promoted by the Plaintiff, shall also be installed for the purpose of controlling temperature and dampness inside the valley. However, in view of the location and shape of the instant application site and its surrounding area, the land use status of the surrounding area, and the gradient of land, etc., if malodor is produced in the instant valley, there is no ground that may block malodor between the instant application site and its neighboring residential area, and thus, it is likely that it may directly affect neighboring residential areas according to the weather conditions, etc. in accordance with the weather conditions, etc.

④ The lower court, in cases where the degree and scope of malodor in the future exceeds the standards prescribed in the Malodor Prevention Act, can ex post regulation through an order for improvement, suspension of operation, etc., but there is a limit to the recovery of environment, such as residence, etc.

⑤ The Plaintiff filed an application for the instant building permit with the instant application indicating that it was planned to operate a large-scale 80,000 square meters of the number of raising livestock farms by constructing 3 buildings of the building area and the total floor area of 8,649.43 square meters, one manager, and one warehouse.

(6) On January 6, 2015, the Defendant rendered the instant disposition rejecting an application for building permit on the ground that the instant application was located in the ridge of the boundary of the neighboring village, and that it is highly likely to cause damage, such as malodor, noise, soil contamination, and scattering dust, and that it failed to meet the adverse effects on water system, such as △△ reservoir, and the risk of contamination of agricultural water due to flooding or discharge, such as flooding

7. It seems that there is no large-scale mass field operated in the Gwangjin-gun ( Address omitted) located in the area surrounding the instant application site.

B. Examining these circumstances in light of the aforementioned legal principles, such as the provision of national land planning statutes and the purport of the Constitution of the Republic of Korea and relevant laws on environmental rights, and the subject of judicial review on the discretionary judgment of an administrative agency, it is difficult to readily conclude that the Plaintiff’s application for permission of construction did not meet the requirements for permission of development on the grounds of concerns over environmental pollution, such as malodor, noise, soil contamination, and scattering dust, and thus, the Defendant’s rejection of the application constitutes an unlawful act of deviation or abuse of discretionary power, such as a violation of the principle of proportionality. Nevertheless, the lower court erred by misapprehending the legal doctrine on the determination of deviation or abuse of discretionary power in

4. Therefore, 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 Kwon Soon-il (Presiding Justice)