In a case where Gap filed an application for a building permit to newly construct pigs on the land located approximately 723 meters away from the densely concentrated residential area after purchasing the land, but the head of the Gun rejected the construction of pigs on the ground that the head of the Gun “the land is located within the restricted area for raising pigs as determined 1,200 meters from the densely concentrated residential area in accordance with the delegation of Article 8(1)1 of the former Act on the Management and Use of Livestock Excreta,” the case holding that the restriction on the distance of pigs raising as prescribed by the above municipal ordinance is not unreasonable discrimination against the existing livestock breeding business operator or contrary to the principle of trust protection, in a case where the head of the Gun rejected the construction of pigs on the ground that “the land is located within the restricted area for raising pigs 1,200 meters from the densely concentrated residential area”

Article 8(1)1 of the former Act on the Management and Use of Livestock Excreta (Amended by Act No. 13526, Dec. 1, 2015)

Plaintiff (Attorney Jeon-soo et al., Counsel for the plaintiff-appellant)

Geumsan Gun (Law Firm Han field, Attorneys Kang Byung-jin et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2017Nu10331 decided July 20, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to Article 8(1)1 of the former Act on the Management and Use of Livestock Excreta (amended by Act No. 13526, Dec. 1, 2015; hereinafter “former Livestock Excreta Act”), the head of a Si/Gun/Gu may designate and publicly announce a specific area to restrict livestock raising in an area where restriction on livestock raising is deemed necessary among “area where the protection of the living environment in a residential area is required” for the preservation of the living environment of local residents or the preservation of the quality of water sources, as prescribed by municipal ordinance.

The purpose of this provision is to prevent damage to the living environment of neighboring residents from malodor, wastewater, air pollution, etc. caused by livestock raising by breaking a certain distance from a residential area. The above provision stipulates a detailed standard for the designation of a zone where livestock raising restriction is restricted by stipulating that the designation of a zone where the protection of the living environment in a residential densely-populated area is necessary for the purpose of preserving the living environment of local residents or preserving the quality of water sources. On the other hand, the detailed standard for the designation of a zone where livestock raising restriction is restricted is determined by ordinances by recognizing the need to be regulated in accordance with professional and technical judgment and policy considerations in accordance with the actual circumstances of each local government.

Accordingly, Article 3(1)1 [Attachment 2] of the former Ordinance on the Restriction of Livestock Raising of Geumsan-gun (amended by Ordinance No. 1996, Sept. 7, 2015; amended by Ordinance No. 2065, Nov. 23, 2016; hereinafter “instant Ordinance”) set a limitation on the distance from residential concentrated areas by type of livestock, and as for pigs, the minimum distance of restriction is 1,200 meters.

2. The court below found the following facts based on the evidence duly admitted.

A. According to the former Ordinance prior to the amendment of the instant ordinance (amended by the Ordinance No. 1996, Sept. 7, 2015), swine breeding restriction area was 400 meters from a residential densely concentrated area. However, as the aforementioned distance restriction is relatively narrow compared to neighboring local governments, the application for a building permit to build a stable in the Geumsan-gun was likely to become more narrow, and accordingly, there were many complaints filed by local residents who appeal for damages therefrom.

B. The Defendant, taking into account the foregoing circumstances, referred to the opinions of residents and farmers, and the current status of ordinances of other Sis/Guns, etc., and subsequently amended the instant Ordinance on September 7, 2015, such as the details prescribed by 1,200 meters from a residential densely-populated area, etc. The Defendant publicly announced “the instant topographical map” as prescribed in Article 2015-72 of the Geumsan-gun Notice on September 8, 2015 (hereinafter “instant topographical map”).

C. After purchasing the instant land around July 2015, the Plaintiff filed an application with the Defendant for a construction permit to newly build the instant land located approximately 723 meters away from the densely concentrated residential area on September 4, 2015.

D. On March 16, 2016, the Defendant rendered the instant disposition denying the construction of money companies on the ground that “the instant land is located within the zone where livestock raising is restricted as stipulated in Article 3(1)1 [Attachment 2] of the instant Ordinance.”

E. As of December 2, 2016, the average distance of restriction on the raising of livestock of the Si/Gun as of Chungcheong-do, Chungcheongnam-do, is 1,020 meters for pigs.

3. The lower court determined as follows on the basis of the above findings of recognition.

A. In full view of the purport of Article 8(1)1 of the former Livestock Excreta Act, the background and process of the amendment of the instant Ordinance, the severity of damage to the living environment suffered by neighboring residents due to malodor and wastewater generated in pigs, and the average distance of limitation on raising pigs of the Si/Gun, Chungcheongnam-do, Chungcheongnam-do, etc., the restriction on raising pigs prescribed by the instant Ordinance (1,200 meters from residential concentrated areas) cannot be deemed to have exceeded the bounds of delegated legislation prescribed by Article 8(1)1 of the former Livestock Excreta Act.

B. As long as the instant ordinance does not deviate from the bounds of the delegated legislation, it cannot be determined on the same basis as the existing livestock breeding business operator who obtained lawful permission for livestock breeding under the provision of the distance of restriction on livestock raising prior to the amendment of the instant ordinance and the new livestock breeding business operator subject to the subsequent amendment, and even if an area where the existing livestock breeding business operator obtained lawful permission under the previous ordinance became a new area subject to restriction on livestock raising pursuant to the instant amendment, it cannot be deemed unreasonable discrimination based on the same.

C. In full view of the fact that prior to the amendment of the instant Municipal Ordinance, the public announcement of the amendment and the hearing of residents’ opinions were made, the Plaintiff purchased the instant land after the public announcement of the amendment, the Plaintiff could have anticipated that the area subject to livestock raising restriction would be immediately expanded, and the transitional provision that requires the previous applicants to apply the previous Ordinance before the amendment does not necessarily require any transitional provision. As such, the public interest to be achieved through the instant Municipal Ordinance is much larger than the Plaintiff’s property disadvantage, the instant Municipal Ordinance or the instant disposition based thereon cannot be deemed as going against the principle of trust protection.

4. Examining the relevant statutes, legal principles, and records, the lower court did not err by misapprehending the legal principles on the limitation of delegated legislation, the principle of protecting trust, etc., contrary to what is alleged in the grounds of appeal.

5. Meanwhile, the Plaintiff asserted that the designation of a livestock breeding restriction zone under the instant ordinances has not yet become effective due to defects such as the violation of scale in the notice of the instant topographical map in the final appeal. However, according to the records, the Plaintiff did not have made the aforementioned assertion until the date of closing argument in the lower court. Therefore, the said assertion cannot be a legitimate ground for final appeal as a new argument

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)