Whether there is a legal interest in dispute over the disposition of permission for development activities to the "person who proves that the individual benefits in his/her living environment exceed the tolerance limit or are likely to be infringed by the development activities" other than the residents of the area or surrounding area where the development activities

Articles 56(1) and 58(1) and (3) of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201); Article 56(1) [Attached Table 1-2] subparag. 1(d)(2) of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 22467, Nov. 2, 2010); Article 12 of the Administrative Litigation Act

Plaintiff (Attorney Choi-tae et al., Counsel for the plaintiff-appellant)

Gyeonggi-do Administrative Appeals Commission

Defendant Intervenor (Law Firm Open, Attorneys Jeong Woo-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu19955 decided March 7, 2013

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

The grounds of appeal are examined.

1. A third party, who is not the direct counter-party to an administrative disposition, filed a lawsuit seeking revocation on the ground that his/her environmental interest is infringed or is likely to be infringed upon by the administrative disposition, shall be acknowledged as standing to sue if his/her environmental interest is individually, directly, and specifically protected by the relevant laws and regulations or the relevant laws and regulations: Provided, That in cases where the scope of the right of influence that is anticipated to be infringed on the environment due to the project, such as the act done by the administrative disposition, is specifically stipulated in the relevant laws and regulations or relevant laws and regulations, it may be anticipated that the residents in the affected area will cause direct and serious environmental damage due to the relevant disposition. Such environmental benefits are directly and specifically protected by the individual residents, and barring special circumstances, standing to sue is recognized as being recognized as being infringed on or threatened with the environmental interest under the laws and regulations presumed to be protected by the law, and the residents outside the affected area must prove that the environmental interest has been infringed or is likely to be infringed on the environmental interest exceeding the limit of tolerance prior to the relevant disposition (see, e.g., Supreme Court en banc Decision 20016Du16.

2. A. The purport of Article 56(1) and Article 58(1) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “former National Land Planning Act”) which is a legal basis for the disposition of permission to engage in development activities on the instant application site is that, as one of the criteria for permission to engage in development activities, the residents’ interests under subparagraph 1(d) [Attachment 1-2] of [Attachment 1-2] of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 22467, Nov. 2, 2010; hereinafter “former Enforcement Decree”) directly and indirectly infringe on or are likely to infringe on the living environment of the relevant area and its surrounding area, such as air pollution, water pollution, noise, vibration, destruction, dust, etc., or their interests arising from such development activities, and that such act may not be directly and indirectly affected by the form and quality of the relevant land.

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

1) The content of the instant permission for development activities is that the Intervenor would permit the alteration of the form and quality of the instant application site, which is the front answer, to set up an access route with a width of 6 meters from the forest land owned by the Plaintiff (hereinafter “instant detached housing site”) to the packing roads of neighboring villages located south and south (hereinafter “instant access route”) located far from approximately 168 meters away from the forest land owned by the Plaintiff (hereinafter “instant detached housing site”).

2) The above neighboring village contains eight separate houses, and the two separate roads are constructed in the direction of South and North Korea on thewest side of the village, and the access roads (e.g., packing roads) to the above neighboring village are connected to the direction of the west. The access roads are divided from the beginning of the village to the upper and lower roads, and they are divided into “Y”. The above “Y” access roads up to the end of the package in the vicinity of the detached houses located on the east side of each of the above neighboring village (hereinafter “existing roads”), and each of the two main roads connected to “Y” and “Y” are connected to the upper and lower roads (on the north side of the upper roads, the upper roads, and the lower roads, both of which are connected to the upper and lower roads). The above eight separate houses are linked to the upper and lower roads (the middle side of the upper roads, the lower roads, and the lower roads).

3) The part which ends on a lower road’s packaging is connected with a non- packing channel (existing current status roads) with a width of which one vehicle is able to pass, leading to a mountain village leading to a mountain village in which walksan is going through immediately below the site of the instant detached house (the south side of the site).

4) The Plaintiff is a person who owns and resides in a neighboring village, and the ownership of the house is in the middle of the three-way united united united united united united united united united in Dong-ro located adjacent to the south for a long time. The upper path is lower than the two-way unit and the lower distance is 22 meters, and the application and the lower distance is 22 meters. Magsan was mainly engaged in the mountain development by using a long path, which is the front path of the Plaintiff’s house.

5) Meanwhile, the upper end of the existing opening road is obstructed as it is from the end of the package. The upper end of the existing opening road is connected to the instant detached house site by the package of the upper road which was closed upon the opening of the entrance road. As a result, around 40-50 meters road is newly constructed at the place where the passage of the instant road was unfolded, and the remaining side of the said road is expanded and packaged by the existing current status. The upper end of the road leads to the current status of the existing non-packaged road and the mountain trails. The road parking lot, etc. is not scheduled at the end of the road’s packaging.

6) The instant detached house site and the instant application form consisting of neighboring villages and dry paddy field between the south and west of the instant site. The east and north of the instant site form a forest leading to dry mountain as the uppermost is high.

7) As to the instant application for permission for development activities, a non-permission disposition was rendered on the ground that the original application price did not meet the requirements for permission beyond the standard altitude. However, the Defendant rendered the instant decision revoking the non-permission disposition on the grounds of the principle of trust protection, thereby making the instant decision in accordance with the purport of the relevant decision. Since the forests and fields around the instant application site are located at a higher level than the instant application site, it is highly likely that development activities may be additionally conducted because it is difficult to meet the requirements for permission for development activities.

C. The following circumstances are revealed with respect to the content, degree, and scope of benefits that may be caused by the development act, and the relationship between the instant development act and the Plaintiff, etc., from the aforementioned factual basis regarding the content and scale of the instant development act, the location of the Plaintiff’s residence, and the possibility of spreading the development act.

1) In order to open an access road to the site of the instant detached house, the instant development act is not likely to cause direct destruction or harm to the ecosystem, such as damaging surrounding forests and fields, barring any special circumstance, in light of the content and scale thereof and the current status of the use of surrounding land. However, it is likely that the development act itself may infringe on the living benefits of residents in the area affected by noise, vibration, dust, and smoke, etc. by entering the site of the instant detached house or by driving a vehicle for the operation of the said width, and thereby causing noise, vibration, dust, and smoke, etc.

2) However, the instant development activities are merely merely to open an access road to a detached house, and the roads scheduled to be opened are neighboring the instant detached house site. Thus, a number of ordinary vehicles, other than the residents of the instant detached house site, do not seem to have a high possibility of passage. Although there is a possibility that a lux may use the roads to be newly constructed by using a vehicle, the number of vehicles would not seem to have been much because the installation of a parking lot is not scheduled at the entrance of a mountain path.

3) Moreover, as seen earlier in the background of the instant development permit disposition, there seems to be a low possibility of further development around the instant application site.

4) Based on these circumstances, considering the type, purpose of use, frequency, etc. of vehicles anticipated to move into the instant road, the Plaintiff’s place of residence located far from two different houses or existing construction roads from the access road in the instant case is unlikely to be likely to infringe on a pleasant living environment interest due to noise, vibration, dust, smoke, etc. that may arise from the passage of vehicles into the instant access road.

D. Examining these circumstances in light of the legal principles as seen earlier, it is difficult to readily conclude that the Plaintiff’s residents within the influence area that may infringe on the living environment benefits expected to be established by the entry into the instant road and that the development act constitutes residents in the relevant area or surrounding area. Furthermore, it is difficult to view that the Plaintiff sufficiently proves that the development act conducted by the permission of the instant development act exceeds the pre-disposition and the limit of admission, and thus, it is likely that the Plaintiff

3. Nevertheless, without examining the above specific circumstances, the lower court determined that the Plaintiff has a legal interest in dispute over the adjudication of this case revocation of the Intervenor’s permission of development permission application, on the sole basis of the following circumstances, including the location and surroundings of the instant application site, the necessity to preserve the natural ecosystem, general contents on the possibility of additional development after the instant development activities, and the distance between the Plaintiff’s residence and the instant application site, etc.

Therefore, the lower court should further examine whether the Plaintiff has legal interest in dispute over the instant adjudication by examining the specific circumstances as seen earlier and other factors to be considered additionally. Therefore, the lower court erred by misapprehending the legal doctrine on standing to sue in an appeal litigation and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case 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 Lee In-bok (Presiding Justice)