(영문) 울산지방법원 2019.9.26.선고 2019구합5032 판결

On December 8, 2017, the Defendant confirmed that the new construction permission disposition of Dong and plant-related facilities on the ground of the 974 square meters of the Magsan-si, Ulsan-si, Ulsan-do (885 - 1) 2, and 974 square meters of the Magsan-si, Ulsan-do.

Reasons

1. Details of the disposition;

A. On September 7, 2017, D applied for a construction permit to build Dong/ve plant-related facilities ( stables) with a total floor area of 1,440 square meters on a parcel (885 - 1) 2,974 square meters (hereinafter referred to as “the site of this case”) outside 86, Seoyang-gu, Ulsan-gu, Ulsan-do, Ulsan-si, Ulsan-do, and obtained the construction permit on December 8, 2017 (hereinafter referred to as “the site of this case”).

B. On October 12, 2017, the Defendant issued to D permission to install livestock excreta discharge facilities to raise 121 marine in the instant application form.

C. The plaintiff A is a resident living in Ulsan-gun, Ulsan-gun, Ulsan-gun, who is responsible for the chairperson of the Village Countermeasures Committee against the instant disposition. The plaintiff B is a head of the residents living in the Gansan-gun, Ulsan-gun, and the plaintiff C is a person living in the ○○, a ○○, when the severe disability welfare was located near the place of the instant application, and operates the ○○○.

D. While Plaintiff A filed a petition with the Administrative Appeals Commission of Ulsan Metropolitan City for a trial seeking confirmation on the invalidity of the instant disposition, Plaintiff A received a dismissal ruling on November 23, 2018.

【Grounds for Recognition】

2. The plaintiffs' assertion

According to Article 8(1) of the Act on the Management and Use of Livestock Excreta (hereinafter referred to as the " livestock excreta Act") and Article 3(1) of the Ordinance on the Raising of Ulsan-gun, Ulsan-gu, Ulsan-do (hereinafter referred to as the "Ordinance of this case") which provides that the restriction on raising livestock shall be placed within 500 meters from the area where the protection of residential congested or living landscape is required in the event of raising at least 100 small livestock. However, D has a plan to raise 121 small cattle on the ground of the instant application site to be newly constructed on the ground of the instant application site. Since the instant application area is located within 500 meters from the date of the instant application, the Defendant rejected the instant application for new construction of the ground axis in accordance with Article 3(1) [Attachment Table] of the Ordinance of this case. Therefore, the instant Ordinance violates Article 3(1) [Attachment 3] of the Ordinance and thus, the instant disposition is null and void.

3. Relevant statutes;

As shown in the attached Form.

4. Judgment as to the defendant's main defense

A. The defendant's main defense

Since there is no direct and specific legal interest that is protected by the law based on the disposition of this case to the plaintiffs, the lawsuit of this case is unlawful as it was filed by those who do not have standing to sue.

B. Determination

1) Criteria for recognizing third party standing to sue

A third party, who is not the direct counter-party to an administrative disposition, seeking the cancellation or invalidity of his environmental interests, on the ground that such environmental interests are infringed or are likely to be infringed, is recognized as the right to sue to prove that his environmental interests are individually, directly and physically protected under the relevant administrative disposition-based laws and regulations or relevant laws and regulations, i.e., the legal interests. However, in a case where the scope of environmental rights anticipated to be infringed on by the project, such as the act done by the relevant administrative disposition in the relevant laws and regulations or the relevant laws and regulations, is specifically stipulated, it may be anticipated that the environmental interests would be caused directly and seriously by the relevant disposition, and such environmental interests are the direct and concrete interests that are individually protected against individual residents, and the right to sue to sue is recognized as being affected by the environmental interests presumed to be infringed or otherwise protected under the laws and regulations or the relevant laws and regulations, and the residents in the relevant administrative disposition should be presumed to be infringed on or likely to infringe on the environmental interests within 200, 2016.

2) The underlying provisions of the instant disposition and the contents of legal interest protected by the said disposition

The instant disposition is for the new construction of livestock pens, and its direct basis laws and regulations can be the basis laws and regulations for the disposition or relevant laws and regulations. Article 56 of the former National Land Planning and Utilization Act (amended by Act No. 15727, Aug. 14, 2018; hereinafter “former National Land Planning Act”) and Article 8(1) of the Livestock Excreta Act, which can be the basis for the restriction on construction of livestock pens, and Article 8(5) of the former National Land Planning and Utilization Act, which can be the basis for the restriction on construction of livestock pens.

A) Article 11(5)2 of the Building Act, which is a direct basis for the instant disposition, is deemed to have obtained permission for development activities pursuant to Article 56 of the National Land Planning and Utilization Act in the event that permission for construction is obtained. As such, in rendering the instant disposition, the Defendant satisfies not only the requirements for permission under the Building Act, but also the criteria for permission for development activities under the National Land Planning and Utilization Act, and Article 56(1) [Attachment 1-2] 1. (d) of the Enforcement Decree of the National Land Planning and Utilization Act pursuant to delegation under Article 58(3) of the former National Land Planning and Utilization Act [Attachment 1-2] 1. (2) of the Enforcement Decree of the National Land Planning and Utilization Act provides that “No risk of environmental pollution, water pollution, soil contamination, noise, vibration, vibration, dust, etc. shall occur in the relevant area and its surrounding areas due to development activities” as the criteria for permission for development activities.

The purport of the above provision is to protect individual benefits that can live in a pleasant environment without being affected by environmental infringement, compared before and by residents who enjoy environmental benefits, such as cultivating or growing crops, within a certain extent that is anticipated to cause direct contact environmental damage due to the permission of development by the instant disposition. Therefore, since the Act and the National Land Planning Act do not protect individual benefits that can live in a pleasant environment without being affected by environmental infringement (see Supreme Court Decision 2007Du16127, Apr. 15, 2010), residents living within a certain scope that is anticipated to be affected by the new construction of the instant cattle shed, or farmers of land within a certain scope, shall be deemed to constitute individual and specific benefits protected by the Building Act and the National Land Planning Act regarding the action of the instant disposition, the environmental benefits arising from the action of the instant disposition shall be deemed to be the individual and specific interests protected by the Building Act and the National Land Planning Act, and such economic benefits shall not be deemed to be directly protected by the general and indirect interests of the general public.

Therefore, neighboring residents and neighboring farmers can be recognized as highly qualified by proving that the establishment and operation of the livestock shed in this case is likely to infringe or infringe on environmental interests.

B) In addition, the instant disposition is against livestock pens, and pursuant to Article 8(1) of the Livestock Excreta Act, the head of a Si/Gun/Gu determines that the restriction on livestock raising may be restricted by designating and publicly announcing a specific area as prescribed by municipal ordinance of the relevant local government, and that the restriction on livestock raising may be limited pursuant to Article 3(1) of the instant municipal ordinance upon delegation, as to livestock pens raising more than 100 cattles, in which the boundary of the residential densely-populated area and the boundary of the area requiring the protection of the living environment are within a 50-meter radius from the boundary of the area requiring the preservation of the living environment of local residents or the preservation of the quality of water sources.

As above, the purport of the Livestock Excreta Act and the instant Ordinance stipulating a certain distance from the residential congested area and the area in need of protection of living environment as an area subject to restriction on raising of livestock is to protect the individual interests in which neighboring residents and users of facilities in need of protection of living environment can live in a pleasant environment without being affected by environmental infringement beyond the acceptable limit compared to relocation. Thus, residents living in the vicinity of the instant application site can be recognized as standing to sue by proving that the establishment and operation of the livestock shed in this case may infringe or threaten to infringe on environmental interests due to the construction and operation of the livestock shed.

3) Whether the plaintiffs' standing to sue is recognized

In addition to the purport of Gap evidence 3-1 and Eul evidence 6's each statement and video, it can be acknowledged that the distance from the outer boundary line of the plaintiff A and B residing in B to the boundary line of the application site of this case is about 530 meters. The fact that the distance from the boundary line of the plaintiff C's residents to the new site of this case is about 200 meters.

Therefore, the residence of Plaintiff A and B appears to be located more than 530 meters away from the date of the instant application. Thus, it cannot be presumed that Plaintiff A and B's environmental interest would be infringed due to the construction of a stable at the instant application site. Moreover, if Plaintiff A and B were to be newly constructed in the instant application site, it is insufficient to deem that Plaintiff A and B may cause or threaten any infringement exceeding the tolerance limit in the residential environment of Plaintiff A and B, and there is no other evidence to recognize it. Accordingly, it is difficult to deem Plaintiff A and B as standing to sue.

Meanwhile, ○○○○○, a welfare facility for persons with severe disabilities residing and operated by Plaintiff C, is not listed as the criteria for determining the boundaries of the areas requiring the protection of living environment under Article 3(1) [Attachment Table] of this Ordinance. However, in light of the fact that Article 3(1) of the Ordinance of this case sets the restricted area for raising from the area requiring the protection of living environment within 500 meters, Plaintiff C, who resides in the ○○○○○○○○ located at a distance of 200 meters from the place of the instant application, may seriously infringe environmental benefits due to malodor, etc., and thus, Plaintiff C shall be deemed qualified to sue.

4) Sub-decisions

Therefore, both Plaintiff A and B’s lawsuits are unlawful, and Plaintiff C’s lawsuit is legitimate, and the prior defense against Plaintiff A and B is reasonable, and the prior defense against Plaintiff C on the merits is without merit. 5. Determination as to the invalidity of the instant disposition is without merit.

A. Relevant legal principles

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and is objectively apparent. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration should also be made on the characteristics of the specific case itself at that time. Meanwhile, in a case where an administrative agency takes an administrative disposition by applying a provision of a law to a certain legal relation or factual relationship, it is clearly stated that the legal principle that the provision of the law cannot be applied to such legal relation or factual relationship, and even if there is no room for dispute over the interpretation of the law, if an administrative agency takes a disposition by hostilely stating the above provision, it shall be deemed that the defect is significant and obvious, but the legal principle that the provision of the law cannot be applied to such legal relation or factual relation is not clearly revealed, and even if there is room for dispute over the interpretation of the law, it cannot be said that the defect is merely a mistake in the fact of the requirement of the administrative disposition.

B. Determination

In light of the above legal principles, even if there is a defect in the disposition of this case, it cannot be said that the defect is evident even if there is a defect in the disposition of this case. Accordingly, the disposition of this case cannot be deemed null and void.

1) Under Article 3(1) of the Ordinance of this case, at least five households in a residential densely-populated area are composed of five households, and the number of households is determined by the number of detached houses and apartment houses under the Building Act. However, the defendant deemed that only a detached house and apartment house under the Building Act except illegal buildings, such as an unauthorized building, and a "household, which is a unit of a residential closely-populated house," and based on this, determined that the residential densely-populated area was not within 500 meters from the place of application for this case.

It is true that there is a need to protect the living environment of residents of illegal buildings, such as an unauthorized building and an unauthorized building. However, considering that illegal buildings, such as an unauthorized building, are highly likely to be removed later, there is room to interpret that they do not correspond to a "household requiring the protection of living environment in relation to the construction of a stable." Since there is no Supreme Court decision that an illegal building also constitutes a "household, which is a unit of a house located in a district where a house is located in a district where a house is located." Thus, there is room for dispute over whether an illegal building constitutes a "household, which is a unit of a house located in a district where a house is located in a house is located in a district where a house is located in a house is located in a district where a house is located in a house is located in a district where a house is located in a house. Therefore, even if Article 3(1) [Attachment Table] of the Ordinance of this case can be viewed as excluding an illegal building in a single house and a number of apartment houses under the Building Act, as long as there is room for dispute in interpretation, it cannot be objectively viewed that the disposition of this case.

2) Article 3(1) [Attachment Table] of the instant Municipal Ordinance lists publicly-used establishments, hospital-level medical institutions, (seniors), long-term care institutions, etc., which are the criteria for determining the boundaries of areas requiring the protection of living environment. However, the said Municipal Ordinance does not separately classify the facilities as the criteria for determining the boundaries of areas in need of the protection of living environment. Therefore, the Defendant cannot return the building permit for construction of stables solely on the ground that ○○○○○○ source, who is not listed in the facilities requiring the protection of living environment in [Attachment Table] as the criteria for determining the boundaries of areas in need of the protection of living environment, is located within the area requiring the protection of the living environment from the site of the instant application, on the ground that the instant application is located within the area where the livestock raising restriction zone stipulated in the said Municipal Ordinance.

3) Even in comparison with the institutions listed as the criteria for determining the boundaries of areas in need of the protection of living environment under the above Municipal Ordinance, there is room to view that it is unreasonable to include heavy disability facilities at the time when they are the criteria for determining areas in need of the protection of living environment due to the lack of a significant need for the protection of the living environment under the above Municipal Ordinance. However, in interpreting the above Municipal Ordinance, insofar as there is no clear legal doctrine that the facilities with severe disability should be viewed as the same as the publicly used establishments, hospital level medical institutions, and long-term care institutions for the aged, the Defendant’s construction of the above Municipal Ordinance and construction of the above Municipal Ordinance, and thus, even if the disposition of this case was rendered, it cannot be deemed objectively clear that the defect is objectively evident.

6. Conclusion

Therefore, the plaintiff A and B's lawsuit is unlawful, and all of them are dismissed, and since the plaintiff C's claim is not reasonable, it is dismissed. It is so decided as per Disposition.

Judges

Judges Gangwon-do;

Judges Lee Jae-py

Judge Lee Jong-soo

Site of separate sheet

Relevant statutes

Eargue Building Act

Article 11 (Building Permits)

(1) A person who intends to construct or repair a building shall obtain permission from a Metropolitan Autonomous City Mayor, a Special Self-Governing Province Governor, or the head of a Si

The building shall be received: Provided, That the Special Metropolitan City shall have buildings the use and scale of which are prescribed by Presidential Decree, such as buildings with 21 floors or more.

(b) Permission from the Special Metropolitan City Mayor or a Metropolitan City Mayor shall be obtained to construct a Metropolitan City.

(5) A building permit granted under paragraph (1) shall be deemed a permit granted or a report filed under the following subparagraphs, and the construction of a factory:

In cases of water, relevant Acts shall be governed by Articles 13-2 and 14 of the Industrial Cluster Development and Factory Establishment Act.

Authorization, permission, etc. shall be deemed to have been granted.

3. Permission for development activities under Article 56 of the National Land Planning and Utilization Act;

[Attachment] The former National Land Planning and Utilization Act (amended by Act No. 15727, Aug. 14, 2018)

Article 56 (Permission for Development Activities)

(1) A person who intends to engage in any of the following activities prescribed by Presidential Decree (hereinafter referred to as "development activities") shall obtain permission (hereinafter referred to as "permission for development activities") from the Special Metropolitan City Mayor, Metropolitan City Mayor, Metropolitan Autonomous City Mayor, Special Self-Governing Province Governor, Special Self-Governing Province Governor, or the head of a Si/Gun: Provided, That this shall not apply to any activity under an urban or Gun planning project:

1. Construction of buildings, or installation of structures;

2. Changing the form and quality of land (excluding changing the form and quality of land for farming, as prescribed by Presidential Decree);

3. Gathering soil and rocks;

4. Dividing land (excluding the partitioning of a site on which a building is located);

5. Piling up goods within the green area, control area or natural environment conservation area for at least one month.

Article 58 (Standards, etc. for Permission for Development Activities)

(1) The Special Metropolitan City Mayor, Metropolitan City Mayors, Metropolitan Autonomous City Mayors, Special Self-Governing Province Governor, or the head of a Si/Gun shall apply for permission

Permission for development activities or permission for alteration shall be granted only when it meets the following standards:

1. To meet the scale of development activities prescribed by Presidential Decree in consideration of the characteristics of specific-use areas: Provided, That development activities shall be performed;

Performance of a rural improvement project under subparagraph 4 of Article 2 of the Rearrangement of Agricultural and Fishing Villages Act, etc. prescribed by Presidential Decree

shall not be subject to restrictions on the scale of development activities.

2. Not to be contrary to the details of an urban or Gun management plan and a growth management plan referred to in paragraph (4);

3. Not to hamper the implementation of an urban or Gun planning project.

4. The actual status of land use or land use plan in neighboring areas, the height of buildings, gradient of land, status of trees, and water distribution;

It shall be in harmony with surrounding environments or landscapes, such as water number, drainage of rivers, lakes and marshes, wetlands, etc.

5. To properly establish a plan for installing infrastructure following the relevant development activities, or securing sites required therefor.

(3) Where permission may be granted pursuant to paragraph (1), the standards for such permission shall be the characteristics of the region, the development status of the region, and the current status of infrastructure.

The following classification shall be prescribed by Presidential Decree in consideration of yellow dust, etc.:

Enforcement Decree of the National Land Planning and Utilization Act

Article 56 (Standards for Permission for Development Activities)

(1) Criteria for permission for development activities under Article 58 (3) of the Act shall be as specified in attached Table 1-2.

[Attachment 1-2]

Criteria for permission for development activities (related to Article 56)

1. Act on the Management and Use of Livestock Excreta Specifying to be examined by field;

Article 8 (Restrictions, etc. on Raising of Livestock)

(1) The head of a Si/Gun/Gu shall do the following to preserve the living environment of local residents or preserve the water quality of water sources:

relevant local person with respect to an area in which restriction on raising of livestock is deemed necessary among such areas;

The breeding of livestock may be restricted by designating and publicly announcing a specific area, as prescribed by municipal ordinance of a dental organization.

Provided, That at the request of an adjacent local government in a boundary area between local governments, the Ordinance of the Ministry of Environment.

1. An area in need of the protection of the living environment in a concentrated residential area, where it is necessary to protect the living environment, by designating and publicly announcing a specific area after consultation with the relevant local government.

Ulsan Metropolitan City Ordinance on Restriction on Livestock Raising by Ulsan-gun

Article 1 (Purpose)

The purpose of this Ordinance is to contribute to the conservation of the living environment and water quality of residents by prescribing matters necessary for restricting the raising of livestock by Ulsan-gun in Ulsan Metropolitan City pursuant to Article 8 of the Act on the Management and Use of Livestock Excreta.

Article 3 (Areas Restricted to Livestock Raising)

(1) The head of Ulsan Metropolitan City, Ulsan Metropolitan City (hereinafter referred to as the "head of a Gun") may restrict the raising of livestock pursuant to Article 8 (1) of the Act on the Management and Use of Livestock Excreta (hereinafter referred to as the "Act"), and the areas subject to restrictions on the raising of livestock shall be as specified in the attached Table.

(2) No livestock shall be raised in a restricted area for raising livestock.

(3) Notwithstanding paragraphs (1) and (2), in any of the following cases, no use of livestock in a restricted area for raising livestock shall be permitted:

1. Where a school or a testing and research institute raises or captures livestock for the purpose of learning or experiment;

2. Where a medical institution or manufacturer of medicines raises or stuffs livestock in order to conduct experiments and research, or use them as raw materials for medicines.

3. Where a veterinarian or an artificial inseminator raises or captures livestock for the purpose of medical treatment or artificial insemination, etc.

4. Where any livestock is slaughtered in a slaughterhouse, slaughterhouse, or compost, which is established pursuant to relevant Acts and subordinate statutes;

5. Where he/she raises cattle, milk, horses, deer, sheep, sheep, or pigs not more than five eggs or raises chickens and ducks not more than 20 eggs as cattle for side business use by a farm household;

6. Where livestock are temporarily stored in a market for sale;

7. Where pets or crime prevention dogs are raised or moored which are not for profit-making purposes;

8. Where he/she raises or captures other non-profit domestic animals.

(4) Where the head of a Gun designates, alters, or cancels an area subject to restrictions on raising livestock pursuant to Article 8 (1) and (5) of the Act, he/she shall publicly announce such area after undergoing the pre-announcement of administration under Article 46 of the Administrative Procedures Act, including the following matters:

1. Grounds for designation, alteration or cancellation;

2. Areas and zones subject to designation, alteration or cancellation;

3. Other matters necessary for the designation, alteration and cancellation thereof.

[Attachment]

Areas subject to restriction on livestock raising (related to Article 3 (1))

A person shall be appointed.

Finally

A person shall be appointed.

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