[1] In a case where approval of factory establishment does not meet the requirements for permission for development activities, whether an administrative agency may refuse to grant approval of factory establishment on such ground (affirmative)

[2] The method of examining whether an administrative agency’s discretionary authority’s permission to engage in development activities that are likely to cause environmental damage or pollution is a deviation or abuse of discretionary authority and whether the administrative agency’s discretionary decision on the requirements necessary to estimate the future uncertain circumstances and ripple effects should be widely respected (affirmative in principle)

[1] Articles 13(1) and 13-2(1)5 of the Industrial Cluster Development and Factory Establishment Act, Article 19(2) of the Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act, Articles 56(1) and 58(1) and (3) of the National Land Planning and Utilization Act, Article 56(1) [Attachment Table 1-2] of the Enforcement Decree of the National Land Planning and Utilization Act, Article 27 of the Administrative Litigation Act / [2] 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 / [2] Supreme Court Decision 2016Du55490 Decided March 15, 2017 (Gong2017Sang, 778)

[Defendant-Appellee] The Head of Si/Gun/Gu (Attorney Choi Dong-young, Counsel for defendant-appellee)

Public Market (Attorney Advanced beneficiary, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2017Nu11976 decided November 9, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the Industrial Cluster Development and Factory Establishment Act (hereinafter “Industrial Cluster Act”), a person who intends to establish a factory with a factory construction area of at least 500 square meters shall obtain approval from the head of a Si/Gun/Gu (Article 13(1)); and with respect to matters consulted with the head of the relevant administrative agency when granting approval for the establishment of a factory, etc., permission for development activities, etc. under Article 56(1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning and Utilization Act”) is deemed to have been granted with regard to the relevant factory and access road sites (Article 13-2(1)5). In addition, Article 19(2) of the Enforcement Decree of the Industrial Cluster Act provides that the head of a Si/Gun/Gu may determine whether to grant approval after examining whether such application conforms to the relevant Acts and subordinate statutes, such as the Industrial Cluster Act, and construction of buildings or structures (Article 56(1) of the National Land Planning and Utilization Act) due to development activities subject to permission, such as a Mayor/head of a Gun, etc.

Comprehensively taking account of these provisions, where approval of factory establishment does not meet the requirements for permission for development activities, an administrative agency may refuse to grant approval of factory establishment, etc. on such ground. Permission for development activities belongs to the discretionary jurisdiction of an administrative agency as to whether the criteria for permission and prohibition requirements are prescribed as indefinite concepts. Therefore, in principle, the judicial review thereof is limited to whether there is deviation from or abuse of discretionary authority, taking into account the possibility of discretion as to public interest judgment of the administrative agency, and whether there is a violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 201Du29205, Dec. 13, 2012).

In particular, when examining whether there is deviation or abuse of discretionary authority in relation to the permission of an administrative agency for development activities that are likely to cause environmental damage or pollution, the determination should be made carefully by comprehensively taking account of the following: (a) the use status and the legislative purport of various regulations on balance of rights and interests and protection of environmental rights among interested parties who have conflicting interests with those of the relevant local residents, including the living environment; and (b) accordingly, the discretionary determination by an administrative agency on the requirements that require prediction of the uncertainty and ripple effect that may occur in the future, such as “constition of environmental pollution” should be widely respected insofar as the content thereof is unreasonable or is not clearly contrary to the principle of equity and proportionality (see Supreme Court Decision 2016Du5490, Mar. 15, 2017, etc.).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. On June 11, 2015, the Plaintiff filed an application for approval for the establishment of a factory (hereinafter “the instant factory”) to establish a non-metallic mineral crushing plant (hereinafter “instant factory”) on the land (hereinafter “the instant application site”), i.e., Hongnam-ri, Dai-si, Madon-si, and 112-4, and one parcel (hereinafter “the instant application site”). On August 18, 2015, the Plaintiff withdrawn the first application on August 18, 2015.

B. On October 19, 2015, the Plaintiff filed an application for approval for the establishment of a new factory with the same content as the factory site (5,041 square meters, manufacturing facilities 525 square meters, hereinafter “the second application”). The Defendant demanded that the Plaintiff consult with the Geum River basin basin basin environmental office on the ground that the business following the second application falls under a business subject to small environmental impact assessment, the Plaintiff asserted that it is not a business subject to small environmental impact assessment by reducing the size of the area, and withdrawn the second application on April 4, 2016.

C. On April 5, 2016, the day following the withdrawal of the second application, the Plaintiff maintained the same manufacturing facility size as the same, and, in particular, applied for the instant application (factory site 3,010 square meters, 525 square meters) by significantly reducing the area of the business site and the area of the camping site.

D. On August 25, 2016, the Defendant rejected the instant application for the following reasons (hereinafter “instant disposition”).

1) The instant application is an inappropriate application filed with the intent to avoid environmental impact assessment.

2) A variety of environmental damage, such as scattering dust, noise, traffic accident increase, water pollution, etc., is anticipated to cause a serious decline in the quality of life of residents, and it is expected that the national/Do-based project is being promoted to attract population to rural communities, such as the creation of rural experience villages and the creation of electric housing complex.

3) The instant application does not conform to the standards for permission for development activities. The ecological and nature level under Article 34 of the Natural Environment Conservation Act is also an area to minimize damage caused by development and use as a second-class zone. The instant application does not provide effective measures for reducing sewage, noise, and sewage and wastewater treatment, and does not take into account harmony with landscape and surrounding environment. The Plaintiff’s business plan is unreasonable when considering the output (500 cubic meters a day) is taken into account to achieve the purpose of the project.

E. The motion and surrounding circumstances are as follows.

1) The instant application area is a rural community area located away from 691 lines of local highway 691 and 110 meters, 250 meters away from the nearest citizen families, and 1.2 km away from a collective residential area (limariju).

2) In the vicinity of the instant application site, pine trees, pine trees, active leaves, etc. are distributed. The instant application area is also designated as the ecological and natural zone as the second-class zone pursuant to Article 34 of the Natural Environment Conservation Act.

3) According to a small-scale environmental impact assessment submitted by the Plaintiff at the time of the first application, red shots, which are Class II endangered wild animals and natural monuments, were observed in the vicinity of the instant application site.

4) The Defendant is planning to implement or implement the rural experience and recreation village project, environment-friendly agricultural project, electric power resource housing project, etc. in the vicinity of the instant application site.

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

A. The instant application is a typical rural community area where there are people in a place less than 250 meters away from fire and a collective residential area located at a 1.2km away. The instant factory is a facility that discharges environmental pollutants, such as dust, noise, vibration, etc., and is relatively close to the residential area, and thus, it is likely to cause damage to the living environment of neighboring residents.

B. The instant application is also designated as a Class 2 ecological and natural zone, and in light of the surrounding natural environment, etc., it seems that it is necessary to minimize damage due to the development and use of the instant application. Even if most of the public cities are designated as a Class 1 or 2 zone and it is difficult to build a fine stone plant in the public city in the public city, due to such circumstance, it cannot be said that the instant application is necessarily approved the construction of the instant factory.

C. The Plaintiff already filed an application for approval to newly establish a factory with the same content twice, who was requested to supplement the problem of small environmental impact assessment, and then withdrawn the application, and then maintained the same size of manufacturing facilities as the size of manufacturing facilities, and greatly reduced the area of the project site and in particular, the area of the site was considerably reduced. Accordingly, the instant application did not fall under a project subject to small environmental impact assessment even though the core size of manufacturing facilities, which is the element of the element of the environmental

D. The Plaintiff’s business plan does not physically make it impossible, but is very exceptional, that the Plaintiff’s production volume per day (500 cubic meters) can be entered in the reduced outdoor storage place (100 square meters).

E. Although the Plaintiff has established measures to reduce dust, noise, and sewage and wastewater by clarifying the operation plan, such as the installation of vehicle crushing facilities in the factory building and the introduction of a portable crushing method, in light of the background leading up to the application of this case and the contents of the business plan, etc., it is deemed that the Plaintiff is not enough to raise concerns about environmental pollution only by the reduction measures that the Plaintiff caused the above application of this case. This is more so in light of the fact that if the environment is damaged, it is difficult to restore it to its original state due to many cases.

F. Examining in light of the relevant statutes and legal principles as seen earlier, it is difficult to readily conclude that the instant application did not meet the criteria for permission to engage in development activities on the grounds that environmental pollution, such as dust and noise, and thus, the Defendant’s non-approval of the instant disposition is unlawful as it deviates

4. Nevertheless, the lower court determined that the instant disposition was an error of deviation or abuse of discretionary authority on the premise that it is difficult to view that the construction of the instant factory is likely to cause dust, noise, and vibration exceeding the tolerance limit or damage the environment to nearby residents. In so determining, the lower court erred by misapprehending the legal doctrine on deviation or abuse of discretionary authority, thereby adversely affecting the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded 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 Ki-taik (Presiding Justice)