Supreme Court Decision 2003Du13489 Delivered on March 11, 2005 [Claim for Cancellation of Determination and Public Notification of Designated Area for Waste Burning Facility]

[Main Issue]

The elements for the residents residing outside 300 meters from the boundary of the waste disposal facilities to have the standing to sue as plaintiff in the claim for a confirmation of invalidity of the disposition which decided and published the designated area for the waste burning facility in a case where the agency for the waste disposal facilities fails to designate or announce the area as the affected neighboring area

[Summary of Decision]

The purport of the relevant provisions of the former Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. (amended by Act No. 6656 of Feb. 4, 2002) and the Enforcement Decree of the Act lies in the protection of interests including individual interests of the residents residing in the area directly and significantly affected by environmental harms as well as those residing in the indirectly affected neighboring area of 300 meters from the boundary of the facilities so that they live a life in the optimal environment, not subject to environmental harms exceeding the endurable degree compared to the situation prior to the implementation of the business establishing the burning facilities with the disposal capacity of 50 tons per day. Since the environmental interests of the above residents as to a disposition which decided and published the area designated for the waste burning facilities were direct and concrete interests protected individually for each resident, thus each resident can be acknowledged to have the standing to sue under the presumption that there practically exist environmental harms or concerns for such harms unless any other circumstances are demonstrated. On the other hand, if the agency for the waste disposal facilities fails to designate or announce the area as the affected neighboring area despite environmental harms exceeding the endurable degree compared to the situation prior to the implementation of the business establishing the burning facilities, the residents residing outside 300 meters from the boundary of the waste burning facilities could be acknowledged as having the standing as plaintiff by proving that their environmental interests are infringed upon or likely to be infringed upon by implementation and operation of the pertinent waste disposal facilities pursuant to Article 17 (3) 2 of the Act.

[Reference Provisions]

Article 17 (1) and 17 (3) 2 of the former Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to Adjacent Areas Act (amended by Act No. 6656 of Feb. 4, 2002), Article 20 of the Enforcement Decree of the former Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to Adjacent Areas Act, Article 12 of the Administrative Litigation Act

Article 17 of the Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to Adjacent Areas Act (Determination and Announcement of Affected Neighboring Areas) (1) The agency in charge of establishing waste disposal facilities shall determine and notify publicly the neighboring areas which are influenced environmentally by the establishment and operation of the waste disposal facilities in question (hereinafter referred to as "affected neighboring areas"), within the period as prescribed by the Presidential Decree after a plan for establishment of waste disposal facilities is published under the provisions of Article 11-3.

(3) The affected neighboring area shall be divided into as follows:

2. Indirectly affected area; an area other than the directly affected area which is located within the boundary prescribed by the Presidential Decree and anticipated to be affected environmentally as a result of the survey of environmental impact conducted under paragraph (2): Provided, that where it is deemed especially necessary, an area outside the boundary prescribed by the Presidential Decree may be included.

Article 20 of the Enforcement Decree of the former Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to Adjacent Areas Act (the scope of the indirectly affected area) The meaning of the "area determined by the Presidential Decree" under Article 17 (3) 2 of the Act means the area located within 2 kilometers from the boundary of the area designated as waste filling-up facilities or within the 300 meters from the boundary of the area designated for waste burning facilities.

Article 12 of the Administrative Litigation Act (Standing to Sue) A person having legal interests to seek the revocation of a disposition, etc. may institute the revocation litigation. The same shall also apply to a person with legal interests to be restored by the revocation of a disposition even after the effect of such a disposition, etc. is extinguished by the lapse of period, the execution of disposition, etc. and other causes.

[Plaintiff (the Designated Party)-Appellant] Shin Young-sup

[Defendant-Appellee] The City of Ansung (Attorney Kim Dong-sik, Counsel for defendant-appellee)

[Judgment of the court below] Seoul High Court Decision 2002Nu16599 delivered on Oct. 28, 2003

[Disposition]

The appeal is dismissed. The costs of the appeal shall be borne by the plaintiff (the Designated Party).

[Reasoning]

1. The reasoning of the court below is as follows. The court below first established the facts that on Nov. 6, 2000, the defendant delivered a disposition which decided and published the area designated for the waste burning facilities under Article 9 of the former Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. (amended by Act No. 6656 of Feb. 4, 2002, hereinafter referred to as "the Act") concerning the establishment of a waste burning facility for the disposal of household garbage originated in the City of Ansung. As to this, the plaintiff (the designated party, hereinafter "the plaintiff") sought a confirmation of the invalidity of the disposition as a matter of law, alleging that the criteria for the designated area were omitted at the time of publicly announcing the area designation plan of this case, or the three resident representatives among the members of the Area Designation Committee were not selected by the Municipal Assembly as required under the Act; thus, the disposition of this case was defective for the violation of procedural stipulations under the Act, and the degree of the defects was so significant and obvious that such defective disposition should be confirmed as invalid as a matter of law. As to the plaintiff's allegation, the court below reasoned as follows: considering as a whole the legislative purport and purpose of the general provisions of the Act and its Enforcement Decree and the contents, nature, aspects of the interests infringed upon by the establishment of the waste disposal facility, the residents residing within the affected neighboring area by the waste burning facility of this case should have the standing to sue in the dispute for the validity of the disposition of this case; however, since the Act and its Enforcement Decree do not provide for the contents and purport which protect the environmental benefits or property benefits of the residents residing outside the affected neighboring area by the waste burning facility of this case as an individualized, direct, concrete interest, we presume that those residents outside the neighboring area do not have the standing to sue as plaintiff related to the disposition of this case on the ground of the aforementioned infringement of the interests unless any other circumstances are demonstrated; according to Article 17 of the Act and Articles 17 and 20 of its Enforcement Decree, the affected neighboring area of the waste burning facility of this case is the area within 300 meters from the boundary of the above facility; therefore, the plaintiff must reside within 300 meters from the boundary to have the standing to sue as plaintiff in the dispute against the disposition of this case unless any other circumstances are demonstrated; however, there was no residential area within 300 meters from the boundary of the above facility and the plaintiff does not reside the above area; As a result, the court below dismissed the lawsuit of this case as unlawful since the person who does not have the lawful standing to bring a legal action.

2. Considering the relevant provisions of the Act and its Enforcement Decree as a whole, the Minister of Environment or the head of a local government (hereinafter referred to as the "agency in charge of establishing the waste disposal facilities"), when he intends to install and operate the waste filling-up facilities with filling-up quantities of 50 tons per day, decides and publishes a location selection plan {Article 9 (1) of the Act}; the agency in charge of establishing waste disposal facilities determines and publishes the neighboring areas which are influenced environmentally by the establishment and operation of the waste disposal facilities in question (hereinafter referred to as "affected neighboring areas"), within the period as prescribed by the Presidential Decree after a plan for the establishment of the waste disposal facilities is published {Article 17 (1) of the Act}; the affected neighboring areas are divided into a directly affected neighboring area and indirectly affected neighboring area, and a directly affected neighboring area means the area which is anticipated to be affected environmentally and directly in terms of activities of humans and animals and the products of agriculture, livestock, forestry and fisheries as a result of the survey of environmental impact conducted by the special investigation institution selected by the residents support commission and thus, the relocation of residents residing in the area is required {Article 17 (3) 1 of the Act}; though an indirectly affected neighboring area is an area within 300 meters from the boundary of the area designated for waste burning facilities, which is the area which, other than the directly affected area, is anticipated to be affected environmentally as a result of the survey of environmental impact, an area outside 300 meters from the boundary of the area for waste burning facilities could be included as an indirectly affected neighboring area where it is deemed especially necessary {Article 17 (3) 2 of the Act, Article 20 of the Enforcement Decree}.

The purport of the above pertinent provisions lies in the protection of interests including individual interests of the residents residing in the area directly and significantly affected by environmental harms as well as those residing in the indirectly affected neighboring area of 300 meters from the boundary of the facilities so that they live a life in the optimal environment, not subject to environmental harms exceeding the endurable degree compared to the situation prior to the implementation of establishing the burning facilities with the disposal capacity of 50t per day. Since the environmental interests of the above residents as to a disposition which decided to designate the area for the waste burning facilities followed by publication were direct and concrete interests protected individually for each resident, each resident can be acknowledged to have the standing to sue under the presumption that there practically exist environmental harms or concerns for such harms unless any other circumstances are demonstrated.

On the other hand, if the agency for waste disposal facilities fails to designate or announce the area as the affected neighboring area despite environmental harms exceeding the endurable degree compared to the situation prior to the implementation of the business establishing the burning facilities, the residents residing outside 300 meters from the boundary of the waste burning facilities can be acknowledged as having the standing as plaintiff by proving that their environmental interests are infringed upon or likely to be infringed upon by implementation and operation of the pertinent waste disposal facilities pursuant to Article 17 (3) 2 of the Act.

Reviewing the above legal principles in light of the record, the plaintiff should be ruled as not having the standing to sue as plaintiff who can seek a confirmation of invalidity of the disposition this case since the plaintiff resides in the area at least 900 meters away from the boundary of the designated area, and the woods and fields lie between the plaintiff's village and the designated area for waste disposal facilities, and the plaintiff failed to prove in this case that his environmental interests are infringed upon or likely to be infringed upon by implementation and operation of the pertinent waste disposal facility.

Therefore, the court below did not err in concluding that the lawsuit of this case is unlawful since it was filed by the person who does not have the lawful standing to sue as plaintiff and there were no errors which affected the conclusion of judgment although it erred in holding that the plaintiff does not have the standing to sue as plaintiff just because there was no residential area within 300 meters from the boundary of the above waste disposal facility and the plaintiff does not reside within 300 meters area.

3. Therefore the appeal is dismissed and it is so decided as per Disposition with the assent of all participating Justices.

Justices Bae Ki-won (Presiding Justice)

Yoo Ji-dam

Lee Kang-kook

Kim Yong-dam (Justice in charge)