The Superior Court of Justice of the Canary Islands has annulled one of the partial demolition orders that weigh on one of the houses in La Bufona, belonging to prosecutor Miguel Pallarés, considering that there are "loopholes" in the file processed by the Agency for the Protection of the Urban and Natural Environment (Apmun) of the Government of the Canary Islands. On the one hand, the ruling questions that the Apmun resolution ordering the demolition did not specify the date on which the works were carried out, but only that "works have been carried out", without "specifying minimally when they were carried out".
Even, the ruling indicates that "there is no certainty" as to whether the works object of this file, which were carried out after the construction of the houses, were carried out by the promoter of these houses or later by the buyers. In this regard, it should be recalled that both Pallarés and other buyers acknowledged in the criminal case of La Bufona that after acquiring the houses they carried out works. And the sentence in that criminal case against the promoters, which is already final and also orders the partial demolition of the houses, "places the events between the years 1997 and 2004". This implies that the works continued until four years after the sale, which in this case occurred on February 3, 2000. In fact, it was on July 26, 2000 when the Apmun issued a first resolution ordering the stoppage and sealing of the works, which was directed "against Brisa Inversiones" and "others", according to the ruling.
However, that procedure of the Agency "was not concluded, so it ended up expiring". It was not until 2013, more than a decade later, when the Apmun opened a new file, which ended with those partial demolition orders, addressed to the buyers. And at least one of them is the one that has just been annulled now by the TSJC, which considers that the resolution "lacked an essential piece of information", such as the date on which those works were carried out.
"It should have specified it as a priority and preliminary matter"
In its ruling, the Court points out that knowing that date is essential "to determine the applicable regulations". Specifically, the Apmun resolution referred to the Revised Text of the year 2000. "The administrative act should have specified as a priority and prior to any other, at least, the temporal reason that allowed the application of said rule", insists the ruling, which concludes that for this reason the resolution "lacks sufficient motivation". Thus, it also annuls the judgment of first instance, issued in November 2015, which had rejected the first appeal of Miguel Pallarés and had maintained the validity of the demolition order.
In the case of the home of the former coordinating prosecutor in Lanzarote, the ruling indicates that after the execution of the house, a swimming pool of about 22.17 square meters, a pool cover, an attached building of 40 meters of surface and 2.5 meters of height, two extensions of the house in about 6.5 and 17 square meters of surface, paving of the backyard and perimeter enclosure of the land of about 40 square meters were built.
In the trial of the La Bufona case, which is independent of this administrative litigation, Pallarés declared as a witness that he requested "the appropriate license" to later pave the land and install a pergola and a barbecue in the backyard, after the purchase of the house. "I think so, but I would have to look at it", he replied when the lawyer of the private prosecution expressly asked him if the license covered all the works he carried out. And in the case of the pool, he admitted that he "believes" that he did not ask for a license. In this regard, he pointed out that the promoters made "the hole" for that pool, and that later he hired another company to execute it.
However, the fact that the Apmun file did not indicate the date on which those works were carried out on which it ordered the demolition, has led the TSJC to annul this decision. In addition, it adds that although this "by itself would be sufficient to uphold the appeal, there is a new loophole" in the Agency's resolution.
"The municipal license suffers from a possible defect of nullity"
"There is a municipal license that is granted for the construction of the house on a surface of 384 square meters. If, as stated in the appealed acts, the declared illegal works located within the same plot, are located on land classified and categorized as rustic protection, it is evident that the municipal license suffers from a possible defect of nullity", the ruling points out, which indicates that what the Apmun should have done, "before proceeding to initiate sanctioning proceedings", was to challenge the municipal license.
In addition, before upholding Pallarés' appeal, the ruling rejects a petition that he himself had made, urging that the process be terminated as res judicata, since a judgment had already been issued in the criminal proceedings. However, the Chamber rejects this claim, alleging that "neither the appellants nor the administration were parties to the criminal proceedings, nor was the administrative act that is the object of this appeal judged in those proceedings". However, it ends up giving him the reason in the substantive argument, by annulling the demolition order.
However, there is another demolition order on this and 13 other homes in La Bufona, which is the one that was issued in the criminal proceedings and is already final. The difference is that in that case, those who must bear the costs of the demolition are the promoters, who are the ones who were convicted in that case. As for this new ruling in the contentious-administrative proceedings, an appeal is still possible before the Supreme Court.
As for the other 13 owners affected by the demolition orders of the Apmun, only 9 -in addition to Pallarés- appealed the resolution in the Courts. Among the three who did not appeal is the island president of the PP, Ástrid Pérez, so in her case the demolition order of the Agency is also final.
