The Superior Court of Justice of the Canary Islands has annulled the General Supplementary Planning Plan of Yaiza, after upholding one of the lawsuits filed against this document.
The ruling adds to another that four years ago partially annulled the Plan, only in relation to Coasts, and now extends it to the entire text.
“We must uphold and we fully uphold the governing claim of this appeal, declaring the indicated administrative act, of approval of the Supplementary General Plan of the Yaiza City Council, contrary to law, which we must annul and we annul”, the ruling states, dated September 22.
The appeal was filed by businessman Honorio García Bravo, who, among other things, denounced that the document intended to be a kind of “amnesty” for those who had violated urban planning laws, treating “equally” the promoters who “benefited” from the irregularities committed as those who had “acted correctly or waited.”
In total, the lawsuit raised 18 grounds for full annulment -in addition to four subsidiary requests for modifications thereof-, although the Chamber has only upheld one of them. Specifically, the Second Section of the Contentious-Administrative Chamber of the TSJC concludes that the Plan contravened a report on roads and highways of the Government of the Canary Islands.
"The mere fact of not complying with what is indicated leads to nullity"
“Although this is a specific issue within the very broad framework of the Supplementary General Plan, the upholding of the reason leads to the declaration of nullity of the challenged urban planning instrument”, the ruling explains. Thus, it differentiates this case from what happened with the first ruling of 2018, when the absence of a report from Coasts led to its partial annulment only. And it is that it concludes that the consequences now cannot be limited to a specific space, as was the coastal strip.
In addition, it recalls that the report from the Canary Islands Government coincided with another from the Cabildo, which also requested that "the layout of the new roundabouts proposed for the two roads that access Playa Blanca from Yaiza be modified, so that the LZ-2 road maintains its current layout, and that the new roundabouts are designed only for the urban section of the LZ-701 road."
At the time, those responsible for the Plan did not comply with the content of these reports and argued that the roundabouts were only “indicative”. However, the ruling concludes that “however ‘indicative’ they may be, the truth is that it locates them perfectly, with precision and detail." And above all, that “the mere fact of not complying with what is indicated leads to the nullity of the Supplementary General Plan, as this report is binding.”
The Chamber places special emphasis on this point, since the plaintiff also referred to other sectorial reports that had not even been collected or had been ignored when approving the document. However, the TSJC emphasizes that “the key” is that this one was mandatory and of obligatory compliance.
However, the ruling also points to “another reason for nullity” in one of the “specific allegations” that it has not fully analyzed, relating to the areas of use of public mining domain. Specifically, “the absence of a report” from the General Directorate of Industry.
In this regard, the ruling explains that, following current jurisprudence, it has responded to all the general allegations -avoiding focusing only on the one that leads to the annulment of the document-, but not to the more specific ones. However, by succinctly pointing out these last ones, it anticipates that the lack of that report would also be another reason for nullity.
The "possible fraud", to be resolved in the execution of the judgments
Regarding the main criticism of the plaintiff, the TSJC concludes that this is not the area to resolve whether the objective of this new planning was to give an “amnesty” to offenders.
“The ideal mechanism for the repression of such unlawful conduct is found in another procedural venue at another time”, the Chamber warns, referring to the judgments issued in their day declaring those constructions illegal.
Thus, it indicates that it will be in the execution of those judgments, before the court that issued them, where “the possible fraud will be detected.”