The Special Plan of La Geria is "tainted with nullity" and includes determinations "contrary to the law" that directly affect and benefit the Stratvs winery. This is supported by the devastating 126-page legal report prepared by the Cabildo technician Joana Macías, at the request of the Court of First Instance Number 5 of Arrecife. The report on how this Plan affects the winery was requested in the framework of the Stratvs case by Judge Silvia Muñoz, who in December 2013 ordered the sealing and closure of this facility.
When submitting this report last Friday (one day after the deadline given by the judge), the president of the Cabildo, Pedro San Ginés, attached a letter in which he clarified to the Court that neither this report nor another of a technical nature had been "validated or supervised in depth by the Legal Advice of this Corporation, given that there has not been enough time to do so." "However," added San Ginés, "from a first reading by the Legal Services of the Corporation, I am informed that the report signed by Mrs. Joana Macías Fernandez exceeds the object of what was requested, in addition to the content errors in which it incurs, according to what the Insular Director of Territorial Policy of this Institution tells me."
In that forceful report, the technician responsible for its preparation, Joana Macías, explains that the new Plan of La Geria contemplates the implementation of ten "structuring facilities", corresponding to industrial wineries, among which includes the Stratvs winery, which was built outside the law and incurring in a long list of alleged crimes that are being investigated in this case. And precisely Stratvs is privileged compared to the rest of the wineries of La Geria in this Plan.
"Infraction" of the Law
Although according to the report Stratvs would not be legalizable today, even despite the changes that have been made to the category of that land (with several modifications from the processing of the plan's progress to the final approval), it could be if it were to be included in the category of "Protection of Infrastructures and Equipment."
On this point, the jurist points out that this category introduced by the plan is a "category without delimitation, left to the free will of the owner, constituting a breach of the public function of the activity of ordering natural, territorial and urban resources." Therefore, she considers that it could not be applied since it would imply an "infraction" of the legislation in force on the Natural Spaces of the Canary Islands.
In addition, she emphasizes that the Plan includes a long list of determinations "contra legem", that is, contrary to the law, among which is that the Special Plan of La Geria "lacks legal authorization for the implementation of structuring facilities."
The Plan gives "public use" to Stratvs and contemplates paying rent
In addition to opening a possible way to try to legalize the Stratvs winery, the Special Plan of La Geria even gives a "public use" to this facility of the businessman Juan Francisco Rosa. "It is the only structuring equipment included, for the moment, in the public use model, and as such, the only destination for the location of the Landscape Protected Office of La Geria" that this Plan foresees, according to the technician of the Cabildo.
Even, she points out that "for the provision of this management office" that would be implemented in Stratvs, becoming the nerve center of the wineries of La Geria, "a rental expense of the premises of 10,800 euros per year has been budgeted."
On this point, the technician also questions that "the equipment for the reception of visitors, which is what the Public Use program of this Space has planned for these constructions, must be located in places of lower relative quality, that is, in the general use area", and this requirement is also "not met" in Stratvs, which "is located" in a "Traditional Use Zone", so that project would enter "in contradiction" with the Revised Text of the Laws of Territorial Planning and Natural Spaces of the Canary Islands.
It is "verified" that there is groundwater
Regarding the area in which this winery is framed, the technician recalls that its classification as "traditional use" is intended to "protect the traditional typology of natural sands, which reaches its maximum expression in the La Geria sector." In addition, she emphasizes that in the place where Stratvs stands today "there was more lapilli than in the rest of the protected landscape, as it is located in the very heart of La Geria."
The report also warns of the existence of groundwater in that place, "as a water network is verified in the meridional area of La Geria." The latter would directly influence another of the crimes that are being investigated in this case, specifically against the environment, for the alleged discharges of wastewater.
A Plan "tainted with nullity"
In addition to questioning the fit that has been tried to give to the Stratvs winery, the legal report of the Cabildo also discusses the complete processing of the Special Plan of the Protected Landscape of La Geria, going so far as to say that it is "tainted with nullity" as a whole.
In this regard, the report points out that when executing the judgment that annulled the previous Plan in 2012, the new document "was not approved following the legally established procedure for its formulation, processing and approval." In addition, "there is no record of the existence of a report that legally and, where appropriate, jurisprudentially supports the administrative procedure followed for the execution of the judgment" that annulled the Special Plan of La Geria, and that determined that this document had "ceased to exist" and was "expelled from the legal system."
In fact, the jurist who signed this report argues that the judgment "has not been executed in its own terms, with the consequent violation of the constitutional right to effective judicial protection." In addition, she recalls that when the nullity of a planning instrument is declared, "it is not possible to preserve, correct or validate procedures, as well as the transferability of administrative acts"; and emphasizes that the administration "lacks any power to alter or modify the content of judgments."
In the same line, the jurist questions that in the processing of the Plan of La Geria neither "a Gender Impact Assessment report was incorporated, required as it is an act of a normative nature", nor did it have a "report or memorandum of economic sustainability." In addition, she highlights that the powers for the formulation and processing of this plan would fall on the Ministry of Sustainability of the Government of the Canary Islands, and not on the General Directorate of Territorial Planning and Vice-Ministry of Territorial Planning. "The first technique to combat illegal regulations is their non-application," the technician emphasizes in one of the points of her conclusions.
