S E N T E N C E
Most Illustrious
Presiding Judge: Mrs. Cristina Paez Martínez Virel.-
Judges: Mr. César José García Otero.-
Mrs. Inmaculada Rodríguez Falcón.
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In the city of Las Palmas de Gran Canaria on May 11, 2005.-
Having seen, by the Second Section of the Administrative Litigation Chamber of the Canary Islands High Court of Justice, based in Las Palmas de Gran Canaria, this appeal No. 1593/00, followed by ordinary procedure; in which the parties are: as appellant, the Island Council of Lanzarote, represented by the Attorney Mrs. Mercedes Ramírez Jiménez and defended by the Lawyer Mr. Agustín Domingo Acosta Hernández; and, as the defendant Administration, the Yaiza City Council, represented by the Attorney Mr. Francisco Bethencourt Manrique de Lara and defended by the Lawyer Mr. Felipe Fernández Camero; regarding the extension of a building permit for a basic project and an execution license.-
I.- B A C K G R O U N D .-
FIRST .- By Decree of the Mayor of Yaiza City Council, dated August 6, 1998, an extension of the municipal building permit for apartments and common areas granted on May 24, 1988, was granted to the company Papagayo C-12 S.L., on plot I of the San Marcial del Rubicón urbanization, in Playa Blanca, municipality of Yaiza, with the following requirements: a) submission of the execution project endorsed by the corresponding Professional Associations, adapted to Decree 23/1989, of February 15, on the Regulation of Tourist Apartments; b) green or blue color of the exterior carpentry; c) enclosure of the plot with a double wall of 40 cm of block plastered and painted white, with a maximum height of 1.5 meters; d) presentation of a safety and health study for the commencement of the works.-
SECOND. An administrative appeal was filed against said Agreement by the Attorney Mrs. Mercedes Ramírez Jiménez, in the name and representation of the Island Council of Lanzarote.-
THIRD.- The same party requested the extension of the administrative appeal to the Decree of the Mayor of Yaiza City Council of January 10, 2001, which approved in favor of the entity Riversun Inmuebles S.L. the execution project of 83 4-key tourist apartments on the same plot I-West of the San Marcial del Rubicón urbanization, in Playa Blanca, with the requirements indicated in the act.-
FOURTH. Once the extension was agreed and after various procedural events, the corresponding lawsuit was filed, requesting the upholding of the administrative appeal and " .. declaring the nullity of the appealed acts and ordering the demolition of the acts that have been executed under their protection as they are incompatible with the determinations established in the Island Plan for Territorial Planning of Lanzarote, and with its revision approved by Decree 65/2000, of May 8, all with express imposition of costs on the defendant City Council".-
FIFTH.- For its part, the defendant Administration opposed the appeal and requested its inadmissibility and, subsidiarily, its dismissal, after which the evidentiary period was opened, at the end of which the parties were given the opportunity to present their conclusions, which both did.
The reporting judge was the Honorable Judge Mr. César José García Otero, who expresses the unanimous opinion of the Chamber.-
II.- L E G A L G R O U N D S .
FIRST.- The object of the appeal is the claim for radical nullity or annulment of the following acts:
a) The Decree of the Mayor of Yaiza City Council, of August 6, 1998, extending the municipal building permit granted on May 24, 1988 for the construction of 120 apartments and common areas, on plot I of the San Marcial del Rubicón urbanization, in Playa Blanca, municipality of Yaiza, in favor of the company Papagayo C-12 S.L. based on the basic project of the architect Mr. Héctor.
b) The Decree of January 10, 2001, which approves in favor of the company Riversun Inmuebles S.L. the revised execution project of 83 4-key tourist apartments on the same plot I-West, of the San Marcial del Rubicón urbanization, in Playa Blanca, based on the execution project of the architect Mr. Ernesto.-
In this regard, there are many grounds for challenging both acts that the Island Council of Lanzarote articulates in its lawsuit and in its conclusions, which, very briefly, can be summarized as follows:
A. Due to invalidating irregularities in the course of the processing of the extension of the license on the basic project, and in the processing of the execution project, which include as grounds for radical nullity:
1) The absence of a report from the Cabildo de Lanzarote on compatibility with the island planning, which was required by article 2 and First Transitory Provision of the Island Plan for Territorial Planning of Lanzarote, in relation to the First Transitory Provision of Law 1/1987, on Island Plans. In this regard, the Transitory Provision of the 1991 PIOT, in order to guarantee the immediate effectiveness of the binding determinations of the Plan, established the need for a mandatory report from the Cabildo on the compatibility with said planning instrument of any license until the planning of a lower level was adapted to its determinations, as required by article 2 .-
From this, the plaintiff entity deduces that what it qualifies as a deliberate omission of the request for the prior and mandatory report from the Cabildo in the license granting procedure, rendered the granting acts null and void, as it is a report to be issued by another Administration, in the exercise of its powers in urban planning matters, which cannot be ignored.
2) The absence of the sectoral authorization that, with a prior, mandatory and binding nature, had to be granted by the regional Administration, pursuant to article 24.1 of Law 7/95, on Tourism Regulation of the Canary Islands, which had not even been requested when the extension was granted and without the fact that the request subsequent to said extension (specifically in October 1999) alters the radical nullity of the license granting procedure.
3) Breach of the legal duty to communicate licenses on tourist land to the Island Council, as established in article 10 of Law 7/1990, on Urban and Territorial Discipline then in force, according to which " The processing acts of any urban planning figure, as well as the granting of licenses for subdivision and building, shall be reliably notified to the corresponding Island Council within fifteen days following the date of the agreement", for which purpose the plaintiff entity argues that the lack of notification seriously impairs the exercise by the Cabildo of its powers in urban, territorial and tourism matters and hinders - when it does not prevent - the adequate and appropriate exercise by the Island Administration of the powers and faculties of planning, inspection and urban, tourist and territorial intervention that it is obliged to perform, especially when said breach is described as intentional by ignoring the communication requirements.-
4) To these reasons, it is added, in the conclusions phase, as another irregularity that, in this case, affects the effectiveness of the act, the one related to the lack of publication of the urban planning regulations of the Revision of the San Marcial de Rubicón Partial Plan, approved by Agreement of the Commission for Urban Planning and Environment of the Canary Islands, dated July 13, 1997, under which the initial building permit was granted (Decree of May 24, 1988), the extension of the basic project (Decree of August 6, 1998) and the license for the revised execution project (Decree of January 10, 2001), in breach of article 70.2 of Law 7/1985, of April 2, on the Basis of the Local Regime, insisting that the ordinances of the Partial Plan and the subsequent Consolidated Text thereof were never published.-
The argument is that the lack of publicity of the urban planning regulations of the revision of the partial planning that, however, were applied by the appealed acts, means that a planning that lacks effectiveness has been applied, and, therefore, is unable to allow the granting of licenses.-
B.- As for the grounds for challenging the appealed Decrees, with regard to their intrinsic legality or material legality, they are, also very briefly, the following:
1) Breach of the conditions to which the original building permit granted to the company Papagayo C-12 for the basic project was subject, which established a period of six months to begin the works, from the notification, and a period of twenty-four months for their completion from the beginning, without the works having started within the established period or in the ten years following its granting, and without the execution project that would authorize the start of said works having been submitted, deducing that the ultimate intention that guided the request was none other than speculative, that is, obtaining an administrative title that recognized the right to build in view of the foreseeable regulatory and planning changes, in the processing phase, that were coming .-
Corollary to this, the only appropriate thing - always according to the Cabildo's thesis - was to understand that the aforementioned license had lapsed as an inherent requirement of its nature, in the interest of legal certainty and in order to avoid requests for building authorizations that lack seriousness or have speculative purposes, especially when the license does not grant an unmodifiable right that can be invoked against future planning and especially when there is no reasonable basis for maintaining the validity of an authorization of this kind for ten years without the works beginning.-
2) Granting of the extension (first of the Decrees appealed here) in violation of the legal regime that regulates the extension of deadlines to start a building, insofar as it is not possible, through the mechanism of the extension of licenses, to alter any aspect of the content of the original authorization except the temporal one, since, in this case, it would be a new building permit different from the previous one, which is what happens in the case under examination, in which the extension is authorized but substantial modifications are imposed and authorized both in the characteristics and in the conditions of the initially planned work.
3) Granting of an extension that should have been denied as the building it authorized was not possible given the regulatory changes that had occurred in urban planning matters, during the period of inactivity of the holder, which affected the validity and effectiveness of the Partial Plan within whose scope the authorization was granted, and in the determinations for granting licenses; among others: a) initial approval of the PIOT of Lanzarote which adopted the agreement to suspend licenses, on January 20, 1989 (BOC January 27, 1989); b) entry into force of Law 7/1990, of May 14, on Urban and Territorial Discipline of the Canary Islands, which took place on May 24, 1990, and which established a specific regime for the lapse and extension of urban planning licenses, as well as the obligation to notify the Cabildos of the granting of those granted (arts 5 and 10.1 LDUT); c) entry into force of the PIOT of Lanzarote, definitively approved by Territorial Decree 63/1991, of April 9, which established the obligation to adapt the planning within a maximum period of six months, with specific provisions on tourism matters, new tourism determinations and minimum standards for newly built tourist apartments d) declaration of Lanzarote as a "World Biosphere Reserve" by UNESCO in 1993 ; e) entry into force of Law 7/ 1995, of April 6, on Tourism Regulation of the Canary Islands, which established the obligation of lower level plans to adapt to the higher tourism use determinations contained in the Island Plans, configured as true tourism planning instruments in the island area, as well as sanctioned with nullity the licenses not adapted to the law or the planning (art 61 LOTC); e) refusal by the COTMAC of the adaptation of the San Marcial de Rubicón Partial Plan to the PIOT; g) start of the revision work of the PIOT and agreement to suspend urban planning licenses for the construction of new accommodation in plots included in Partial or Special Plans not adapted to the determinations of the 1991 Island Plan, approved by Decree 95/2000, of May 8; h) definitive approval of the Revision of the PIOT.
4) Violation of the regime that regulated the lapse of urban planning licenses, and, in particular, of article 5 of the Law on Urban and Territorial Discipline, according to which " Licenses that cover works whose execution has not begun within six months following the date of their granting or the beginning of their effectiveness or that, having started in that period of time, their execution is interrupted for a period of six months, shall lapse after the expiry of said period, and the extension of the initial period of those licenses may be requested for justified reasons only once and for another six months", arguing that it is a lapse "ope legis" without the need for any formal ratification, unless there is a justified reason for extending the initial period, without there being, at the time of granting the extension, any other rule regulating the lapse since the LRSV had repealed article 35.2 of the TRLS of 1992 which established the need for a formal declaration
5) Impossibility of extending the original license as there was no execution project authorizing the start of the works when the extension was granted.-
6) Violation of articles 81 of Law 8/90, of July 25, reproduced in article 238.1 of the TRLS of 1992, according to which " If at the time the modification and revision of the planning comes into force the right to build has already been patrimonialized, but the building has not yet begun, the effectiveness of the license shall be deemed extinguished insofar as it is inconsistent with the new planning", which should have led the Yaiza City Council to understand that the effectiveness of the license was extinguished as it was inconsistent with the new comprehensive planning of the Island of Lanzarote since the entry into force of the 1991 PIOT, article 42.1 of the LRSV, under whose validity the extension file was processed, stating the same.-
7) Violation with the granting of the extension of the determinations of the 1991 PIOT of Lanzarote, whose binding determinations, without prejudice to the transitional period for adapting the lower planning, were of immediate application.-
SECOND.- For its part, the Yaiza City Council invokes, as a first ground, the inadmissibility of the administrative appeal pursuant to article 69 e) of the LJCA, as it understands that the Cabildo was aware of the Decree extending the building permit prior to October 10, 2000, which is the date on which, according to the report of the Cabildo's Secretariat (document 3 attached to the filing document), the Island Plan Office, attached to the Area of Territorial Policy and Environment, became aware of the aforementioned municipal license.-
The City Council maintains that "..long before October 10, 2000 a technical team of personnel at the Service of the Island Council of Lanzarote had access, because the aforementioned entity and the Yaiza City Council so agreed, to the latter's archive where its members examined the municipal files on urban planning licenses, extensions and modifications thereof, including the one now in question, in which the acts challenged in this administrative appeal took place, with respect to which, as with the rest of the procedures to which they had access, the aforementioned team was able to obtain and in fact obtained the copies it considered pertinent of the documents that were in the archive".
In short, it is pointed out that the City Council allowed the personnel sent by the Cabildo to consult the municipal archive, and the result of this work is the General Inventory of licenses and projects between 1987 and 1998 of the Yaiza City Council, prepared by the Island Plan Office of the Island Council of Lanzarote, which includes all the details relating to each building project, license and plots of all the tourist urbanizations in the municipality of Yaiza, including those of San Marcial del Rubicón.-
However, the ground for inadmissibility must be rejected since the decisive factor is that there was never a reliable notification of the license to the Island Council from the City Council, as required by article 10.1 of the Law on Urban and Territorial Discipline, so it is not possible to understand that the two-month period to appeal in court established in article 46.1 of the LJCA has begun.- -
In this sense, full, complete and sufficient knowledge of the act requires notification of the agreements to the point that even any partial knowledge of them by officials or personnel at the service of the Cabildo itself does not constitute notification in the sense required by law to enable the exercise of legal action.-
Moreover, it is not even proven that any official of the Cabildo had knowledge of the extension act in the exercise of his functions, and the joint report of the urban planning technician and the legal technician of the Island Plan Office of the Cabildo de Lanzarote (evidence branch of the plaintiff entity) is significant, in which it is indicated that the list of projects at their disposal does not include the license granted on August 6, 1998 to execute works on plot I west of the San Marcial del Rubicón Partial Plan.-
Therefore, the initial day for calculating the period for appeal shall be the one indicated by the Cabildo, that is, the one on which it had a copy of the Extension Decree at its disposal.-
THIRD.- Having rejected the ground for inadmissibility, and entering into the merits of the case, it is necessary to begin by examining the possible consequences of the lack of publication of the urban planning regulations of the Partial Plan, to which the building permit granted at the time, as well as the extension granted and the execution project, were adjusted.-
In this regard, the fact that the ground has been invoked in the conclusions phase leads the Yaiza City Council to denounce what it describes as a clear procedural deviation whose raising is prohibited by article 65.1 of the LJCA, according to which no issues that have not been raised in the statement of claim may be raised in the written conclusions.
However, the issue relating to the effectiveness or validity of the plan that legally legitimizes the authorization or extension of a basic and execution project cannot be ignored by the Chamber as it is a relevant point for the ruling, so that, had it not been raised by the plaintiff party, and had it been noticed, it should have led to raising the thesis of article 65.2 of the LJCA. In this case, this thesis is unnecessary since, in reality, the issue, of special relevance for the ruling, was raised by the Cabildo in its written conclusions, and in the corresponding procedure the City Council had the opportunity to respond.-
The relevance of the basic issue is based on the fact that the favorable report of the municipal Quantity Surveyor in the extension file is based on the fact that the basic project "complies with the municipal urban planning provisions", that is, those contained in the general and development planning and, therefore, in the regulations of the San Marcial del Rubicón Partial Plan that extended its determinations to the territorial area in which the license was granted.-
FOURTH.- This being the case, in interpretation of article 70.2 of the LBRL, the Jurisprudence has repeatedly pointed out that the principle of full publicity requires the publication of the full text of the ordinances and other regulations of the urban plans.-
In this regard, the Supreme Court has extended the requirement of full publicity and the "vacatio legis" of fifteen days to all urban planning instruments, regardless of which Administration is competent for their approval, and has warned that the ordinances and the articles of the urban planning regulations must be officially published without distinction of origin, that is, whether they are plans whose definitive approval corresponds to the local entities or to the respective Autonomous Community.-
The SSTS of July 27, 2001 and November 12, 2001 have proclaimed that " this interpretation is in any case the most consistent with the rules imposed in article 9.3 of the Spanish Constitution, which would not tolerate the existence and enforceability of rules that configure, limit or define the content of urban property without the necessary publicity".-
The Constitutional Court has also pointed out that publication not only attests to the existence of the rule but also to its content.-
From this, it follows that article 70.2 of the LBRL is a rule that affects the effectiveness of the rules, so that the entry into force of the planning will require the full publication of its regulatory content, and the publication of the approval agreement is not sufficient.
And in this case, it is proven by the certification of the Secretary of the Yaiza City Council, dated May 29, 2003, in response to section five, in which certification was requested on the date and the official gazette in which the urban planning regulations of the San Marcial del Rubicón Partial Plan, which was approved by Agreement of the Commission for Urban Planning and Environment of the Canary Islands on July 13, 1987, were published, to which he replies " That in the file processed relating to the San Marcial del Rubicón Partial Plan (revision) there is a record of the publication in BOC No. 21 of February 15, 1985 of the agreement of November 17, 1988 of the Acknowledgment of the Consolidated Text of the aforementioned Partial Plan, without prejudice to the fact that it was carried out at the time by the Commission for Urban Planning and Environment of the Canary Islands, when it granted the definitive approval (July 13, 1987)".-
This reply, despite its certain ambiguity, makes it clear that the City Council did not publish the urban planning regulations of the Partial Plan in the BOP and that the only thing published is " the resolution of February 3, 1988 by which the agreement of the Commission for Urban Planning and Environment of the Canary Islands of November 17, 1987, by which the Consolidated Text of the San Marcial del Rubicón Partial Plan, municipality of Yaiza (Lanzarote), is acknowledged, is made public".-
Therefore, there is no full publication of the urban planning regulations of the Partial Plan, which corresponded to the City Council, without prejudice to the publication of the definitive agreement of the regional body competent for the definitive approval of a Partial Plan of the municipality of Yaiza (which at that time was the CUMAC), so, according to the reiterated doctrine mentioned above, it did not enter into force, so a license should never have been granted or extended in accordance with the unpublished determinations of a Partial Plan, and, therefore, ineffective.-
Indeed, some Autonomous Communities had considered that with the former article 70.2 of the LBRL, as the definitive approval of the general planning was an act of the competent body of the Autonomous Community and not of the Local Administration, said article was not applicable in cases of approval of General Plans or Partial Plans whose final approval did not correspond to the City Council, although STC 179/89 settled the issue by stating that " what is required is the publication in the Official Gazette of the urban planning regulations, not of the other instruments or documents" (Ground 7).-
Therefore, both in the constitutional interpretation of article 70.2 of the LBRL in its original wording, and in the wording introduced by Law 39/1994, of December 30, and in the current wording, the question of the need for full publication is beyond doubt, and extends to all urban planning instruments, regardless of which Administration is competent for their approval, based on the fact that, as the Supreme Court has also pointed out, " the plans of the municipal level do not lose their subjectively and objectively municipal nature due to the fact that they have been definitively approved by the regional Administration".-
FIFTH.- Therefore, the administrative appeal is upheld to the extent indicated, the consequences of which in relation to the execution of the acts declared null and void shall be those that proceed in view of the effects entailed by the annulment declared, being unnecessary, as well as inappropriate, to proceed further and examine the other grounds for challenge, in particular those referring to the incompatibility of the licenses with the determinations of the Island Plan for Territorial Planning of Lanzarote and, ultimately, to the intrinsic legality of the act.-
SIXTH.- There is no pronouncement on the costs of the proceedings as no procedural recklessness or bad faith is appreciated on the part of the defendant (art. 139.1 LJCA)
Having seen the aforementioned articles and others of general application:
III.- W E H E R E B Y R U L E :
That having dismissed the ground for inadmissibility invoked by the Yaiza City Council, we uphold the administrative appeal filed by the Attorney Mrs. Mercedes Ramírez Jiménez, in the name and representation of the Island Council of Lanzarote, against the Decrees of the Mayor of Yaiza City Council, mentioned in the First and Third Backgrounds, which we annul as not being in accordance with the law.
Without making any pronouncement on the costs of the proceedings.-
Thus, by this our judgment, of which a certification will be attached to the court file, we pronounce, order and sign.-