JUDGMENT 448/05
Istmos Sres.:
Dª Cristina Paez Martínez Virel
President:
D. César José García Otero
Dª Inmaculada Rodríguez Falcón
Magistrates
In Las Palmas de Gran Canaria, on October thirty-first, two thousand and five.-
Seen by the Contentious-Administrative Chamber, the present proceedings of appeal number 1695/2000, promoted by the Prosecutor Mrs. Ramírez Gutiérrez, in the name and representation of CABILDO INSULAR DE LANZAROTE and assisted by a lawyer and as defendant the City Council of Teguise represented by Mr. Bethencourt Manrique de Lara in representation of the City Council of Teguise, Mrs. Abengoechea Bistuer in representation of the César Manrique Foundation and Mr. Valido Farray in representation of Lanzagal Promotores S.L., dealing with urban planning license, the amount being greater than 25 million.
I BACKGROUND
FIRST.- The plaintiff filed a contentious-administrative appeal before this Chamber against the Decree of the Mayor of the City Council of Teguise (Lanzarote), dated November 4, 1999, by which the company "Lanzagal Promotores y Exp.. Hot. Canar. Consulting" was granted a building permit for the construction of a complex of 157 tourist apartments on plot 214 of the Special Partial Plan of Costa Teguise.-
.Admitted for processing, it was given legal publicity and the administrative file was claimed; once received, the appellant was given the opportunity to formalize the claim, which he did in legal form by means of a writing that is substantially reproduced, and in which he ended by requesting that a Judgment be issued declaring the nullity of the appealed act and ordering the demolition of the works that have been executed under the protection of the annulled license because they are incompatible with the determinations of the PIOT and its revision.
SECOND.- The defendant Administration was given the opportunity to reply, who answered and the co-defendant who opposed the appeal and requested its dismissal, with imposition of costs to the plaintiff.
THIRD.- The trial was received for evidence and was carried out with the result that appears in the proceedings, setting a day for its voting and ruling, which was carried out with the result that is now expressed.
FOURTH.- The formalities of processing have been observed, being rapporteur the Hon. Mrs. Magistrate Dª Inmaculada Rodríguez Falcón.
II LEGAL GROUNDS
FIRST.- The object of the present appeal is the Decree of the Mayor of the City Council of Teguise (Lanzarote), dated November 4, 1999, by which the company "Lanzagal Promotores y Exp. Hot. Canar. Consulting" was granted a building permit for the construction of a complex of 157 tourist apartments on plot 214 of the Special Partial Plan of Costa Teguise.-
The grounds for challenging the administrative act are:
1º.-)) Violation of the agreement to suspend the granting of licenses for the construction of new tourist accommodation offer that on January 14, 1999 had been adopted by the Cabildo of Lanzarote within the process of partial revision of the Island Plan of Lanzarote that at that time was in process, published in the BOP of January 15 and in the BOC of January 18, 1999 that affected the land for tourist use of the Special Partial Plan Costa Teguise.-
2º.-)) Lack of intervention of the Cabildo, who was never asked for the mandatory report of compatibility with the PIOT of prior, mandatory and binding nature (infraction of the D.T.6 of Law 9/1999 and of Decree 63/1991 in its article 6.1.2.1. A3)
3º.-)) Incompatibility of the license with the Island Plan of both the original text Decree 63/1991 and the revised text D 95/2000. Specifically, it violates both the determinations and standards as well as the limit of places established in Costa Teguise in the PIOTL Decree 63/1991.
4.-)) Other infractions of the legality:
1.- The license was granted with the basic project without conditioning its commencement to the presentation and approval of the execution project.
2.- The work authorized in the license lacks the mandatory Safety and Health Study.
3.- No fire protection project or health report was attached.
4.- There is no legal report.
5.- Its granting was not notified to the Cabildo
SECOND.- As a preliminary issue, both the City Council of Teguise and the co-defendant Lanzagal oppose the inadmissibility of the appeal due to its being out of time. Specifically, they point out that the appeal should have been filed within two months from the time the license being challenged became known.
They argue that the Cabildo had knowledge since May 18, 1999 by communication from the Government of the Canary Islands that the General Directorate of Tourism Planning and Infrastructure of the Government of the Canary Islands had granted prior authorization for a 4-key Tourist Residential Complex with detailed information of the project, number of accommodation places, typology and basic characteristics of the project.
In July 2000 the Cabildo had full knowledge of the realization of works. However, it only admits to knowing the license since November 13, two thousand.
Regarding the indications that may demonstrate the knowledge by the Cabildo of the license prior to the filing of the appeal, the defendants provide:
1.- A communication from the Head of the Tourist Infrastructure Service in which it is stated that on May 25, 1999, the communication of the Resolution of the Hon. Mr. Director General of Tourism Planning and Infrastructure was received by the Cabildo Insular de Lanzarote, in which the prior authorization is granted for a 4-key Residential Tourist complex, with capacity for 157 accommodation units that corresponded to 618 accommodation places promoted by Lanzagal Promotores S.L. in plot 214 of the Costa Teguise Partial Plan.-
2.- Resolution 1895/2000 of the Cabildo (document 5 A) of those provided with the writing of interposition that proves that the Cabildo knew the movement of land in plot 214 since July 2000 (document 5B)
However, the reason for inadmissibility must be rejected because the decisive factor is that there was never a reliable notification of the license to the Cabildo Insular from the City Council, as required by article 10.1 of the Law of Urban Discipline and also article 166.7 of Law 9/1999 of May 13, 1999, of Territorial Planning of the Canary Islands, so it is not possible to understand initiated the period of two months to appeal in court that establishes article 46.1 of the LJCA.-
In this sense, the full, complete and sufficient knowledge of the act requires the 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 the Law to enable the exercise of judicial action.-
It should be, therefore, as the initial day of the computation of the term to appeal to which the Cabildo points out, that is, the one in which it had at its disposal a copy of the license that according to the Cabildo itself was November 13.-
THIRD.- Regarding the grounds for appeal, the first is the one related to the granting of the license dated November 4, 1999 when the agreement to suspend licenses dated January 14, 1999 was in force.
The City Council of Teguise affirms in its claim that that suspension of licenses was illegal and based on this premise develops an argument of opposition to the referred agreement. In this regard, we must point out that this Chamber ruled in several judgments regarding the legality of the Agreement adopted by the Cabildo of Lanzarote of January 14, 1999 in which it was suspended in "the territorial scope of the so-called tourist centers and/or Special/Partial Plans of the Island Plan of Planning that is being revised. Costa Teguise... the granting of urban planning licenses for the construction of new accommodation offer that exceeds the building capacity of accommodation assigned by the Island Plan of Planning in Revision in the decade 1997-2007, since in these territorial areas are introduced determinations that involve modification of the current urban planning regime, being able to grant licenses based on the current regime provided that the new determinations of the planning that is being revised are respected. This suspension may not exceed the term of one year. Suspension that was agreed together with the initial approval of the revision of the Island Plan of Territorial Planning of Lanzarote (Decree 63/1991, of April 9)" in the judgments dictated in the appeals 1968/1998, 1982/1998 in which we confirmed the legality of the referred agreement and that are contributed in cars, and of which we highlight the following extracts in relation to the questions raised again by the City Council of Teguise by:
"the referral that makes the third final single provision to the state legislation allows to apply the institution of the precautionary suspension, to the studies of formation or revision of the island planning planning. It is the only way to avoid the initiation or consolidation of contradictory situations, with the planning in study, that would make illusory the ulterior validity of the same".
"the possibility of suspending the granting of licenses is not limited to the formation of PIOT, ... it should not be forgotten that the revision of this island plan involved substantial alterations of the same, fruit of the assumption by the Cabildo of new criteria "Strategy of Lanzarote in the Biosphere", that allowed to contain and moderate the rhythms of construction of the tourist places, allowing a sustainable development of the Island in the long term (Memory of the Revision) The procedure for the revision given the importance and the substantial changes assumed entails a procedure analogous to that of the formulation of the plans. Therefore, by virtue of the single final provision 3ª also the possibility of suspending the licenses at the time of the initial approval of the revision".
"Regarding the omission of mandatory reports... As the law is drafted, we consider that the report of the Ministry of Tourism is required, and it would be desirable to obtain it before the initial approval. However, this defect could be alleged in the case of definitive approval without the report that is mandatory. But not at this time, since, article 58.3 refers the moment of the report to the law of Island Plans, and this law, provides for the intervention of the Ministries up to three moments, initially, once the progress has been obtained, and after the initial approval. Then, not specifying or fixing a specific procedural moment, the intervention of the Ministry, we understand could occur at the time provided by article 11.1, as the defendant argues".
"Finally, the party alleges that the resolutions of the Cabildo are nothing more than an illegal response to the judicial resolutions of the Chamber. Of course, the Cabildo admits that they are the response to the resolutions of the Chamber that suspended a similar agreement for failing to comply with the procedure of article 125 of the Planning Regulations. In light of what has been exposed by both parties, we consider that the Cabildo, before the legal defects warned by the Chamber in the suspension orders, reversed the actions and gave the procedure of public information".
"We understand that the action of the Cabildo is a legal response and that it is not incurred in abuse of power. The reversal of actions was made to safeguard the process of reform of the PIOT that the Cabildo had put in place. So although the content of the progress was a mimetic reproduction of the previous revision document, the truth is that the procedure was reversed and, consequently, previous actions were invalidated, so it did not lack content the suspension of licenses, which was intended to preserve the already completed study of the progress. In addition, between the progress and the initial approval barely two months pass".
Therefore, the license granted contravened the referred agreement of suspension of licenses adopted during the revision of the PIOT that was in process. Suspension that temporarily affects all the requests formulated before and after the publication of the agreement of suspension. The judgment of the Supreme Court of January 28, 2000, which reproduces the judgment of May 30, 1997 among others specifies that the measure of suspension of the granting of licenses is precautionary and aims to "ensure the effectiveness of a future planning" so that according to such purpose, "the effects of the suspension must be the non-processing or resolution of any application for a license of land division or building while the precautionary measure subsists, being affected by it not only the requests formulated after the publication of the suspension but also the previous ones". Stating in the reports of the technicians of the office of the Island Plan that exceeded the building capacities allowed.-
The consequences of granting a license violating the legal system are of annulment. In this regard, the judgment of the Supreme Court of April 24, 2003 highlights that "we are not before the case of annulment contemplated in article 63.2 of the referred Law of Legal Regime of Public Administrations and of the Common Administrative Procedure but before the one foreseen in number 1 of the same precept, which establishes that the acts of the Public Administrations that incur in any infraction of the legal system are annullable, including the abuse of power, without the conditions that it demands to declare the annulment the cited number 2 of the same precept".
We cannot attend as the co-defendant exposes to the nullity of the Revision of the PIOTL, since Decree 95/2000 and its revision is in any case subsequent to the administrative acts analyzed so we can only examine the legality of the measures at the time they were adopted.-
Regarding the allegations of being before a consolidated urban land, or executed plans, the Supreme Court in judgment of sixteen of July of two thousand two, precisely resolving the appeal of cassation interposed against the judgment dictated by this chamber in the appeal 638/1991 affirmed that "To say that the Plan challenged attacks to these precepts for regulating with detail questions that affect the tourist accommodations, even being plans already executed, implies to ignore that the PIOT according to article first of the Canary Law 1/1987, of March 13, contain "urbanistic determinations" and that the section d) of its article third affirms that they will also contain: "the measures to defend, improve, develop or renew the natural or urban environment, specifying the mere prohibitions, the obligations that for such defense, improvement and development or renewal correspond to the Administration and the individuals", faculties that, in general, are inferred from the content of the mentioned article third and fourth, and that make possible the adoption of the urbanistic determinations that in the analyzed motive are understood as violating the invoked precepts. As if this was not enough, article 9.5 proclaims: "At the moment of agreeing the initial approval of the Plan, it may also be expressly agreed in said agreement the suspension of the granting of new licenses, in the zones in which, in its case, the plan varies the classification, qualification of the land, uses or intensities, being necessary to publish such suspension in the Official Bulletin of the Canary Islands and in the two newspapers of greater circulation of the corresponding province". What demonstrates the legal authorization for the regulation of the urbanistic determinations fought-
FOURTH.- Another of the grounds for appeal is the absence of the mandatory report of the Cabildo.
The premise from which we must start is that of the absence of Municipal General Planning. It is stated in the Certificate of Mr. Alonso González Lemes, General Secretary Authorized of the City Council of Teguise in which he affirms that "to 04 of November of 1999, date that is indicated as the one of granting of license for the realization of works in the plot 214 of the Special Plan of Costa Teguise, the Municipality of Teguise lacked of General Planning own in force".
The referred law 9/99, included a Sixth Transitory Disposition Municipalities without general planning of ordering, will govern, while this is not approved, the following rules:
a) This Law shall apply immediately.
b) The entire municipal area shall be classified exclusively as urban and rustic land. The urban land shall be integrated by the lands thus classified by virtue of a Project of Delimitation of Urban Land definitively approved prior to the entry into force of this Law. All other lands shall belong to the rustic land of Territorial Protection, except those of Protected Natural Space, which shall be classified as rustic land of natural protection and, where appropriate, the sectors of strategic developable land.
c) The granting of urban planning license shall require prior, mandatory and binding report of the corresponding Island Council.
Therefore, Law 9/99 was of immediate application, and consequently so were D.T. 6ª and article 166.5 c, so the file should have the legal report of the municipal technician and the prior mandatory and binding report of the Cabildo.
In this context we must emphasize that as stated in the file folio 333 the application for a building permit for the execution of the project was entered before the City Council on May 20, 1999, so it is Law 9/99 applicable to the application. In addition, the urban planning technical report dated November 3, 1999 showed the need to conduct a technical legal study to know if the license could be granted by the specifications of the PIOT of Lanzarote of 1991 and a series of articles thereof (folio 23).
On these omissions we must point out that the absence of the municipal legal report has been valued on occasions by the Chamber as a cause of annulment and not of radical nullity (contentious administrative appeal 158/2002 the circumstance of being before an execution project was valued and that, no precept of the Law leads to catalog such omission as a reason for radical nullity, nor is it a binding report). But in the case at hand in addition to the municipal report is omitted the prior, mandatory and binding report of the Cabildo. The pronouncement of the Cabildo regarding the application of the Island Plan of Lanzarote was necessary and indispensable.
The mandatory issuance of that report (or at least its request by the City Council) entail the character contrary to law of the license, since the established procedure is repeatedly infringed by not having obtained the cited report.
Therefore, and in application of articles 62.1 e) and 82 of Law 30/92, of Legal Regime of Public Administrations and of the Common Administrative Procedure, it is appropriate to uphold the claim declaring the nullity of the challenged act.
FIFTH.- It is appropriate, therefore, to uphold the contentious-administrative appeal with the indicated scope, whose consequences in relation to the execution of the acts declared null will be those that proceed in view of the effects that entail the declared annulment, being unnecessary, in addition to inappropriate, to continue forward, and examine the other grounds for appeal.
SIXTH.- No pronouncement is made on the costs of the process as no recklessness or procedural bad faith is appreciated in the defendant party (art. 139.1 LJCA).
Seen the cited articles and others of general application:
I RULE:
That after dismissing the cause of inadmissibility invoked by the City Council of Yaiza, we uphold the contentious-administrative appeal interposed by the Prosecutor Mrs. Mercedes Ramírez Jiménez, in the name and representation of the Island Council of Lanzarote, against the Decree of the Mayor of the City Council of Yaiza, mentioned in the First Background, that we annul for not being in accordance with law.
Without making pronouncement on the costs of the process.-
Notify the present resolution to the parties present in accordance with article 248.4 of the LOPJ
Thus we pronounce, command and sign
