JUDGMENT REF: RCA nº 1.712/00
Most Illustrious
President: Mrs. Cristina Páez Martínez-Virel
Magistrates: Mr. César José García Otero
Mrs. Inmasculada Rodríguez Falcón.
In the city of Las Palmas de Gran Canaria on October 31, 2005.-
Having seen, by the Second Section of the Administrative Litigation Chamber of the Superior Court of Justice of the Canary Islands, with headquarters in Las Palmas de Gran Canaria, this appeal nº 1712/00, followed by the 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 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 and intervening as co-defendant the Attorney Mr. Bethencourt representing Hotel Princesa Yaiza S.A.; regarding urban planning, the amount being greater than 25 million pesetas.
I- BACKGROUND.-
FIRST.- On December 11, 2000, an administrative appeal was filed by the Attorney Mrs. Ramírez Jiménez in the representation she holds against the Decree of the Mayor of the Yaiza City Council (Lanzarote), dated October 9, 1998, by which the company Kapell SA was granted a building permit for the construction of a 3-star Apartment Hotel on plot "E" of the Costa Papagayo Partial Plan, municipality of Yaiza.
The same Attorney Mrs. Ramírez Jiménez requested the extension of the appeal to the Resolution of the Mayor of Yaiza dated July 25, 2001, which granted a license for the Execution of a four-star Hotel on plot E of the Costa Papagayo Urbanization in Playa Blanca.
This Chamber, by means of an order, agreed to the extension of the appeal.
SECOND.- Once the extension was agreed, the corresponding lawsuit was filed, in which the estimation of the administrative appeal was requested and "... the nullity of the appealed acts be declared, ordering the demolition of the works that have been executed under them as they are incompatible with the Island Plan of Territorial Planning of Lanzarote and with its revision approved by Decree 65/2000, of May 8, all with express imposition of costs to the defendant City Council".-
THIRD.- For its part, the defendant Administration and the co-defendant 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 Magistrate Mrs. Inmaculada Rodríguez Falcón, who expresses the unanimous opinion of the Chamber.-
II LEGAL BASIS
FIRST.- The object of the appeal is the claim for radical nullity or annulment of the following acts:
1.- Decree of the Mayor of the Yaiza City Council (Lanzarote), dated October 9, 1998, by which the company Kapell SA was granted a building permit for the Construction of a 3-star Apartment Hotel on plot "E" of the Costa Papagayo Partial Plan, municipality of Yaiza.
2.- Resolution of the Mayor of Yaiza dated July 25, 2001, which granted a license for the Execution of a four-star Hotel on plot E of the Costa Papagayo Urbanization in Playa Blanca.
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, in summary, can be summarized as follows:
A Due to invalidating irregularities in the processing of the license, which include as grounds for radical nullity:
A)) Infringements of the PIOT of Lanzarote approved by Decree 637/1991, of April 9, whose articles:
a) 3.3.2.4.A) Prevented the granting of licenses for an establishment of a category lower than four stars.
b) 6.1.3.1.A.3 the granting of licenses was conditioned to the fact that no more than 50% of the building capacity for tourist accommodation assigned by the Island Plan to the Partial Plan had been authorized.
c) No new places could be authorized as long as more than 50% of the places had been authorized.
B)) Lack of notification to the Island Council of the license granted in violation of the provisions of article 10 of Law 7/1990, of May 14, and violating the duty of collaboration between administrations. With violation of an essential procedural step to the detriment of the powers of another intervening Administration.
C)) It was granted in fraud of law without following the procedure for the review of final administrative acts and for the sole purpose of preventing the review of the PIOT from adding obstacles to the construction intended by the urban developer. An appeal against a final administrative act was upheld, or the power of review was exercised without due motivation.
D)) Invalidity due to ineffectiveness of the license that expired six months after its notification. This prevented the granting of the execution license.
E)) The authorized execution project is a new and different project and therefore should have been rejected as an execution project of the previous basic project. In addition to being submitted to the relevant reports.
F)) The authorized tourist complex did not comply with the applicable planning both in terms of the Revision of the PIOT of Lanzarote approved by Decree 95/00 and also the standards applicable to tourist land regulated in Decree 10/2001 of January 22. It authorizes ten more places than the maximum possible, nor does it have the required complementary equipment.
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 Island Council was aware of the building permit prior to November 13, 2000, which is the date on which, according to the report of the Secretariat of the Island Council (document 6th attached to the writ of appeal), the Office of the Island Plan, attached to the Area of Territorial Policy and Environment, became aware of the aforementioned municipal license.
The City Council maintains that "... long before November 13, 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 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 relevant of the documents that were in the archive".
In short, it is pointed out that the City Council allowed the personnel sent by the Island Council 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 Office of the Island Plan 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 Costa Papagayo.
However, the ground of inadmissibility must be rejected because 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 for appealing in court established in article 46.1 of the LJCA has begun.
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 Island Council itself does not constitute notification in the sense required by the Law to enable the exercise of legal action.
Moreover, it is not even proven that any official of the Island Council had knowledge of the act challenged in the exercise of his functions, and the report of the urban planner and the legal technician of the Office of the Island Plan of the Island Council of Lanzarote (evidence branch of the plaintiff entity) is significant, in which it is indicated that they did not have knowledge prior to October 10, 2000, that the Yaiza City Council had granted a building permit on plot E of the Costa de Papagayo Partial Plan. In any case, the photocopy of the alleged license was obtained on November 13, 2000, through members of the Ecological Brigade.
Therefore, the initial day for calculating the period for appealing must be the one indicated by the Island Council, that is, the one on which it had a copy of the Extension Decree at its disposal.
THIRD.- As a second cause of inadmissibility, the Administration opposes, with regard to the extension of the appeal to the "Decree of the Mayor of Yaiza of July 25, 2001, which approved the project for the execution of works", that "The Island Council of Lanzarote agreed to file an administrative appeal by Resolution of its President number 3177/00 dated November 20, 2000, against the administrative act by virtue of which the Mayor of Yaiza granted on October 9, 1998, a building permit for the construction of a three-star apartment hotel on plot E of the Costa de Papagayo Partial Plan" and therefore the extension took place without "any other decision being adopted by the competent body of the plaintiff entity".
This Chamber considers that the cause of inadmissibility stated does not exist insofar as Resolution 1596/05 was attached to the writ of conclusions, in which it was agreed to ratify, as far as necessary, the extension of administrative appeal number 1712/2000 filed before the Second Section to the Resolution of the Mayor of Yaiza of July 21, 2001.
Case law tends to favor the exercise of actions before the courts of justice, removing formal obstacles that limit or prevent access to the courts. The "negligence and passivity in correcting a defect that has been revealed in the process" is decisively assessed.
In the judgment of the Supreme Court of September 20, 2004, it is highlighted that "it is possible to remedy not only the lack of presentation of the ratification agreement after the filing of the appeal, but also the lack of adoption thereof after the exercise of the action, ... "we are in the presence of a remediable procedural requirement, and remediable not only retroactively to prove that the corporate agreement and prior opinion existed, but also with a ratifying or validating character, in such a way that its formal constitution is allowed later, although referring to the date prior to the exercise of the challenging action, since what is remedied is not the lack of accreditation but the very existence of the requirement, to make judicial protection effective".
The "pro actione" principle leads to a restrictive character regarding declarations of inadmissibility of the procedure and supports the correction at any time, even with the writ of conclusions (STS Chamber 3 of June 3, 2002).
FOURTH.- As for the merits, the first group of grounds refers to the violation of different precepts of the PIOT of Lanzarote in its wording approved by Decree 63/1991:
-Article 3.3.2.4 I A) Determinations. "The new hotel offer (establishments included in Decree 149/1986, of October 9, on Hotel Management of the Autonomous Community of the Canary Islands) must represent at least 25% of the total new tourist places in Puerto del Carmen, Costa Teguise, Playa Blanca and La Santa Sport. The category of the new hotel establishments in the tourist population centers will be at least four stars".
-Article 6.1.2.1. A) Transitory Provisions. Determinations.
A.1) Within two years, the City Councils must adapt their planning instruments to the determinations of the Island Plan, and the foregoing obligation shall be deemed fulfilled with the presentation of the complete documentation to the Ministry of Territorial Policy, after provisional approval by the Municipal Corporation and attaching the mandatory report of the Island Council on compatibility with the Island Plan. In case of non-compliance, the aforementioned Ministry may be substituted ex officio in the stage in which it is.
A.2) For the purposes of the compatibility report to the Island Council, a copy of the municipal and partial planning instruments, the granting of licenses, including opening licenses, will require a prior report from the Island Council on compatibility with the Island Plan, to be issued within one month, and shall be deemed favorable after that period has elapsed. To facilitate the procedure, the Island Council may establish, through the Island Urban Planning Commission, which will collect and systematize the information necessary to issue the report.
Licenses may not be granted if they have been granted for more than 50% of the building capacity for tourist accommodation assigned by the Island Plan to the Partial Plan in the corresponding four-year period.
-Article 4.1.3.6. Special Plans and Tourist Partial Plans that the Island Plan fully or partially respects, in terms of delimitation and buildability, but modifies, in a specific and delimited way, the distribution of said buildability among the different uses and activities.
A) Determinations
The basic specifications of each Partial and/or Special Plan that are reflected in the following sheets result from the application of the general criteria and determinations contained in the following articles of these Regulations:
-The distribution of the total buildability recognized in each Partial and/or Special Plan among the different uses allowed by this Island Plan (marketable services and facilities, tourist accommodation and permanent residence), of the general criteria contained in article 4.1.2.2.b).
-The determination of the number of places (maximum in tourist accommodation, minimum in permanent residence) corresponding to the buildability of each of the uses, of the determinations contained in articles 3.3.1.4.1. A) and B) and 3.3.2.4.1, 2, 3 and 4.
-The programming of the tourist and residential places planned for four-year periods before and after the year 2000, of the general criteria contained in article 4.1.2.2.c).
The Appellant City Council states that the aforementioned articles were no longer in force because the final judgment issued by the Chamber on February 25, 1998, in administrative appeal number 638/1991, which provides for the annulment of a general precept, has general effects.
This Chamber does not share this interpretation for the following reasons:
1st.- The judgment issued in appeal 638/1991 has the scope established and specified in its own ruling, which is the declaration, among others, of article 4.1.3.6 insofar as it modifies the buildability, number of places and programming provided for the Special Plan of the National Tourist Interest Center Montaña Roja" and it also declared the nullity of the articles "articles 4.1.2.2. A 2.b.2 and 2 insofar as they impose the obligation on Club Lanzarote S.A. to adapt the Special Plan of the National Tourist Interest Center Montaña Roja".
Therefore, the judgment does not have a general scope, but is limited to the Special Plan of the National Tourist Interest Center Montaña Roja.
2nd.- In another vein, the judgment has not been published by this Chamber, which has declared that there is a cause of legal impossibility of execution of the judgment, in an order dated September 2, 2005. Therefore, it cannot be intended to extend the effects of the aforementioned judgment to those who have not appealed the general provision.
3rd.- Finally, we must point out that precisely the act that is being appealed does not apply the PIOT of Lanzarote, but ignores it for the reasons stated by the City Council. It is precisely the failure to observe the PIOT of Lanzarote that is the reason for the appeal.
Regarding the Island Planning Plan, we must point out that the Supreme Court, in its judgment of July 16, 2002, when resolving the appeal in cassation in appeal 638/1991, stated, regarding municipal autonomy, that "to say that the challenged Plan violates these precepts by regulating in detail matters that affect tourist accommodation, even in the case of plans already executed, implies ignoring that the PIOTs, according to article 1 of Canary Islands Law 1/1987, of March 13, contain "urban planning determinations" and that paragraph d) of its article 3 states 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 correspond to the Administration and individuals for such defense, improvement and development or renewal", powers that, in general, are inferred from the content of the aforementioned articles 3 and 4, and that make it possible to adopt the urban planning determinations that in the analyzed ground are considered to violate the precepts invoked. If this were not enough, article 9.5 proclaims: "At the time of agreeing the initial approval of the Plan, it may also be expressly agreed in said agreement to suspend the granting of new licenses, in the areas where, where appropriate, the classification, qualification of the land, uses or intensities are varied by the plan, and such suspension must be published in the Official Gazette of the Canary Islands and in the two newspapers with the largest circulation in the corresponding province". This demonstrates the legal authorization for the regulation of the challenged urban planning determinations.
It is striking that the Municipal Administration, the affected municipalities, have not challenged the appealed rule when they would be the ones truly harmed by the breach of the precepts alleged in the ground. It is necessary not to lose sight of the fact that the approval of the PIOT of Lanzarote entailed (except for the modifications introduced by the Canary Islands Government) a maximum agreement of the various mayors of the municipalities of the Island, representatives of the municipal sentiment, who, for reasons of coordination and efficiency and in the interests of the Island as a whole, have overcome an approach that considered the strictly local powers in isolation and without that global vision. Only from a perspective that analyzes all these extremes can a response be given to the problem posed. From this global island perspective, this Chamber understands that the alleged violation of Local Autonomy does not exist".
In the sixteenth ground of the same judgment, although for the purposes of compensation, the Supreme Court points out that "the only expenses due to excess urbanization that can be taken into consideration are those carried out until 1991, the date of entry into force of the PIOT, because from this moment on the plans must adapt to the PIOT, and not continue their execution, which is what is done in the expert evidence.
FIFTH.- Therefore, the precepts of the PIOT of Lanzarote invoked by the Island Council were applicable, consequently the license granted on October 9, 1998 authorized a hotel establishment "hotel-apartment" with a three-star category not allowed; and, in addition, it does not have the prior report of the Island Council on compatibility with the PIOL necessary as it is a municipal planning not adapted.
To the foregoing, we must add the violation of the procedure that occurred when granting the license:
1st.- On March 5, 1998, the Yaiza City Council issued a Decree denying the license requested by Mr. Miguel Ángel Armas Matallana representing Kapell for the construction of an aparthotel on plot E of the Costa de Papagayo Partial Plan.- The notification made on March 6, 1998 is recorded (folios 27 and 28)
2nd.- On June 26, 1998, that is, more than 3 months later, Kapell requests the rectification of the agreement pursuant to article 105.1 of Law 30/1992
3rd.- The Secretary of the City Council issues a report dated November 17, 1997, which he describes as "complementary to the one issued at the time, in this same file dated September 18, 1996" and in which he sets out the debatable nature of the report issued by the Office of the Island Plan and therefore its legal discrepancies with respect to the interpretation held by the Island Council. He concludes that "there is no legal impediment to granting the requested license for the construction of an aparthotel on plot E.
4th.- The license of October 9, 1998, the challenged act, was granted.
Although article 105 of Law 30/1992 of November 26, 1992, in the applicable wording, allowed the Administration to revoke its express or presumed acts, not declaratory of rights and those of encumbrance, at any time, it required that such revocation not be contrary to the legal system.
Thus, the Supreme Court, in its judgment of September 29, 2003, highlighted that "the ex officio review of administrative acts is situated between two opposing demands: the principle of legality, which postulates the possibility of revoking acts when their illegality is found, and the principle of legal certainty, which postulates the preservation of acts already issued and their administrative irrevocability when they are declaratory of rights. If an administrative act is not favorable, it is an encumbrance, the aforementioned tension between both principles does not occur in the way it does when it comes to acts declaratory of rights, and the revocation of such acts by the Administration, first free, is then subject, according to article 105 LRJ and PAC, to the fact that it is not contrary to the legal system (currently, in addition, according to the wording given by Law 13 of January 1999, to the fact that it does not constitute a dispensation or exemption not permitted by law or is contrary to the principle of equality or the public interest).
In this case, the revocation of the act that had become final was contrary to the legal system. Deviating from the procedure for granting licenses, restarting the procedure that ended with a denial resolution, based on the reinterpretation of the municipal reports in folios 10 and 11 and also based on an exposition of the discrepancies that existed with the report provided by the technicians of the Island Council.
Therefore, we understand that this revocation violates the procedure that must be followed for the granting of municipal licenses, the City Council having come to deny the license, a final denial act, considering that it violated the applicable legal system. It is revoked without further ado based on a reinterpretation of the precepts of the PIOL contrary to the legal system, as we have explained.
Therefore, the administrative appeal is upheld with the indicated scope, the consequences of which in relation to the execution of the acts declared null will be those that proceed in view of the effects entailed by the declared annulment, being unnecessary, as well as inappropriate, to continue and examine the other grounds for challenge, in particular those referring to the incompatibility of the licenses with the determinations of the Island Planning Plan of Lanzarote and, ultimately, to the intrinsic legality of the act.-
SIXTH.- No pronouncement is made on the costs of the proceedings as no recklessness or bad faith is observed in the defendant party (article 139.1 LJCA)
Having seen the aforementioned articles and others of general application:
III WE RULE:
That, after dismissing the cause of 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 the Yaiza City Council, mentioned in the First Background, 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 roll, we pronounce, order and sign.-
