The César Manrique Foundation has presented allegations to the preliminary draft of the Canary Islands Land Law before the regional Ministry of Territorial Policy. The FCM had already shown its rejection of the preliminary draft law, which it has now expressed in a 25-page document of allegations. They consider that it represents "a first-rate threat to the economy, land management, the landscape and the natural resources of the Canary Islands." "It will constitute an instrument that will encourage speculation, rampant development and legal uncertainty, compromising the work of the municipal technical offices and breaking the urban and territorial cohesion of the Archipelago due to the municipalization of powers and the renunciation of the Government of the Canary Islands to urban planning," he maintains.
In that public criticism of the preliminary draft, the FCM demanded that the Government withdraw it and lay the foundations for a "new proposal on a prior participatory process, based on the consideration of land as a common good and not as a commodity" and has asked for it again in these allegations. Thus, it asks that it be withdrawn to "initiate a process of participatory deliberation." In those allegations, which they presented on April 26 within the period of public information, they critically examine the Preliminary Draft from a technical urban-legal perspective.
They begin by criticizing the "absence of an analysis and diagnosis of the territorial, urban, environmental and tourist situation of the Canary Islands on which the Preliminary Draft intends to influence". "When its content is delved into, it is noted that the Preliminary Draft of the Land Law makes a clean slate of the legislative culture of the territory accumulated in the Islands during the last decades, despises the social urban-territorial culture built in the Canary Islands and, under the format of a classic land law, it is actually presented as an instrument intended to blow up historical advances in terms of management and land management, as a prior condition to land uses: superior hierarchy to the local in the government of the territory, sustainability and burden, land as a limited resource, natural values..."
The FCM, in its allegations, recognizes the aspects that it considers positive in the drafting of the Preliminary Draft: legislative unification in a single regulation, elimination of the expiration of planning instruments, regulation of the conditions for adapting planning instruments to the legal framework not subject to specific deadlines, fee for financing public actions provided for in the Impact Catalog, single report, simplification of the authorization of works on urban and rustic land and regulation of the rehabilitation of buildings with ethnographic and architectural value.
A "controlled demolition" of the system
Next, they identify the "negative and questionable" aspects. Among them, the "rejection of the new distribution of powers, which now fall on the municipalities, ending the principle of integrated planning" stands out. "This is the most far-reaching issue of the preliminary draft and the main objective of the political and economic agents, who seek the 'controlled demolition' of a system that has worked reasonably well since the constitution of the Autonomous Community of the Canary Islands, and that responds to the need to guarantee the territorial and social cohesion of the islands as an adequate counterweight to their natural fragmentation and the asymmetries between the municipalities." The document of Allegations presented by the FCM adds in this regard that "none of the Autonomous Communities recognizes all the City Councils the power to definitively approve their own general planning, nor to carry out the strategic environmental assessment of the corresponding planning instruments, and in general they do not renounce the prior control of legality either; and when they attribute the power for the definitive approval of the planning, such possibility is limited to the municipalities with the largest population...".
The document states that "although it is said that the Government of the Canary Islands plays a determining role in the management of the territory and natural resources", the truth is that with the criteria for the distribution of powers of articles 13, 14 and 15 of the Preliminary Draft, the Government of the Canary Islands renounces the effective exercise of its exclusive powers, and empties the content of the planning instruments of an autonomous scope and the reports on island and municipal planning, which results in the amputation of its most important exclusive power and the weakening of regional unity and territorial and social cohesion."
At the same time, the FCM believes that "there is a significant emptying of the content and scope of the Island Planning Plans, significantly limiting their capacity to condition municipal planning directly or through territorial planning […] Consequently, there is a complete dismantling of the legal planning system that the Autonomous Community of the Canary Islands had provided itself with through a set of laws approved by a large majority, when not unanimously […] However, the main problem lies in the fact that this dismantling and this collapse is not reversible."
Wineries allowed in "any category of rustic land" with wine-growing exploitation
Regarding the legal regime of rustic land, "the provisions of the preliminary draft are especially worrying, since they would imply an extraordinary permissiveness not only to what can be considered characteristic uses of rustic land (agricultural, livestock, forestry, extractive, or infrastructure), legitimized only by municipal license, but also to sports, leisure, tourist, cultural, scientific, educational and informative uses that are considered as ordinary uses, activities and constructions of rustic land (art. 61)".
Likewise, they point out that in any category of rustic land where there are wine-growing exploitations, the construction of wineries and facilities linked to the exploitations that have to do with the use of the agricultural, livestock or fish farming potential may be authorized, provided that there is no express prohibition of the island planning or protected natural spaces and the need for their implementation in the surroundings of the exploitation is accredited.
"Even, on an exceptional basis, in rustic land not categorized as environmental protection, industrial, tourist and equipment and service residential uses, not complementary to ordinary uses, may be authorized, provided that they are integrated into actions of public or social interest, 3 contribute to the planning and rural development or that they must necessarily be located on rustic land and that they are not expressly prohibited by the planning."
"There are no uses, activities and constructions that cannot be accommodated by rustic land"
In this way, the FCM points out, "there are no uses, activities and constructions, whatever their nature, that cannot be accommodated by rustic land, with the sole limitation of the prohibition of uses of public interest and projects of autonomous or island interest in rustic land of environmental protection (arts. 63.1 and 124.3)". The FCM's allegations are also critical of "the establishment of economic compensation for the conservation of environmental soils and island landscapes (arts 8 and 37.3)".
"Despite the apparent attractiveness of this proposal, it is considered inappropriate to create this expectation through building incentives, instead of doing so with the spirit of the Law on Natural Heritage and Biodiversity (artº 5.2, b and c of Law 42/2007, of December 13), through budgetary mechanisms linked to agreements with the owners or program contracts linked to the figure of land stewardship […] This proposal follows the bad example of the environmental territorial systems of Law 14/2014 and should be eliminated to avoid opening Pandora's box of converting the conservation of the natural landscape into building incentives, which are also assigned or granted without any consideration to the compensated property."
"Emptying" of the Island Plans and "breaking" of the Canary Islands Network of Natural Spaces
With regard to the Planning Guidelines, it is stated in the Allegations that "the regulation contained in the preliminary draft implies a considerable weakening of this figure, which from being the figure that occupied the upper vertex of the legal system of territorial, urban and natural resource planning, becomes a mere "frame of reference". In addition, the Preliminary Draft proposes the total repeal of the General Planning Guidelines, without establishing a specific mandate and a specific deadline for those that must replace them, losing the possibility that the Autonomous Community can condition island or municipal planning through determinations that respond to the necessary prevalence of regional public interest."
Regarding the Island Planning Plans, it is criticized that "in general terms, the regulation contained in the Preliminary Draft intends a notable emptying of its capacities and attributions, firstly as a consequence of the general mandate derived from the euphemistically called "principle of containment", which prohibits planning from going beyond what is strictly necessary to fulfill its functions and declares null and void the determinations that exceed said prohibition (artº 82.3), which will generate an undesirable focus of conflict over the determination of such excesses".
"The preliminary draft maintains the functions or capacities of the PIO on island systems and supramunicipal equipment, but eliminates its potential for the definition of the island tourist model, for the definition of the criteria for the delimitation of rural settlements, and for the territorial planning of economic activities and sectoral actions with territorial impact, while eliminating the optional content and the criteria for the sectorization of developable land and the delimitation of integrated management areas, which are elements of enormous potential for the configuration of the island territorial model", the FCM points out in this regard.
In relation to the Plans and Regulations for Protected Natural Spaces, it points out that "the determination to replace the competence of the autonomous Administration for the approval of the Plans and Regulations for protected natural spaces with the capacity of the Island Councils for their formulation, processing and approval, completely breaks the regional unity of criteria and the territorial and social cohesion of the islands, and will surely generate seven different forms and criteria for the formulation of natural space planning, and in the medium term will give rise to seven networks of natural spaces, breaking the regional unity of the Canary Islands Network of Natural Spaces."
"Projects of island and autonomous interest deserve special interest due to their discretion and impact on island systems and the speculative dynamics of the land", continues the Foundation. "These are projects of an exceptional nature that, with a brief processing and, where appropriate, evaluation, legitimize the implementation of uses and the realization of actions of any nature in any type of land, with the exception of rustic land of 4 environmental protection, displacing the previous planning contained in the island or municipal planning. The problem posed by this type of exceptions is precisely their ease, power and multifunctionality, so they tend to replace ordinary instruments, generating a series of unconnected, not integrally planned, dispersed actions, contrary to any idea of sustainable development, which generate speculative tensions and mobility demands that have not been correctly evaluated and integrated into the planning system."
A "very lax conception of legality" with an "unconditional amnesty" to buildings
Likewise, the FCM pronounces on the Additional and Transitory Provisions considering that "the Additional and Transitory Provisions contain a set of precepts that share a very lax conception of urban legality, to the extent that they intend to practice a kind of generalized and unconditional amnesty with buildings that are largely not covered by the corresponding enabling titles."
In another of the allegations of the document presented by the FCM, it is pointed out that "one of the most striking obsessions of the preliminary draft is the attribution of most of the evils of the legal planning system to the two-phase nature of the planning approval procedures and to the intervention of the Island Councils and the Government of the Canary Islands in the planning instrument approval procedure, from which derives the requirement to guarantee "the autonomy of each administration to exercise its powers without undue interference from other public entities" (section XIV of the Preamble). For this, the two-phase approval procedure is replaced by a single-phase procedure".
"Elimination of guarantees that until now provided legal certainty"
Thus, the FCM considers that "this renunciation of the control of legality in favor of the courts of justice will mean the elimination of guarantees that, until now, had provided much legal certainty to the Local Corporations themselves that, despite the occasional delays that in some cases could entail, appreciated its result to the extent that this double control mechanism eliminated many sources of legal conflict.
"This indiscriminate referral of ex post legality control to the courts of justice will entail considerable delays, the artificial creation of situations of accomplished facts, considerable economic and social costs, and a notable increase in insecurity and vulnerability, diverting judicial conflict towards the municipalities that mostly do not have the legal apparatus to deal with it." It is concluded that "moreover, the argument that in some Autonomous Communities there are already single-phase procedures lacks consistency, which seems to ignore the fact that in the Canary Islands we are referring to fragmented territories, where land is a scarce and non-renewable resource, and where the Government of the Canary Islands and the Island Councils play an essential role in territorial and social cohesion, so the comparison is completely inadequate and contributes nothing to justify the proposal in question".
The FCM reiterates in the allegations its request to "order the withdrawal of the Preliminary Draft of the Land Law of the Canary Islands, to initiate a process of participatory deliberation that leads to the shared elaboration of an appropriate analysis and diagnosis, as a prior step to the elaboration of a normative preliminary draft that responds to the needs and demands of citizens and institutional, economic and social agents; and failing that, issue the appropriate instructions to modify the text of the preliminary draft in the terms suggested in the written allegations presented."
