The Contentious-Administrative Court Number 5 of Las Palmas has annulled the agreement of the Arrecife Plenary by which the agreement that allowed Mercadona to be established in the Argana neighborhood, on land owned by Juan Francisco Rosa, was approved. This urban agreement was approved in October 2013, under the government of CC, PSOE and Citizen Alternative. Now, the Justice has declared that agreement null, because it was approved without having responded to the allegations presented by a private individual.
It was precisely this person who decided to go to court then, which has now given him the reason. In his ruling, dated June 22, Judge Ángel Teba concludes that "it is appropriate to uphold the appeal" for this reason, so he does not analyze the rest of the arguments used by the plaintiff to support the nullity of the agreement.
Thus, the judge orders to retract the actions and that these allegations "be subject to due response" by the City Council, "entering into the merits of the same." In addition, he imposes on the Consistory the payment of the procedural costs of this lawsuit, "up to a limit of 3,500 euros."
Mercadona and Galerías Rosa, co-defendants
Along with the City Council, Mercadona S.A. and Galerías Rosa S.L. were present in the case as co-defendants, who also asked that the appeal be rejected. Among other things, they asked that it not even be admitted for processing or that it be dismissed, since they argued that the plaintiff had incurred in a "procedural deviation" and that what she intended was to "rise up against the Partial Plan of the Action Unit Number 12." That Plan was approved a few months before the agreement was given the green light, and it was the one that allowed the urbanization of this area, where the Argana Centro was already located and where other commercial surfaces have been created later.
In this regard, the defendants argued that the approval of the Plan had also been appealed by this same person before the Superior Court of Justice of the Canary Islands, so they pointed out that the issue was already 'sub judice'. "Such a position cannot be shared because although it is true that Fátima González Rodríguez in her lengthy lawsuit charges against the Partial Plan, it is no less true that the First Fact of her Lawsuit is aimed at substantiating the nullity of the administrative act against which she rises by understanding that it had to respond to the allegations presented on October 5, 2012 against the Management Agreement instead of rejecting them as untimely," the ruling responds.
Regarding the inadmissibility of these allegations by the City Council, the judge considers that it was not in accordance with the law. And, according to what he underlines, a technical report from December 2012 informed the plaintiff that her allegations would be answered "in the report that will be issued for final approval." However, when that report arrived eight months later, what it argued was that these allegations "could not be taken into account because they were untimely." And it is that although the agreement had been subject to public information on those dates, after having made changes to the document, and therefore open to allegations, the City Council pointed out that this public exhibition was due to an "error" and that it should not have occurred.
"Existing a certification from the Administration itself in which it is admitted that the plaintiff's claims were filed on time, it is not possible to reject them later as untimely, not even under the pretext of the undue opening of a period of public information, since in such a case the Local Corporation had to proceed with the ex officio review of such a decision. Another thing would be to contradict the principles of good faith and legitimate trust that should inspire the relations of the Administration with the citizens," the judge points out.
"Multiple illegalities" and a "double fraud", according to the plaintiff
Although the ruling is limited to analyzing one of the reasons for the appeal to annul the approval of that agreement, the plaintiff also included other arguments, raising "the lack of adjustment to the law of the approved execution system (concert) and various illegalities in relation to the processing of the Partial Plan of the Action Unit Number of Argana Baja".
In addition to this appeal and the one filed before the TSJC, the plaintiff had also presented allegations during the processing of that Plan, pointing out that it had incurred in "multiple illegalities" in its processing. "If the Partial Plan object of allegations were finally approved, the land that the General Plan clearly allocates to industrial use would be converted to an intensive commercial use, to legalize shopping centers that should never have been authorized by that City Council, because the General Plan prevented it, and allow new intensive commercial establishments à la carte," the letter argued, referring to those that have already been created on Rosa's land.
In addition, the letter recalled that there are other sectors of Arrecife where commercial use is already allowed, such as 3, 4 and 9, "with the circumstance that Sector 4, called Maneje 1, in the vicinity of Action Unit 12, has assigned by the General Plan the commercial use without restrictions." That is, any type of business could be installed there, such as those that had been announced (and have ended up being installed) in Rosa's plots, without the need to change the use of those lands.
