The Second Section of the Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands (TSJC) has annulled in a final judgment the license granted by the Yaiza City Council for the construction of a 470-bed hotel on plots 45 and 46 of the Montaña Roja Partial Plan, in Playa Blanca, once again siding with the César Manrique Foundation.
The TSJC once again points out that the Yaiza City Council should have requested the Cabildo for a report on compatibility with the PIOT, since, according to the sentence, "it is a procedure linked to the need to guarantee insular interests linked to compliance with the PIOT and prevent actions incompatible with the limitations established by insular planning from being carried out, as we said, hierarchically superior to municipal planning instruments."
The sentence states that, in this case, "it is clear and obvious that the mandatory report was omitted, required by a binding determination of the PIOT, which leads this Chamber, without the need to enter into other considerations, to declare the nullity of the license granting agreement, since to understand otherwise would be to give legitimacy to an action outside the urban planning legality applicable to the island of Lanzarote, which must be understood as a whole, in which the Island Plan constitutes an essential piece of the scheme."
The ruling also recalls that in a previous judgment of December 3, 2007 [relating to plot 56 of the same Partial Plan], it was already expressed that "it cannot be said that the precept is inapplicable to the urbanization of Montaña Roja as a consequence of the declaration of nullity by judgment of this Chamber of certain articles of the PIOT in relation to the Montaña Roja Partial Plan. Precisely, the report is required 'as long as the municipal and partial planning is not adapted'. That is to say, it is difficult to find a clearer case of application of the determination and the need for a report because the annulment of certain determinations of Montaña Roja precisely means that we are dealing with a previous planning that is not adapted to the PIOT."
In addition, the sentence refers to the lack of publication of the urban planning regulations of the Partial Plan, highlighting that, in this case, neither "the judicial expert, the appellant or this Chamber have been able to find the publication data of the Detailed Study, but what is more, if we review the administrative file again, we observe that the technical report refers to compliance with the stages plan and not with an urbanization project. That is to say, that the execution project presented is not compared with the regulations of hypothetical application, which is of special importance in this case, in which it is stated that the plot does not have the condition of a building plot. Therefore, the Detailed Study and the Urbanization Project required by the Montaña Roja Plan never came into force, so a license should never have been granted or extended in accordance with the unpublished and ineffective determinations thereof."
With this ruling, there are now 19 appeals filed by the César Manrique Foundation that have been upheld by the courts, 17 of them with final judgments, which have resulted in the annulment of 13,500 tourist and residential beds.
