THE TSJC CLAIMS THE FILE, AFTER THE APPEAL OF AN INDIVIDUAL

The new Special Plan of La Geria is already in the Courts

The TSJC has requested the Government of the Canary Islands to send the file, after admitting the contentious-administrative appeal filed by an affected individual. Along with this one, would others have been presented?

December 4 2014 (20:50 WET)
The new Special Plan for La Geria is now in the Courts
The new Special Plan for La Geria is now in the Courts

The Superior Court of Justice of the Canary Islands is already processing at least one contentious-administrative appeal against the new Special Plan of La Geria, definitively approved by the Cotmac on July 29. After admitting this appeal from an individual, the Second Section of the Contentious-Administrative Chamber has requested the Government of the Canary Islands to send the entire file of this document, to incorporate it into the procedure.

The information has been made public by the Regional Ministry of Territorial Planning of the Canary Islands Government itself, which has published in the Official Gazette the agreement to comply with the requirement of the TSJC. The Executive makes this resolution public to "notify all interested parties" about the existence of this procedure and the referral of that file to the Court, so that if they deem it necessary, they "can appear as defendants" in the procedure within nine days.

Thus, four months after being approved, this document begins a new battle in the Courts, after the previous Plan of La Geria was annulled by several final judgments, following appeals filed by individuals. 

 

"The Plan is to be thrown away"


The appeal that has given rise to this new procedure has been filed by the owner of a construction that is located in La Geria, within the municipality of San Bartolomé, but there would be several more already raised to the TSJC.

As explained by the affected party to La Voz, her claim focuses on a road contemplated by the Plan next to her house, "in the middle of the farm", and that "does not lead anywhere." At the time, she presented allegations but, as they were not addressed, she has decided to go to the Courts.

In addition, she is very critical of the content of the entire document. "The Plan, in general, is to be thrown away," she argues, although her appeal focuses on the part that affects her property. Like her, she knows that other neighbors and owners of plots or constructions in La Geria have also gone to Justice, in what will be a new test for this document, which has returned to see the light for the second time, after a process that began more than a decade ago. 

 

A Plan in the midst of controversy


The new Special Plan of La Geria was already immersed in controversy as a result of the report made by the Cabildo's lawyer Joana Macías, at the request of the judge in the Stratvs case. In that opinion, the lawyer pointed out that the Plan includes determinations "contrary to the law" that directly affect and benefit the Stratvs winery, privileging it over the rest of the wineries and trying to give it legal fit in the planning.

In addition, she warned that the entire document is "vitiated by nullity", because when executing the judgment that annulled the previous Plan in 2012, the new document "was not approved following the legally established procedure for its formulation, processing and approval." In this regard, the lawyer recalled that when a judgment declares the nullity of a planning instrument, "it is not possible to preserve, correct or validate procedures, as well as the transferability of administrative acts"; and stressed that the administration "lacks any power to alter or modify the content of judgments."

Also, among other things, she warned that "there is no record of the existence of a report that legally and, where appropriate, jurisprudentially supports the administrative procedure followed for the execution of the judgment"; that "a Gender Impact Assessment report was not incorporated, which is required because it is an act of a normative nature"; and that it did not have an "economic sustainability report or memorandum." 

Even, she pointed out that the powers for the formulation and processing of this plan would fall to the Ministry of Sustainability of the Government of the Canary Islands, and not to the General Directorate of Territorial Planning and Vice-Ministry of Territorial Planning, which was the one who processed it.

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