The Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands has dismissed the appeal filed by the company that owns the Papagayo Arena hotel and has ratified the nullity of one of the licenses that allowed the construction of this establishment (the last one pending a final judgment).
The new ruling, dated October 30, ratifies the judgment of the Contentious-Administrative Court No. 5 of Las Palmas, which in 2011 upheld the appeal of the Cabildo and annulled the license that the former mayor of Yaiza, José Francisco Reyes, granted on April 30, 1999, authorizing the grouping of plots 1 and 2 of the Las Coloradas Partial Plan to build the controversial Papagayo Arena hotel on them.
In the judgment that has just been notified to the parties, the High Court points out that it "shares the criteria of the Court", which declared null the license that allowed the grouping of the aforementioned plots, because "both plots are separated by a pedestrian path accessing the sea, 5 meters wide, planned as a public road, and that said road was maintained in the modification carried out for its adaptation to the PIOT. Which means that the license incurs in an evident defect of nullity, as they are not contiguous plots and, furthermore, it implies a flagrant violation of the provisions of the Partial Plan, by invading the road".
An "unquestionable" infraction
The Superior Court of Justice rejects the company's arguments and concludes that the committed infraction is "unquestionable", by authorizing the grouping of the two plots on which the hotel was built, declaring the Chamber that "however much article 67.5 of the Ordinances of the Partial Plan allows the grouping of plots in general, it is unquestionable that two plots separated by a road cannot be grouped".
The Chamber's Judgment also confirms the annulment of two other licenses that the former mayor of Yaiza, José Francisco Reyes, granted to said hotel: one on September 4, 2002, authorizing a modification of the execution project, and another on December 9, 2003, authorizing the so-called "final state of the works". The Court ratifies the nullity of these licenses because "they derive" from licenses that had already been annulled by the Chamber itself in a final Judgment of July 18, 2007, which declared null the licenses of June 1, 1998 (authorizing the basic project of the hotel) and August 11, 2000 (authorizing the execution project).
"These «derivative licenses» cannot subsist once the building license on which they originate has been annulled, for the simple reason that their object disappears, presenting an impossible content (article 62.1 c) of Law 30/1992). Nor does it make sense to modify an annulled license or to verify the adequacy of the work to an unauthorized project", the judgment states.
Doomed to demolition
With the ruling of this last Judgment, all the urban planning permits that were granted at the time by the Yaiza City Council for the construction of this controversial hotel have already been annulled, which could be practically doomed to demolition. On the one hand, because the invasion of the 5-meter-wide public road accessing the sea prevents its legalization. On the other hand, because it would also not fall within the measures provided for in the Yaiza General Plan, which is being processed by the Government of the Canary Islands, to facilitate the legalization of hotels that have had their urban planning licenses annulled by the Courts. Thus, the Fifth Additional Provision of this document, which will allow up to a 50 percent increase in buildability, would not serve to legalize the Papagayo Arena.
The judgment also reflects the situation created by the construction of this hotel, which was denounced by the Cabildo, reflecting that the hotel was "built on the beachfront, completely invading the 5-meter-wide public road that separates plot 1 from plot 2 (which "disappeared" from the face of the earth with the construction of the hotel, which was built on said public land), flagrantly and grotesquely violating the urban planning regulations applicable by having also failed to comply with the setbacks that the buildings to be executed on Plot 1 and Plot 2 should have observed (it is not only that two plots that were separated by a public pedestrian road were grouped together, but also that the setbacks that the building to be carried out on said plots should maintain with respect to the public road with which both adjoin were not respected, generating, in turn, an illicit urban exploitation radically incompatible with the applicable regulations), consummating a result that, in addition to being manifestly illegal, has caused a tremendous impact on the beachfront, generating an enormous architectural screen, both linear and vertical, that has completely disfigured said area, which clashes with the bases of the territorial, urban planning and tourist regulations applicable and repugnant to the model of balanced and sustainable tourist development that is advocated for the Island in its Island Plan".
"Incomprehensible" attitude of the Cabildo
In the last of the grounds of the judgment, regarding the material effects that the annulment of all the licenses that were granted in their day to said hotel will have, the Chamber reproaches the Cabildo of Lanzarote for its passivity when it comes to urging the execution of the judgment that in 2007 had already annulled the licenses of the Papagayo Arena. "Taking into account the time elapsed since that first Judgment and the attitude of the Cabildo, it is incomprehensible", underlines the judgment of the TSJC.
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[See the Urban Planning Legality report on the Papagayo Arena hotel->http://www.legalidadurbanistica.org/files/p1_2_representacion_grafica_infraccion.pdf]