The second section of the Superior Court of Justice of the Canary Islands (TSJC) has issued a ruling favorable to the theses of the FCM in relation to the lawsuit filed by the institution on the alleged illegality of the license granted by the Yaiza City Council for the construction of a hotel in Playa Blanca on plot 139 of the Montaña Roja Partial Plan.
Following the ruling in the same vein issued by the TSJC last January, referring to the Dream Castillo hotel, the Court once again upholds the arguments of the FCM after the Contentious-Administrative Court No. 3 of Las Palmas upheld the untimeliness of the first appeal filed by the FCM - in May 2004 - against the granting of this license, dismissing it.
The TSJC, therefore, once again corrects the criterion of Court No. 3 and dismisses the thesis defended by the council, which was based on the presumption that the FCM should have had knowledge of the licenses through two of its members, so the appeal filed was out of time. The TSJC rectifies the judgment of Chamber No. 3 and cites that "we cannot take suspicions for granted, but it is necessary to demonstrate that exhaustive knowledge of the specific licenses and their files was transmitted to the FCM, which is the one being denied the exercise of public action - not two of its members - the will and exercise of public action by the FCM is of the same and not of its members".
Therefore, the TSJC once again dismisses for the second time, with unequivocal arguments, the repeated attempt by the legal defense of the City Council to compromise the credibility and professional independence of the technicians of the PIOL Office and, at the same time, to accuse the FCM of obtaining privileged information, on the other hand referring to urban planning licenses and, therefore, information that should be in the public domain.
On the other hand, and as happened with the previous ruling, once the untimeliness of the appeal filed by the FCM has been dismissed, the TSJC ruling goes on to assess in detail the substance of the matter raised in the appeal, that is, the legality or otherwise of a license granted by the Yaiza City Council on May 13, 1999 for the construction of a 434-bed hotel in the Montaña Roja Partial Plan of Playa Blanca (not yet built).
The TSJC once again pronounces, in this case, on two essential, substantive, non-formal elements. Firstly, on the need for the Yaiza City Council, before granting the license, to have a compatibility report with the PIOL issued by the Cabildo. The Chamber determines with forcefulness that the absence of this compatibility report, which the City Council must request on its own initiative, implies, by itself, the nullity of the license. It recognizes, therefore, once again, that above the municipal planning in tourist areas is the PIOL.
The ruling states, on the one hand, that "the precepts of the PIOT of Lanzarote invoked were applicable, consequently the license granted on May 13, 1999, needed the prior report of the Island Council on compatibility with the PIOL necessary as it was a municipal plan not adapted".
But, also, adding to the illegality of the ruling, the Court adds verbatim that "in addition, in the case at hand the illegality is more than evident, attending to the report itself issued by the Secretary of the City Council, Mr. Vicente Bartolomé Fuentes, in which he warned of the need to incorporate a compatibility report with the PIOT and, among others, a favorable report from the municipal technical office; however, the technical reports were totally unfavorable to the granting, warning that the presented project should be approved, the Montaña Roja Partial Plan should be adapted to the PIOT, obtaining a compatibility report, the aforementioned report highlighted the lack of infrastructure, the need to approve a detailed study and a urbanization project of the sector that had not been presented", and - the ruling continues - "the aforementioned report warned regarding the existence of an agreement to suspend tourist licenses in force since January 14, 1999 (report on folio 2 signed by Mr. Pablo Carrasco Cabrera, municipal technician)".
And the TSJC ruling adds: "Exhausting the argument, if there is a technical and legal report that points out the need for a compatibility report with the PIOT to be issued by the Cabildo of Lanzarote, we ask ourselves at what point in the file, with what arguments and who decided that the aforementioned report was not required, because they do not appear in the file, the externalization of that decision if not by the act of granting the license".
Therefore, the Court annuls the license not for formal errors, but because it was granted in contravention of the technical and legal reports prepared by the municipal technicians.
On the other hand, the TSJC pronounces again with equal forcefulness about the impossibility of extending the license, as the City Council of Yaiza did. As the Chamber had appreciated in three previous judgments, the granting of the extension of the license granted in 2003 was illegal because it was not verified, before granting it, if the works had actually started within six months before granting the extension, as is mandatory after the approval of Law 6/2001, of July 23, on Urgent Measures for the Territorial and Tourist Planning of the Canary Islands.
The Court says verbatim that "it cannot be pretended the survival of the license granted to a basic project in 1998, to all the laws that succeeded this Autonomous Community related to tourist moratorium, nor to resurrect previous licenses connecting them to new licenses and extensions eluding the current regulations".
Thus, the FCM understands that this ruling consolidates the criterion dictated by the TSJC regarding the need for the city councils to comply with the stipulations of the PIOT, as well as the impossibility of arbitrarily extending the licenses granted. In addition, this ruling is especially explicit in pointing out that the illegality of the license is not based on secondary or formal aspects, but on a breach of the legislation to try to circumvent the supervision of the Cabildo of Lanzarote in matters of territorial control. A breach that was, in addition, notified by the technical and legal services of the Yaiza City Council itself.
