The Superior Court of Justice of the Canary Islands has issued a new Ruling, dated December 13, 2007, which annuls the decree issued by the mayor of Yaiza on August 19, 1998, granting an extension of an old license granted ten years earlier (on December 19, 1988) to Jesús Betancort de León and others for the construction of a tourist complex of 180 bungalows and annexes in sector 56 of the Montaña Roja Partial Plan.
In said resolution, which has an extension of 27 pages and puts an end to a long and complex judicial process that has lasted seven years, and which also concludes the judicial processes followed against licenses granted in Montaña Roja, the High Court has upheld the arguments maintained by the Cabildo on the illegality of the extensions of old licenses that were used between 1998 and 2000 to authorize the execution of urban projects incompatible with the Island Plan of Lanzarote, and also endorses the need for a prior report from the Cabildo in the granting of license extensions.
Thus, the Chamber rejects the actions of the mayor of Yaiza and establishes the important criterion that once the deadlines established in the building permits to start and/or finish the construction works have elapsed, said permits cannot be extended if at the time of the extension request the project no longer conforms to the planning and the legality in force when formulating the extension request. Even if the license in question had not been subject to an express declaration of expiration, the Court warns that in these cases the only thing that legally proceeds when extensions are requested is to deny them and initiate the file to declare them expired instead of granting them citing "the fraudulent and illicit argument" that said expiration had not been declared, which is what the Yaiza City Council did in cases like this.
In this regard, the Chamber points out on page 22 of the ruling that "in summary, the City Council, by declaring the extension without declaring the expiration of the license, violated the legal system, which leads to the declaration of nullity of the municipal extension decree", because "if the license had expired, it was not possible to authorize the extension of any execution project because none was authorized", the Chamber concludes in the fourth legal basis of the resolution.
The highest Canarian court has also rejected the arguments put forward by the defendants on another of the essential issues that were debated in this procedure, such as the alleged effects that the annulment of the PIOT regulations relating to the Montaña Roja Partial Plan could have to try to avoid the application of the Island Plan to the authorization of the works executed in said partial plan.
An argument used by the City Council and the developer to justify the omission of the project's compatibility report with the PIOT and the intervention of the Cabildo in the granting of the extension, to which the Chamber responds in the Fifth Basis of said ruling dismissing the argument. And it is that, on the one hand, "the annulled determinations of the PIOT do not exclude the validity of other binding determinations that had to be respected in the granting of the extension taking into account the nature of the PIOT as an instrument of integral planning", and, on the other hand, "on the date on which the extension was granted, the annulment ruling was not final of the determinations of the PIOT relating to Montaña Roja, and, in addition, there is no record of any process of assessment of the adequacy or not to the new regulations of the extension, despite the profound and transcendental changes produced".
Expanding on its reasoning, the Chamber continues in the sixth basis of the Ruling recalling that article 6.1.2.1, A3 of the Island Plan, which requires the issuance of a prior report from the Cabildo on the compatibility of the project with the PIOT, not only constitutes "a binding determination" but also "of immediate and direct application". It also warns that the report that verifies the compatibility of the project with the PIOT "has the characteristics of enforceability and coercibility typical of legal norms whose compliance is mandatory by the City Councils that are immediate recipients of the norm as holders of the competence for the granting of urban licenses".
The Court flatly rejects that licenses can be granted without the Cabildo having verified beforehand the compatibility of the same with the Island Plan and adds that this prior, mandatory and binding report "is a procedure linked to the need to guarantee the island interests linked to the fulfillment of the PIOT and prevent actions incompatible with the limitations established with the island planning, hierarchically superior to the municipal planning instruments, can be developed".
In short, the High Court concludes the sixth basis of the ruling emphasizing that "the City Council of Yaiza, bound by the binding determination of the planning hierarchically superior to the municipal one, should have requested a report from the Cabildo before the granting of the extension, which makes the extension appealed in the proceedings, dispensing with the necessary prior report, required by the PIOT, null for ignoring the City Council a binding determination of a planning superior to the municipal one that should have been observed in the procedure of the extension of the license".
The Chamber also reasons that "it is difficult to find a clearer case of the need for the prior report of the Cabildo because the annulment of certain determinations of the PIOT relating to Montaña Roja precisely means that we are facing a previous planning and not adapted to the PIOT" so "the report was more necessary, if possible, given the situation of Montaña Roja after the ruling and precisely to know the position of the Cabildo and more when the estimation of the appeal was partial and affected only two articles of the PIOT".
Again there is mention of demolition
Finally, the Court also recognizes the right of the Cabildo to the restoration of the altered and transformed reality, warning that "it will be in execution of judgment where the City Council of Yaiza must adopt all measures to restore the altered and transformed reality and proceed, where appropriate, to the demolition if the building materialized in the plot is protected by the extension of the license annulled here, or if it is a building without coverage in authorized project", because "it is the consequence of any annulment of a license that authorizes a building act".
With this ruling, which is already number 21, conclude the six appeals that in the years 2000 (2) and 2003 (4) were filed by the Cabildo against licenses in the Montaña Roja Partial Plan, having estimated all of them and annulled all of the challenged licenses that had authorized a total of 2,578 tourist places.
