The Cabildo of Lanzarote has once again received a new judicial satisfaction in its defense of territorial and urban legality. The Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands (TSJC), in a ruling issued on June 8, 2007, annuls, -for the first time in the Montaña Roja Plan of Playa Blanca-, a license granted by the mayor of Yaiza, José Francisco Reyes, on May 9, 2000 (twenty days before the island's tourist moratorium came into effect). This is the license to the company Yaiza Beach Club SA. for the construction of a hotel (now Hotel Natura Palace) with a capacity of 466 tourist places. Given that no appeal for cassation is possible against this ruling, it is foreseeable that it will be declared final in the coming days.
The Superior Court of Justice of the Canary Islands states that in the license granting file, the City Council, regardless of whether it must also analyze the adaptation to the Island Planning Plan, must first verify that the projected work complies with its own planning instruments. The Montaña Roja Plan requires the drafting of a Detail Study and the urbanization of the plot prior to the granting of the license to define buildable plots.
But this mandatory Detail Study (legally considered as an urban planning instrument of development) was not published by the City Council and the latter, despite being required by the Court, did not answer that it had complied with the legal requirement of publication, which implies a violation of the principle of full publicity of the ordinances and other norms of urban plans recognized by the legislation of local regime and the jurisprudence of the Constitutional Court and the Supreme Court.
The Canarian Court says that the judicial expert stated that he asked the Yaiza City Council about the existence of an urbanization project and that the Technical Office informed him that such a project existed, dated 2001, but that it should be requested in writing, without finally obtaining a response to that request. The ruling adds that in this case the judicial expert, the appellant (Island Council) or the Chamber itself have not been able to find the publication data of the Detail Study. When analyzing the administrative file, the High Canarian Court observes that "the municipal technical report refers to the fulfillment of the stages plan and not of an urbanization project, that is, 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 Detail study and the urbanization project required by the Montaña Roja plan did not come into force, so a license should never have been granted or extended according to the unpublished and ineffective determinations of the same".
Ruling of special relevance
In the opinion of the Cabildo, the ruling is of special relevance in what refers to formal issues. The judicial pronouncement dismantles each and every one of the legal arguments of a procedural nature used in recent years by the Yaiza City Council to defend that the appeals filed by the Cabildo should not be admitted for processing, because they had been presented outside the legally established term.
The Superior Court of Justice of the Canary Islands does not accept the causes of inadmissibility raised by the Yaiza City Council. It was on July 24, 2003 when the license was reliably notified to the Cabildo, so the term for the latter to challenge it should count from that date. If before that date Cabildo officials may have had notice of the license now declared null, this would not constitute notification in the sense required by law to enable the filing of the appeal, so that sufficient knowledge of the license requires the notification of the same to the Cabildo to be able to appeal it.
The ruling also highlights the lack of adequate technical and/or legal study that certifies the concordance between basic and execution project, the applicable planning and the details of the specific case. It also ratifies what was stated by the defense of the Cabildo: that the file lacks the mandatory legal report, without the one issued by the municipal Secretary being able to have such a character, since it does not meet the minimum content required to acquire such a condition, given that it does not pronounce on whether the project submitted for licensing was compatible with the applicable regulations.
The text of the ruling is clear and resounding when affirming, against what the Yaiza City Council maintains, that the duty to communicate licenses to the Cabildo is not unconstitutional, since the Canarian legislator recognizes important competences in territorial and urban matters to the island entities as the highest representatives of the island interest.
Six appeals and 2,578 beds
The Cabildo of Lanzarote has challenged in the Montaña Roja Plan six licenses that affect 2,578 tourist places, of which 2,096 are hotel places and 482 are apartments. The five lawsuits that remain in Montaña Roja are all seen for sentencing. The lawsuits filed by the Cabildo have made possible the "freezing" of a hotel of 236 rooms corresponding to plot 139 of Montaña Roja, which has avoided the increase of the oversupply that so negatively affects the island's tourism industry. This ruling is the eighth (three in Costa Teguise and five in Playa Blanca) that the courts have issued in relation to the lawsuits filed by the Cabildo to defend territorial and urban legality on the island.