In a ruling issued on June 15, the Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands has annulled the construction license granted by the Mayor of Yaiza, on February 19, 1999, to the company Teide 10 SL. for the construction of the Rubicón Palace Hotel, in Playa Blanca, whose capacity is estimated at 866 places. It is foreseeable that in the coming days this ruling will be declared final, since no appeal can be lodged against it. This is the tenth tourist establishment on the Island and the third in the Montaña Roja Plan whose license is annulled by the courts of administrative litigation. The number of tourist beds affected in the Montaña Roja Plan by rulings issued at the request of the Cabildo of Lanzarote amounts to 1,814.
For the Canarian High Court, the lack of publication of the applicable planning is sufficient to annul the license, making it unnecessary and inappropriate, in its opinion, to examine the other grounds for challenge indicated by the Cabildo, which, among others, are the absence of a legal report, the non-compliance with the license suspension measures during the processing of the island moratorium, the discrepancies between the basic project and the one finally executed, and the lack of the condition of building plot and urban land of the plot on which the annulled license is located.
The Superior Court of Justice of the Canary Islands maintains that the first obligation for the City Council is to compare the project submitted for licensing with its own planning instruments and collaterally with other instruments such as the Island Plan. The Montaña Roja Plan requires the drafting of a Detail Study (legally conceived as an urban planning instrument for development) and the urbanization of the plot to define building plots, all prior to the granting of the license. But this mandatory Detail Study was not published by the City Council. The latter, despite being required by the Court, did not respond regarding compliance with the legal requirement of publication, which implies a violation of the principle of full publicity of the ordinances and other rules of urban plans recognized by the legislation of local regime and the jurisprudence of the Constitutional Court and the Supreme Court. Whoever maintains the publication must prove it, but in this case neither the appellant Cabildo nor the judging Chamber have been able to find the publication data of the Detail Study.
The Superior Court points out that if the administrative file is reviewed again, it can be observed that the municipal technical report refers to compliance with the stages plan and not with an urbanization project, that is, the execution project presented is not compared with the regulations of hypothetical application, which is of particular importance in this case, in which it is stated that the plot does not have the condition of a building plot. Consequently, 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 in accordance with the unpublished and ineffective determinations thereof.
On the other hand, the Court rejects the inadmissibility of the appeal filed by the Yaiza City Council and the company Teide 10 SL. because it understands that the decisive factor is that the notification of the license to the Island Council by the City Council never took place reliably, so it does not accept the thesis of the southern consistory regarding the fact that the Cabildo had knowledge of the hotel's building license long before what it stated and that when it filed the appeal the stipulated period for it had elapsed.
Another argument that the Chamber uses to dismiss the inadmissibility is linked to the ruling issued by itself in appeal 249/2001, in which it insisted on the lack of communication of licenses, including those of Montaña Roja, by the City Council to the Cabildo. The Superior Court does not question the constitutionality of the legal duty to communicate licenses because it does not imply an impediment to local autonomy but allows the exercise of the powers of the Island Administration as representative of an island territorial interest that exceeds the municipal interest. The Court maintains that the Cabildo's action to challenge the license has not expired either since the appeal was filed before the four-year period counted from the date of reliable notification of the license had elapsed.