I agree that the Canary Islands needs a new Territory Law that corrects the current regulatory tangle, a consequence of successive laws and modifications approved in recent years. To this end, a draft land law has been put on the table that has generated many doubts, partly due to the haste, partly due to the proposed changes.
A subject always prone to conflicting positions and exaggerations, where it is not surprising to hear qualifiers such as speculators or those who say no, depending on the opinion being defended, in a re-edition of the usual good and bad that makes debate difficult. Neither good politics nor the territory can afford this division, because "most people are in a more temperate position and eager for consensus", as President Susana Díaz recently pointed out and as we need in this and other matters.
From this vision of politics, the two points that arouse the most controversy in the project are: the Canary Islands Territorial and Environmental Planning Commission (COTMAC) and the full assumption by the Local Entities of the approval of their plans. On this, I would like to share a series of reflections.
A strengthened COTMAC to improve control over the plans. The draft Law opts for Local Entities, City Councils and Island Councils, to directly control and evaluate the legality and sustainability of the plans they draw up, renouncing that a third party develops the function that COTMAC has traditionally performed.
In this way, the Administration promoting the plan is in charge of verifying its fit in the legal and environmental system, as if whoever takes an exam proceeds to correct it, something I do not share. It can be argued that COTMAC should improve its operation, but it is different from renouncing that it exercises a priori control over planning instruments. Reality tells us that precisely the prior controls are one of the issues to be strengthened, to avoid approving plans that are later annulled by the Courts. This risk does generate legal uncertainty and, consequently, compromises investments, however much it may slow down the processing processes.
This has been happening in our country where in 2014 a total of 135 appeals were filed with the administrative litigation chamber of the Supreme Court aimed at annulling planning instruments, with a total of 108[1] being invalidated. And in case there are any doubts, another fact: 7 of the 26 general plans approved in the Canary Islands since 1999 have followed the same fate, so these prior controls are not exactly superfluous. However, it is obvious that COTMAC must be improved: provide it with more resources and agility to better supervise, but also to provide some homogeneity to the planning, balancing the more local vision with the contribution of a regional body that overcomes the risk of the kingdoms of taifas or the municipal and island milestones of yesteryear.
Co-responsibility in the approval of planning, the preference for a shared view of the territory. The project bets on assigning to the Municipalities or Island Councils the full competence to approve their plans, where before the Autonomous Community also decided, through the traditional two-phase procedure.
Now they say that City Councils and Island Councils are of age and they are enough on their own. Obviously, they are grown-ups; but in certain decisions, co-responsibility is better, the balances that shared decisions allow, rather than the sole decision of a certain Administration.
The approval of a planning is the most important and far-reaching decision of a local entity, not comparable to the approval of an annual budget or an ordinance, please. Its urban, economic, environmental or mobility repercussions far exceed any other decision and will extend over a long period of time.
Given its importance, the participation of an Administration further removed from the interests at stake seems appropriate. Does this mean distrusting the Local Entities and their technicians? Not at all, it is the simple observation of a reality. Proximity, the so-called principle of subsidiarity, in certain matters harbors a series of risks that recommend the intervention of other Administrations to correct them, in an extension of the Anglo-Saxon thesis known as "checks and balances" or the game of balances and controls that some powers exert over others.
It could be thought, for example, that in a matter such as urban planning discipline, the Administration closest to the citizens is the most effective. Who better than the city council to report urban infractions? Well, the 2013 report of the prosecutor's office of the Superior Court of Justice of the Canary Islands with respect to the province of Las Palmas states the opposite, "not a single municipality brought a case of urban planning to the prosecutor's office", highlighting the "difficulties" for the closest administration to act in these cases.
Moreover, this seems to be the understanding of the majority of Autonomous Communities in our country, which opt for co-responsibility, with only four out of seventeen, specifically La Rioja, the Basque Country, Galicia and the Balearic Islands, leaving the approval of planning exclusively in the hands of the City Councils, excluding those of smaller size.
But also, in recent years, many of the Canary Island City Councils have renounced leading the approval of their plans, requesting the regional Government to do so through the figure of supplementary plans. Municipalities such as Arrecife, San Bartolomé, Tinajo or Yaiza know this well. What has changed so that now the Local Entities face the approval of their plans alone? At least a convincing explanation is appropriate.
On these issues, those of prior control, co-responsibility or the role of COTMAC, the PSOE has always been clear about its position, as demonstrated by its support for the 1999 Territorial Planning Law, the 2003 Guidelines or the rejection of the recurring idea of other political forces to abolish COTMAC. A position that, for sure, will continue to be present in the parliamentary debate on the controversial draft land law.
By Marcos Bergaz, Minister of Territorial Policy of the Cabildo of Lanzarote
[1] Urban practical magazine exemplary number 141, July 2016. Article "An unforeseen dysfunction of the urban system: the judicial mortality of the plans". Juan Alfonso Santamaría Pastor.