The Supreme Court (TS), will make jurisprudence in the Azata Del Sol hotel case in El Algarrobico. It will also decide, after Greenpeace’s appeal, whether it can “Jurisdictionally” declare the nullity or inability to grant a license for the “inherent demolition” of the building.

In its July 2021 judgment, the Superior Court of Justice of Andalusia considered that it was appropriate for the City Council of Carboneras, to initiate a review of the 2003 municipal license. It refused to cancel it and ordered the demolition. “Until the contrary was established,” the Superior Court of Justice of Andalusia stated that the hotel “continued” to hold a valid legal title.

Europa Press consulted the Supreme Court, which upholds Greenpeace’s appeal. It also endorses the approach of whether the city council should initiate an ex-officio review procedure it has rejected previously, or if the court must declare the annulment.

It states that the decision will “take into account” the fact that the construction of this hotel took place on undeveloped, protected land in Cabo de Gata­Nijar natural reserve. This was invading easement zone maritime-terrestrial public realm and was based on planning that has been deemed invalid.

The resolution states that Greenpeace has appealed to the formation of jurisprudence. It also agrees to determine if there are any cases like that of Algarrobico, where the municipality entity dismissed the request for ex-officio review. After annulment of normative instruments upon which it was granted, the nullity can be declared jurisdictionally.

If this nullity is declared, it will set all “inherent consequences”, including demolition of the building.

The order specifically states that the Fifth Section will interpret the legal regulations of article 24, CE, article 71 and Article 73 LJCA, and articles 47.1.f), and 106 of Law 39/2015 of October 1 of the Common Administrative Procedure of Public Administrations.

The Supreme Court, however, has ruled that the appeal by Carboneras City Council to the July 2021 decision of the TSJA which forced it to start the ex officio licensing review process was inadmissible.

Local entities argued that the ruling was “frontally opposed” to the 2014 sentences issued by the same Andalusian courtroom. They also argued that ex officio review of the municipal works permit for “illegality” of urban regulations that support it was not possible “because it is against law.”

The TS criticizes the absence of “sufficient grounds” to appeal and denies that the TSJA’s ruling could affect “many other cases” that “by definition will present their unique and distinct profiles.”

“CASCADING NULLITY EFFECT”

Greenpeace claims that in issuing its resolution, Andalusian High Court “didn’t take into account” “cascading Nullity Effect” which, according to it, means that the municipal construction license “no longer carries legal value” since the municipal urban planning which made its concession possible was canceled in a final judgement.

It refers to the court ruling declaring the ST-1 and adjacent ST-2 sectors urbanizable because they are both located in special protected areas of Cabo de Gata–Nijar’s natural park.

It criticizes the TSJA for not applying the principle of “procedural economic” and argues the ex officio reviewing of the building permit it ordered as a step before the demolition is a “mere form requirement” because it describes as “materially impracticable” that the aforementioned ex-officio review by city council ends with the “declaration of its legality”.

Greenpeace criticizes the building license as “radically illegal” and if the hotel is demolished, it will be subject to an ex officio review file, whose end logically must be the cancellation of the license.

Apart from the principle procedural economy, the notice of appeal focuses on the cascading effect and highlights the fact that the Algarrobico Partial Plan was “annulled” by 2016’s final judgment of The Andalusian high Court.

“The declarative sentences of nullity planning instruments, such as the one above, have the effect of cascading nility that reaches licenses,” the letter states.