During the first months of this year, the Administrative Litigation Chamber of the High Court of Justice of Catalonia has been issuing judgments resolving the administrative litigation appeals filed against the Agreement of the Territorial Commission of Catalonia, dated January 28, 2021, which definitively approves the Urban Development Master Plan for the Revision of Unsustainable Land on the Girona Coastline.
Some of these appeals have been upheld with similar arguments, declaring the nullity of various articles of the PDLUG for violating the principle of local autonomy. This principle, enshrined in the European Charter of Local Self-Government, consists of the “right and the effective ability of local authorities to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population, within the framework of the law.”
The mentioned judgments find that there has been a violation of the principle of local autonomy in those areas that have been declassified without conducting a prior review or modification of the existing general planning. The Chamber, through these resolutions, also criticizes the Second Transitional Provision of the Director Plan in question, which states that “Until the general urban planning is adapted to the provisions of this PDU, municipalities cannot process planning figures or management instruments, nor grant licenses that contradict this document, and are obliged to expressly warn of the existence, validity, and binding nature of the regulations of this PDU when responding to inquiries and requests for urban information made by individuals.”
In the mentioned resolutions, the Administrative Litigation Chamber of the TSJC expresses itself in the following terms:
“Well, the expressed local autonomy projects itself onto local interests and municipal competencies, with urban planning being indisputably a matter of interest to municipalities over which their competencies extend, as indicated by the aforementioned STC 240/2006, recalling what was declared in the also cited STC 40/1998. However, in this sectoral area, interests of different nature converge and, for our purposes, of different intensity and territorial scope, so that only when these public interests to be safeguarded exceed the purely local scope, is control over the plan in its discretionary aspects legitimized.”
These resolutions delve into the distribution of competencies around urban planning, reminding that the competencies of the Urban Planning Administration of the Generalitat must respect local autonomy. Therefore, the decision of the supra-municipal planner—when agreeing to the declassification of land—must be justified by the impact on supra-local interests. In this sense, the Chamber states that:
“The possibilities of control by the Autonomous Communities when, upon final approval of the Subsidiary Norms, they intend to introduce modifications not originally foreseen in the initial and provisional approval of the plan, must be limited by the fundamental requirements derived from the aforementioned principle of local autonomy, so that the extent of control by the Autonomous Administration at the time of final approval of the planning is imposed by respect for local autonomy.
(…)
“Distinguish whether it concerns the regulated or discretionary aspects of the plan (…) Regarding the discretionary aspects of the plan, we must distinguish between determinations that affect a purely local or municipal interest, or higher than this. Thus, when the public interest involved is municipal and does not reach interests that exceed this scope, the competence is strictly municipal, as the city model outlined by the City Council must prevail, with the exception related to control aimed at avoiding injury to the principle of the prohibition of arbitrariness by public authorities, ex article 9.3 CE.
The discretionary determinations of the plan, on the other hand, when they affect matters that impact supra-local interests, linking with a territorial model superior to the municipal one, do allow the Autonomous Administration to intervene by correcting, modifying, or replacing the discretionary determinations of the plan, established in the municipal phase of the procedure. In other words, the possible control or modification by the Autonomous Community of all those discretionary aspects of planning will depend on the public interests involved, and even in the case of purely local interests, provided that the prohibition of arbitrariness by public authorities is not violated.”
On the other hand, the Administrative Litigation Chamber of the TSJC recalls that the relationship between different types of plans is also governed by the principle of specialty, reserving to each planning instrument its corresponding regulatory scope. In this regard, the TSJC recalls that the Master Plan is not the appropriate instrument to order the determinations of land-use classification, which is reserved for the municipal planner. On this aspect, the Chamber states:
“One thing is that on the occasion of the final approval of municipal urban planning the Autonomous Administration, in addition to legality control, exercises control over the discretionary determinations of the Plan that affect matters impacting supra-local interests—this is what happened in the cases examined in those cited judgments—and quite another is that normatively and bindingly, through a supra-municipal planning instrument, the Autonomous Administration can set in advance the parameters and magnitudes—in this case, for example, the delimitation of public open spaces and the determination of the minimum plot or the suppression of a road—to which the municipal planning necessarily must adhere by virtue of what is established in the First Additional Provision of the Coastal System Director Plan. This second modality goes beyond the oversight of discretion, as the invocation of supra-municipal interests cannot lead to, through preventive control, the exclusion or truncation of local autonomy.”
(…)
“Now, it happens that with the incorporation of such determinations into the Master Plan—no matter how much it has been with the express or tacit consent of the municipal Corporation—a kind of “rank freezing” occurs, so that from then on, the municipal planning could no longer be subject to modifications that deviated from those, thus blocking the City Council’s margin of appreciation and discretion for the future.”
We invite you, if you have any doubts about the interpretation of the mentioned judgments, to contact us: dcn@clavellcanalsconsulting.com and acc@clavellcanalsconsulting.com