An opinion issued by the Consultative Council of the Canary Islands on May 4 rejects the annulment of the building licenses for 25 homes that the Promotora Puntalarga company, owned by the Plasencia family, built in the Tenerife municipality of Candelaria. The urban promotion invades nearly 2,000 square meters of rustic land and was denounced in October 2019 by the Provincial Prosecutor’s Office of Santa Cruz de Tenerife due to the existence of indications of alleged crimes against the planning of the territory, which in turn prompted the City Council to start the ex officio review file of the permits, as reported by watch me tv.
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The new position of the City Council, whose former Councilor for Urbanism Domingo Ramos (PSOE) and several municipal technicians are being investigated by the Investigating Court Number 2 of Güímar as a result of the complaint by the Prosecutor’s Office, has come up against the criteria of the Consultative Council, which rejects the ex officio review of the permits and certificates of the urbanization despite the breaches of the regulations that both the Public Ministry and the Consistory itself have detected. The decision of the advisory body has led the mayor of Candelaria, Mari Brito, to sign a decree to desist from her intention to cancel the licenses.
Behind the urban development of 25 homes, although only 22 were built, there is an administrative mess that the Santa Cruz de Tenerife Prosecutor’s Office unraveled in its day. The initial reports for the granting of the license omitted the fact that the townhouses invaded rural land. One of the technicians who should have warned of the alleged illegalities worked years later for the developer company. The works began after the permits expired, but the City Council granted them validity based on two certificates from the municipal secretary, with the approval of the former Town Planning councilor. When the Prosecutor’s Office denounced, some of the owners had settled in their residences without having the certificate of occupancy and the first occupation.
21 years have passed since the first file was started on the urbanization that stands next to the Aroba ravine, at the top of the southern highway. According to the complaint of the Prosecutor’s Office and the criteria maintained by the City Council in this last stage, the breaches of the complex of townhouses could be concentrated in three infractions: part of the urbanization occupies rural land, the licenses were granted without the certificate of alignments and gradients, and the works did not have the administrative authorization of the Insular Council of Waters of Tenerife due to their possible affectation to the public hydraulic domain.
In the ex officio review proposal of the City Council of Candelaria, it is stated that these facts concur in the causes of nullity that are included in two sections of article 47.1 of the Law of the Common Administrative Procedure of the Public Administrations, considering that in the decrees that gave the green light to the urbanization, essential steps of the procedure were dispensed with, in addition to being contrary to the legal system.
The four resolutions that the Consistory intended to annul are the initial building license that was granted in August 2002, its extension by means of a decree signed in December 2004, and the certificates of the accidental secretary that in 2006 and 2009 maintained the validity of the permit.
rustic flooring
There is no doubt that the urbanization occupies rustic land, something that even the promoters recognize. The unknown is knowing how much is the affected area and what type of buildings are located on land that is not suitable for residential use. If the Subsidiary Regulations in force at the time of the granting of the first license, in 2002, are taken as a reference, and based on the technical criteria of the City Council at present, it would be 1,910 square meters. With the General Planning Plan that governs today, the figure reaches 2,851 square meters.
The urbanization sits on a total of 5,255 square meters. For the Advisory Council, it is necessary to adhere to the planning in force at the time of the first license, that is, the Subsidiary Norms. The construction company itself admits in its allegations that 1,545 square meters of rustic land is invaded, but defends that the houses are on urban land and what would not comply with the planning would be “accessory elements”, such as the gardens or the car parks of the townhouses These arguments are accepted by the advisory body in its opinion, which considers that there is no violation of the rule that is relevant enough to justify the annulment of the decrees. In the criminal case, the Prosecutor’s Office has requested an expert report to clarify this conflict.
The position of the Advisory Council, contrary to the ex officio review in this case, is summarized in one of the paragraphs of the opinion, where it is insisted that “in order to combat in general the irregularities that may occur, there are the instruments specifically contemplated and adequately regulated for this purpose by the corresponding legislation”, referring to the Land Law of the Canary Islands of 2017.
The Consultative also considers that the City Council of Candelaria “has not presented a sufficiently conclusive technical report” on the surface of the urbanization and the elements that occupy rural land. In fact, this is the second opinion issued by the advisory body on these homes, since in 2021, in the face of a first attempt by the Consistory to review the permits ex officio, the preparation of a new municipal study was required, which, once presented through a second procedure, the legal entity considers that it is not valid either.
Alignments and flushes
Another of the breaches in which the City Council of Candelaria and the Prosecutor’s Office have an impact is related to the absence of a certificate of alignments and levels that the promoter company had to have presented before receiving the building license and that was not requested from the Consistory until 18 years later.
The Consultative concludes that “it can hardly be considered that the delay in the request for such certification implies incurring in the cause of nullity” established by law. The opinion does not analyze whether said non-compliance requires the application of the legislation in force at the time of the initial license, the Subsidiary Regulations, or the existing one when the request was made, the PGO, “and if this has to entail the accommodation physical reality to the applicable urban regulations”.
Island Water Council
The third irregularity on which the City Council bases its request for ex officio review, and which the Consultative Council also rejects, is the lack of administrative authorization by the Insular Water Council, given that the urbanization affects a public domain asset hydraulic, the Aroba ravine.
Here there are two circumstances in which the Consultative supports its position. One is that “the hydraulic public domain has not been determined in the ravine adjacent to the aforementioned homes, as the mandatory demarcation has not been carried out.”
What the advisory body argues is that until there is a demarcation, it is not possible to know what surface of the ravine is really affected by urbanization. The other reason points to a report prepared by the Insular Water Council at the request of the Investigating Court Number 2 of Güímar, which instructs the criminal case for alleged crimes against the planning of the territory.
In the report of the Insular Water Council it is stated that the administrative authorization “was not considered necessary, as long as the facade of the building closest to the ravine was located less than seven meters from the authorized wall”, under the presumption that there was no affectation to the easement area. The Advisory uses this argument to conclude that “it cannot be considered that an essential step of the administrative procedure has been omitted”, therefore, a cause of nullity is not incurred either.
Another infraction detected has to do with the fact that the City Council of Candelaria does not record that the first occupation license or certificate of occupancy of the dwellings has been granted. On this issue, the Consultative insists that these are actions “that occurred many years after” the resolutions that are intended to be annulled through ex officio review were issued, so they are “outside the purpose of this procedure” and are not analyzed in the opinion.
