The Consultative Council of the Canary Islands, in an opinion issued on October 27, rejects the ex officio review of the authorizations granted by the Vice-Ministry of Territorial Policy for the expansion of the Monkey Beach Club, a nightclub located on the first line of Troya beach, in the Tenerife municipality of Adeje.
The opinion, which is mandatory as well as binding, concludes that the resolution of the technical general secretary of the Ministry of Ecological Transition of the Canary Islandswhich proposed the annulment of the authorizations in April, “does not argue why these services, in this specific case, are not convenient” for the coast, in relation to the activity carried out by the Monkey Beach Club, which stands on the easement protection of the terrestrial maritime public domain.
The members of the Consultative Council are appointed on the proposal of the parliamentary groups. Although it is a collegiate body, that is, decisions are made by consensus, each opinion appoints a person as speaker. In the case of the Monkey Beach Club authorizations, this responsibility fell on the lawyer Cristina de León Marrero.
Cristina de León Marrero came to the Advisory Council at the proposal of the Canary Islands Coalition. With the nationalist formation in the autonomous government, she held various technical positions of high responsibility. In fact, she was technical general secretary of the Ministry of Territorial Policy, Sustainability and Security from July 2015 until January 23, 2017, when she was dismissed, according to the Official Gazette of the Canary Islands. The first of the questioned authorizations to expand the Monkey Beach Club, dated January 19, 2017, was granted while she was still officially holding the position of Technical General Secretary for Territorial Policy.
The Monkey Beach Club’s main activity is the organization of private parties. It is not the traditional beach bar that any user of the coast can access. It is a place whose main business, in addition to having a restaurant, is the organization of musical events that can only be attended by those people who pay to enter the facility.
The use of the premises is the epicenter of the open legal debate in the administrative channel with a view to its possible adaptation to the Coastal Law. A controversy that is resolved in parallel to the criminal jurisdiction, where there are open proceedings that arose from a complaint from the Provincial Prosecutor’s Office of Santa Cruz de Tenerife for the alleged commission of a crime against land use planning due to the expansion of the facility. The case investigates the former vice-councillor for Territorial Policy of the Canary Islands, technicians from the Demarcation of Coasts and the City Council of Adeje, as well as the mayor and various councilors of the southern municipality of Tenerife.
What is resolved in criminal proceedings is much more complex than the administrative debate, which focuses on clarifying whether the Monkey Beach Club complies with the uses permitted by article 25.2 of the Coastal Law, which establishes that in the easement of protection, “ordinarily, only works, facilities and activities that, by their nature, cannot have another location, such as marine farming establishments or maritime salt flats, or those that provide necessary services or services, will be allowed in this area. suitable for the use of the maritime-terrestrial public domain, as well as outdoor sports facilities”.
There is no controversy when it comes to recognizing that the activity of the Monkey Beach Club may have a location other than the first line of the coastline or ruling out that it is necessary for the terrestrial maritime public domain. The problem arises in knowing if it provides a “convenient” use, since it is an indeterminate legal concept, which has led jurisprudence to conclude that it is necessary to analyze it on a case-by-case basis.
a convenient use
During the processing of the file that gave rise to the two authorizations granted by the Vice Ministry of Territorial Policy to give the green light to the expansion works, one in 2017 for the first project and another in 2019 for a modification of the original, the technicians of the department The regional authorities concluded that the use of the Monkey Beach Club was convenient for the maritime-terrestrial public domain. It was not until a petition from the Galaxy Neighborhood Community was filed, requesting the ex officio review of the permits, that this decision began to be questioned.
The ex officio review file concluded with a resolution from the current technical general secretary of the Ecological Transition Council, where the Territorial Policy area is integrated, in which the annulment of the authorizations was proposed, considering that the uses of Monkey Beach Club are not suitable for the coastline. A position that the official maintained despite the fact that the services that in their day reported in favor of the expansion of the facility were ratified in her initial position.
For the technical general secretary, Marta Bonnet, the different reports on which the then Deputy Minister for Territorial Policy, Jesús Romero, relied to grant the authorizations did not sufficiently motivate the use of the nightclub to be suitable for the public domain. . A position that, conversely, is now supported by the Advisory Council in its opinion on the resolution of the main jurist of Ecological Transition.
The opinion of the Advisory Council concludes that the technical general secretary “does not provide any convincing reason that leads us to consider that, indeed, in this specific case, these services are not appropriate”, which it considers a “lack of motivation ” sufficient to not accept the ex officio review of the authorizations.
The historical criterion maintained by the Advisory Council on ex officio reviews is restrictive, to the point that it obliges administrations to justify their proposals in such a way that they are capable of overthrowing basic principles such as good faith or the binding consequences that arise from the acts themselves.
The resolution of the technical general secretary that proposed to annul the permits was based on several arguments that the Advisory Committee considers insufficient. The official reasoned her proposal that the expansion of the Monkey Beach Club could produce a negative impact on the public domain because there are already many similar activities in the area, which caused the load of uses of the area to increase with its start-up. . Her reasoning was based on the fact that the presence of a multitude of bars, restaurants or nightclubs in the area does not imply that any activity of this nature should be considered convenient.
In the previous reports that were issued and that endorsed the authorizations now discussed, the convenience of the use was justified because it is covered by the Plan for Modernization, Improvement and Increase of Competitiveness (PMM) of Costa Adeje, annulled by the courts after the concession of the permits, arguing that the Monkey Beach Club “makes the urban and building renewal of the tourist area viable.”
The Advisory position is decisive in administrative proceedings, given the binding nature of the opinion, and means that the Department of Ecological Transition will no longer be able to annul the authorizations of the Monkey Beach Club. An aspect that can also be key to how the role of the Adeje City Council is interpreted, which supported the granting of its licenses in the permits granted by the Government of the Canary Islands. Another thing is criminal proceedings, where the instruction addresses a broader spectrum, also investigating the height and surface increases granted by the PMM to the premises of leisure.
The controversy with the PMM
Regarding the validity of municipal licenses, there is an open judicial dispute, which will have to be resolved by the Superior Court of Justice of the Canary Islands (TSJC) in the appeal phase, following an appeal filed by the Galaxy Neighborhood Community, after the City Council dismissed due to administrative silence the request for ex officio review of the permits. In this case, the conflict revolves around the interpretation of the sole additional provision of the PMM of Costa Adeje.
The sole additional provision of the PMM established that in the constructions that occupy the easement of protection of the public domain it would be mandatory to apply the parameters set by the fourth transitory provision of the Law of Coasts. For the residents of the Galaxy Community, in a position that shares the opinion of the judicial expert prepared in the criminal casethis regulation should have been interpreted as a prohibition on the possibility of granting licenses for the extension of constructions that imply an increase in surface area or height, as occurred with the Monkey Beach Club.
The single additional provision was added at the last minute in response to the unfavorable report issued on May 20, 2015, two days before the approval of the PMM, by the General Subdirectorate of Maritime-Terrestrial Public Domain, where it was warned that the buildings located in the protection easement “will be subject to the regime established in the fourth transitory provision of the Law of Coasts, being able to only carry out repair, improvement, consolidation and modernization works provided that they do not imply an increase in volume, height or surface of existing constructions” .
The Costa Adeje PMM was annulled by the courts for a formal matter, so the substance of a document that granted significant increases in urban use to various businesses located on the coast of the municipality in the south of Tenerife was never analyzed. The promoters that were faster, and expanded their facilities before the Justice overturned the new regulation, such as the Monkey Beach Club, were able to apply parameters that do not fit with the General Development Plan (PGO) in hand.
As the annulment of the PMM does not obligate the annulment of the licenses granted under its validity, these promoters have taken advantage of the benefits of an urban bubble created by the Government of the Canary Islands with the illegal approval of modernization plans, many of which They have fallen in the courts, such as the one in Costa Adeje.
The question that arises now is how the opinion of the Advisory Council will affect the criminal case that is being investigated in the Arona Investigating Court Number 4, which is currently facing its final phase. Until now, the position of the Prosecutor’s Office and the judicial expert puts the accused in the procedure against the ropes. In the preliminary proceedings, in addition to the granting of authorizations and licenses for the expansion, the urban classification and the significant increase in buildable area that was granted in the PMM to the Monkey Beach Club plot are also investigated.
