Consequences of the annulment of the Real Decreto 668/2022, for the modification of the General Coastal Regulation.
The judgment of the Supreme Court number 484/2024, of January 31st, has declared the nullity of the Real Decreto 668/2022, of August 1st, for the modification of the General Coastal Regulation approved by the Real Decreto 876/2014, of October 10th, considering the concurrence of a procedural flaw consisting of the omission of the public consultation process.
The Contentious Chamber of the Supreme Court has concluded that during the procedure followed for the approval of the rule, Article 26.2 of the Ley 50/1997, de 27 de noviembre, de Gobierno, was violated. This article regulates the cases in which public consultation may be dispensed with in the case of regulatory rules of the General State Administration.
In accordance with the interpretation of the aforementioned provision made by the Court, the following circumstances must concur cumulatively in order to omit this procedure: on the one hand, that it is a rule of a budgetary or organizational nature, and, on the other hand, that there are serious reasons of public interest that justify it, that no relevant obligations are imposed on the addressees of the rule or that it does not regulate essential aspects of a matter. Therefore, the condition of being budgetary or organizational rules will always be a necessary requirement to dispense with the public consultation procedure for the approval of regulations.
It should be noted that the judgment has the dissenting vote of two of the five judges of the Court who have highlighted the existence of precedents of the Contentious Chamber in which, through a joint interpretation of Article 26.2 of the Ley de Gobierno and Article 133.4 of Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas, it was determined that compliance with the conditions that allow dispensing with the prior public consultation procedure in the drafting of government regulations is of an alternative nature, and not cumulative.
In this sense, the authors of the dissenting vote consider that the regulatory impact analysis report contained on the modification of the coastal regulation duly justified the concurrence of some of the circumstances that would allow dispensing with the public consultation, such as the fact that it only regulates partial aspects of the matter. The dissenting opinion also points out that the declaration of the nullity of the Real Decreto for having omitted the prior consultation constitutes a disproportionate consequence, since during the procedure for the approval of this rule there was broad public participation, despite the fact that it took place after the drafting of the project.
The modification of the General Regulation of the Coastal Law that has been declared null and void was aimed at the incorporation of the regulations on climate change in the regulation of Coasts, taking into account the sensitivity of the maritime-terrestrial public domain and the seashore to the rise of the average sea level due to climate change. Because of the annulment of said modification, it has taken place the revival of the determinations provided for the Real Decreto 876/2014, of October 10th.
Among the most relevant modifications that had been introduced by the Real Decreto 668/2022, and which have been declared null, the following can be highlighted:
- Modification of the technical criteria for the determination of the maritime-terrestrial public domain by suppressing the definition of the different types of dunes so that all of them are included within the delimitation of the beach, with the goal of guaranteeing the stability of the beach and the defence of the coast, and with an impact on the delimitation of the public domain.
- Restriction of the occupancy of beach bars to single-storey buildings without basement and elimination of the possibility of this type of establishment being located in fixed installations on urban stretches, in order to minimize the impact of the occupation of the beach.
- Elimination of the possibility that urban planning may affect the regulation applicable to beach bar facilities.
- Establishment of the criteria to be observed for the granting of concessions in the public domain and their possible extensions, relating to the suitability of the activity or facility, the degree of interest for the public domain, the state and evolution of the ecosystems and degree of impact on biodiversity, among others (in contrast to the Real Decreto 876/2014, which provides for their granting if no causes for expiration of the current title are appreciated)
- Limitation of the maximum concession term to 75 years, expressly including in this period the initial term and possible extensions from the granting of the title, in accordance with the provisions of the Law on Climate Change and the jurisprudence of the Constitutional Court.
The revival of the Real Decreto 876/2014 supposes, therefore, a significant change in the Spanish regulation of the Coast, by forcing the revision or rethinking of the delimitations of the maritime-terrestrial public domain that were being processed by the Ministry for Ecological Transition and Demographic Challenge (MITECO) in accordance with the provisions of the amendment that has now been declared null and void. For this reason, and complying with the Supreme Court ruling, the MITECO has already carried out a prior public consultation on the draft of the new Real Decreto for the amending of the General Coastal Regulation, which aims to be processed in replacement of the one declared null and void.
According to the MITECO document that has been published for public consultation, the objectives of the new Real Decreto to be approved would consist (in line with the provisions of the Real Decreto 668/2022 that has been annulled) in guaranteeing that the maritime-terrestrial public domain is duly protected for public use and enjoyment, by ensuring the conservation and protection of natural features, and in adapting the General Coastal Regulation to the provisions of Article 20 of the Ley 7/2021, de 20 de mayo, de cambio climático y transición energética, among others.
Some administrations, such as the Xunta de Galicia, the Generalitat de Valencia or the Government of the Balearic Islands, have already made allegations in the period of public information period of the public consultation prior to the beginning of the procedures for the approval of the new Real Decreto for the modification of the General Coastal Regulation. In the document submitted by the Balearic Government, it has been highlighted that the public consultation “would have been carried out without providing citizens with access to clear and concise documents and without the necessary information for an informed participation”, and that this fact “could amount to a lack of consultation”, a circumstance that already points to a new legal battle on the issue.
