The factual situation of the land may condition the choice of the type of strategic environmental assessment to be followed during the processing of urban planning instruments.

The environmental assessment is a procedure for incorporating the environmental dimension into strategic decision-making from the drafting stage of plans and programmes to foresee the effects that the projects and activities authorised under them may have. The environmental assessment is so important that its absence or deficiency leads to the nullity of the plan or programme affected and, consequently, its invalidity.

Recently, the Supreme Court – in its ruling of 12th March 2024 – has ruled about this procedure and, specifically, on whether the pre-existence of works that were carried out under the protection of a plan declared null can condition the choice of the type of environmental assessment procedure to be followed by the instrument that replaces it.

In the specific case, the substitute plan foresaw – as did the plan declared null – a change in the classification of the land affected, which went from non-developed land with agricultural protection to urban land allowing the creation of a logistics activities area in the port of Valencia, but despite that, the competent administration considered appropriate to process the strategic environmental assessment through the simplified procedure rather than the ordinary procedure. At first instance, the High Court of Justice concluded that the choice of the simplified environmental assessment procedure was not correct, because, among other things, the land could not be considered urban land simply because it had been previously transformed, and consequently, the ordinary environmental assessment procedure should have been chosen.

On the contrary, the Supreme Court understands that, even though we are dealing with a case envisaged for the ordinary processing of the strategic environmental assessment, the specific circumstances of the case can’t be ignored and that, although in a situation such as the one analysed, the coherent thing to do would have been to restore the urban planning order, the statute of limitations of the administration’s restoration action can’t be ignored, nor the fact that it’s neither socially nor economically acceptable to carry out land restoration works and then immediately afterwards approve new planning and urbanise the land in the public interest in the creation of a logistics activities zone. The Supreme Court concludes that these circumstances do condition and influence as determining facts the processing and approval of the substitute planning instrument.

In this sense, the Supreme Court concludes that the fact that the land affected by a planning instrument is developed – even under a planning instrument that has been declared null – may have an impact on the choice of the type of strategic environmental assessment to be followed by the substitute planning, provided that three requirements are met: (1) the administration can’t impose restoration measures or these are exceptionally costly socially and economically, (2) there is no material or legal possibility of choosing another alternative from an environmental perspective, and (3) there are special reasons of public interest that justify the planning activity.