The Supreme Court confirms its jurisprudence on the possibility of indirectly contest a general rule through a direct the direct contestation of another general rule, but only if there is a hierarchical connection between both. SCS num. 1109/2022, July 28th.
On July 28th, the Supreme Court pronounced about the cassation appeal filed against the Sentence of the Superior Court of Justice of Canary Islands num. 70/2021, February 26th, which rejected the administrative appeal that was filed against the Agreement of the Plenary of Garafía Town Hall reached on April 29th, 2019, which approved the General Urban Development Plan of Garafía (PGO).
The appellant in cassation intended the declaration of nullity of the touristic ordination contained in the Garafía’s PGO, and also the one included in the Territorial Ordination Plan of the Touristic Activity of la Palma (PTETLP), approved by the Decree 95/2007, of May 8th; as well as the declaration of nullity of the precepts of the Insular Ordination Plan of la Palma (PIOLP), approved by the Decree 71/2011, of March 11th, regarding the Specialized Area of Infrastructures and Equipment 8 (Parque Cultural Roque de Los Muchachos), and the PORN classification of the land affected as D3.1 Specialized area of infrastructures and equipment.
The debate is focused, essentially, in the indirect contestation of both the PTETLP and the PIOLP, intended through the contestation of the Garafía’s PGO. The indirect contestation is a circumstance contemplated in article 26.2 of the Law 29/1998, of July 13th, regulatory of the Administrative Justice (LJCA), although this mechanism is forecasted, specifically, in relation with application acts of general rules (which means, that the acts are directly contested, indirectly contesting the general rules). This case is controversial because the appellant intends, with a direct contestation of a general rule, to indirectly contest other general rules.
The Supreme Court analyses the case and, in application of its jurisprudence, establishes that only when there’s a hierarchical nexus between the contested general rules, the indirect contestation will be possible (according to the SSTS of February 9th and September 25th 2009). Regarding this doctrine, and by examining the Canary Islands’ rules, the Court concludes that there is no such link between them, because the Garafía’s PGO has an urbanistic and general character, while the PTETLP has a territorial and special character.
The Court continues applying its jurisprudence, and saying that what cannot be intended is to articular an indirect contestation of a rule which is not hierarchically subordinated to the one that is being appealed (STS of December 16th 2015) and, moreover, in the case at hand, the intended contestation of the PTETLP is based in the omission of the environmental evaluation, which is considered to be a procedural or formalist question, that is, something that cannot be revised through an indirect contestation.
Finally, the Court quotes the STS of November 6th 2009 which says that the defect that is attributed to the rule directly contested has to come from, or have its origin, in the hedging rule that is indirectly contested and, on this matter, the indirect contestation does not allow to appeal any infraction which is not connected or linked to the infraction denounced as a nullity motive of the contested act.
In the case at hand, the denounced defect of the PTETLP does not have any direct connection to the Garafía’s PGO, because this one was entirely subjected to the correspondent environmental evaluation; and, moreover, if there really was a connection, what could not be pretended is to declare the nullity of all the Garafía’s PGO: the effects would only reach to the specific precepts related to the imputed defect.
In conclusion, the current doctrine of the Supreme Court establishes that it is possible to indirectly contest a general rule through the direct contestation of another general rule, but only if there is a hierarchical connection between both. On the other hand, the nullity does not have to affect the entirety of the indirectly contested rule, but only to those specific precepts of the planning which are affected by the defect of nullity invoked.
