The Supreme Court declares that it isn’t in accordance with the law to allow the correction of an essential defect in the procedure for the elaboration of urban planning instruments during the execution of the judgement. STS no. 234/2022, of February 23.
The Supreme Court has pronounced, in judgment 234/2022, of February 23, about the impossibility of correcting, in the execution of the judgment, the omission of the strategic environmental assessment procedure in an urban planning instrument declared null and void for this reason.
In this case, the competent environmental authority issued a report stating that wasn’t necessary to submit the plan to the strategic environmental assessment procedure, because it didn’t present significant negative environmental effects. However, during the processing of the plan, its surface and denomination were modified, causing that the plan finally approved didn’t coincide with the plan that had been the subject of the report.
The High Court of Justice of Galicia considered that this was a simple formal defect and that, consequently, it was appropriate to declare it null and void and subsequently correct the defect detected in the execution of the judgement with the submission of a new report by the environmental authority. Likewise, the Supreme Court reaches a completely different conclusion.
In effect, the Supreme Court considers that in this case the doctrine previously established in judgment number 569/2020, of May 27, is fully applicable, according to which the essential procedural defects in the preparation of urban plans entail the full nullity of the whole instrument without possibility of rectification subsequently in order to maintain its validity, without prejudice to those cases in which it’s possible to individualize it respect to a specific territorial scope or a specific determination. Thus, the Supreme Court understood that the report of the environmental authority pronounced about a plan that didn’t coincide – neither in its nomenclature nor in its territorial scope – with the plan that was the object of definitive approval and that, consequently, we aren’t dealing with a simple formal defect and the environmental authority should have issued a new report before the definitive approval.
