The Supreme Court establishes the effects of the nullity of the general planning on its development instruments.
In this judgment of April 29, 2021, the High Court resolves an appeal against a judgment of the High Court of Justice of the Valencian Community that rejected the challenge of an agreement of the City Council of Castellón de la Plana regarding the direct occupation of land owned by the appellant, in order to implement a green area of a sector of developable land delimited by the General Management Plan of Castellón de la Plana, which had been annulled by two previous judgments of the Supreme Court for failure to comply with the public information procedure.
The objective interest of the appeal lies, on the one hand, in determining whether the jurisdictional declaration of nullity of a general plan entails the nullity of the derived planning instruments, even if they have not been directly or indirectly challenged, and, on the other hand, in knowing whether the effects of the declaration of nullity are original or supervening, that is, whether the nullity is produced from the moment in which the derived plan was approved, or from the moment in which the General Plan is declared null and void.
To resolve this appeal, the Supreme Court argues, citing two pronouncements that it considers particularly clarifying in relation to this matter (its judgments of October 19, 2005 and March 3, 2015), that the nullity of the covering rule implies the invalidity of the rules derived from it so that its effects are ex tunc, since it was approved. Otherwise, it points out that the principle of hierarchy of norms would be violated, since they lack the necessary coverage provided by the general planning. Furthermore, it also adds that allowing the subsistence of the plans dictated in development of a general plan declared null and void would imply giving effectiveness to a regulation that has been declared null and void.
Finally, the High Court recalls that the concept of finality is exclusive of administrative acts and is completely alien to general provisions, which have indefinite effects as long as they are in force in the legal system. The lack of direct or indirect challenge to the Partial Plan that was argued by the City Council, in this sense, is irrelevant.
Therefore, the so-called waterfall nullity of the jurisdictional declaration of the nullity of a general plan on its development instruments, given the ex tunc effects of such nullity, is also applicable to those who have not challenged directly or indirectly.
