The Urban master plan for the review of unsustainable land on the Girona coastline (“Pla director urbanistic de revisió dels sòls no sostenibles del litoral gironí”) could not declassify sectors of land for development and areas of urban land, nor establish an urban development classification for the declassified land, according to the High Court of Justice of Catalonia in the first rulings handed down in relation to this master plan.
The High Court of Justice of Catalonia (hereafter, TSJC) has handed down the first judgments resolving contentious-administrative appeals lodged against the Urban master plan for the review of unsustainable land on the Girona coastline (from now on, PDURSNS_LG), finally approved by agreement of the Territorial Commission of Catalonia on 28 January 2021 (published in the Official Journal of the Government of Catalonia (DOGC) on the 15th of February 2021).
It should be remembered that the PDURSNS_LG aims to revise 166 sectors of land for development and 35 areas of urban land in 17 municipalities of the Costa Brava that have not adapted their general planning to the partial territorial plan of the regions of Girona (the municipalities of Portbou, Colera, Llançà, el Port de la Selva, Cadaqués, Roses, Sant Pere Pescador, l’Escala, Torroella de Montgrí, Pals, Begur, Mont-ras, Sant Feliu de Guíxols, Santa Cristina d’Aro, Tossa de Mar, Lloret de Mar and Blanes) and introduces landscape integration regulations for the construction of housing in Mont-ras, Sant Feliu de Guíxols, Santa Cristina d’Aro, Tossa de Mar, Lloret de Mar and Blanes) and it also introduces landscape integration regulations for the construction of detached dwellings to all the municipalities along the Girona coastline (all the mentioned municipalities plus the municipalities of Castelló d’Empúries, Palafrugell, Palamós, Calonge i Sant Antoni and Castell – Platja d’Aro) that they must comply.
In the first rulings, handed down since the beginning of February of this year 2024, the
majority of the TSJC has partially upheld the contentious-administrative appeals lodged against the PDURSNS_LG and declared the full nullity of several precepts of its urban planning regulations that aimed to declassify sectors of land for development or areas of urban land in the municipalities of Begur, Pals, Lloret de Mar and El Port de la Selva, on the grounds of infringement of local autonomy.
In all these rulings, the TSJC recalls the jurisprudential doctrine of the Spanish High Court with regard to the principle of local autonomy in urban planning matters and the limits of the supra-municipal planner before the municipal urban planning competence, in the sense that the determinations of a supra-municipal urban master plan cannot produce a “freezing of the rank” of the municipal general planning, preventing it from being subject to subsequent modifications that deviate from that master plan “with which the margin of appreciation and discretion of the City Council is blocked for the future”. And, in accordance with this jurisprudential doctrine, the TSJC’s judgment concludes that the PDURSNS_LG violates the local autonomy of the municipalities because it contains determinations of direct application that declassify sectors of land for development and areas of urban land and proposes for the municipalities the guideline of classifying the land of the declassified sectors and areas with a specific urban classification, which is considered of direct application while the adaptation of the general planning of the municipalities in the master plan does not take place, according to the transitory provisions 1st and 2nd of its regulations.
The TSJC admits that urban master plans can classify land, but concludes that only urban master plans for the delimitation and planning of sectors of supramunicipal interest can do so (art. 56.6.a) TRLU, in relation to section 1.g) of the same precept) and that the PDURSNS_LG does not correspond to this typology of urban master plans. Specifically, in relation to this, the TSJC points out that:
“(…) in the current case , we do not find ourselves before one of the cases envisaged in article 56.6.a) in relation to section 1.g) of the same precept, and therefore, in application of the aforementioned case law, we must conclude by stating that the change of urban development classification from urban land to land not for development operated directly by the PDULG, replacing in this case the Municipal Development Plans, violates the principle of municipal autonomy, and is therefore contrary to law. In the same way, and although it is no longer a determination, but rather a guideline (see article 13 of the NNUU of the PDULG), a consequence of the previous determination, it is contrary to the same principle of local autonomy to dictate to a Town Council the classification that its General Town Planning Plan should give to a sector of its territory (…)”.
So far, only in two judgments has the TSJCat not considered the principle of local autonomy having been violated. In the first judgment, because the contested precept did not contain a determination of direct application (declassification of land and proposal of urban planning classification for the declassified land) but a guideline for general planning consisting of the reduction of a sector of land for development which had its origin in the provisions of the Partial Territorial Plan for the regions of the Girona area (“Pla territorial parcial de les comarques gironines”) (STSJCat of 8 February 2024, ordinary appeal 137/2021). And, in a second s ruling, because the reduction of an area was for reasons of excess descend (greater than 20%) and because it contained flood-prone land in a preferential flow zone and because this reduction was in accordance with the guidelines established in Article 9.4 of the TRLU (STSJCat of 8 February 2024, ordinary appeal 123/2021).
Despite appreciating the nullity of the determinations of the PDURSNS_LG that provide for the direct declassification of sectors of land for development or areas of urban land and the guideline for the urban planning classification of the declassified land
, on the grounds of infringement of local autonomy, of direct application as long as the adaptation of the general plans in the master plan does not take place, the TSJCat has so far refused to declare the full nullity of the entire master plan on other more general grounds of challenge invoked in some of the appeals that have already been resolved.
Specifically, the TSJCat dismissed that the master plan had been approved by a manifestly incompetent body, that it had to undergo a new public information procedure due to the changes introduced after its initial approval, or that it did not have a gender impact analysis. And, likewise, the TSJCat has refused to declare the plan null and void due to deficiencies in the economic and financial study or the lack of an economic sustainability report, pointing out that, according to the jurisprudential doctrine of the SC, it was not necessary to incorporate the economic sustainability report because it is not an urban planning instrument that foresees actions of direct and immediate transformation.
On the other hand, it should be noted that the TSJCat has declared in one ruling the inadmissibility of indirectly challenging the provisions of the Coastal system master plan (“Pla director urbanístic del sistema costaner”) or Partial Territorial Plan for the regions of the Girona area of those plans – on the grounds that there is no hierarchical relationship between these plans (STSJCat of 16 February 2024, ordinary appeal 128/2021).
Finally, in none of the judgments analysed did the TSJCat sentences on the landscape integration regulations for the construction of detached dwellings contained in the PDURSNS_LG, which is applicable in all the municipalities of the Girona coast.
All the rulings handed down by the TSJCat and which can be consulted on the CGPJ website (CENDOJ) are as follows:
STSJCat no. 287, of 1 February 2024 (ordinary appeal 129/2021) – El Port de la Selva
STSJCat no. 372, of 8 February 2024 (ordinary appeal 137/2021) – Cadaqués
STSJCat no. 370, of 8 February 2024 (ordinary appeal 123/2021) – Lloret de Mar
STSJCat no. 386, of 8 February 2024 (ordinary appeal 127/2021) – Begur
STSJCat no. 411, of 13 February 2024 (ordinary appeal 114/2021) – Begur
STSJCat no. 412, of 13 February 2024 (ordinary appeal 149/2021) – Pals
STSJCat no. 414, of 13 February 2024 (ordinary appeal 156/2021) – El Port de la Selva
STSJCat no. 419, of 13 February 2024 (ordinary appeal 150/2021) – Lloret de Mar
STSJCat no. 481, of 16 February 2024 (ordinary appeal 128/2021) – Cadaqués
STSJCat no. 647, of 29 February 2024 (ordinary appeal 158/2021) – Begur
STSJCat no. 660, of 29 February 2024 (ordinary appeal 130/2021) – Begur
