The Carob. The never-ending (legal) story

Next February it will be 17 years since the stoppage of the hotel located on the Algarrobico beach, in the province of Almería.

Why do environmental disorders take so long to resolve? I remember a coal power plant, whose legal proceedings began in the 90s and were later archived, and 30 years have passed until the power plant has ceased to exist. As the Environment and Urbanism Coordinator prosecutor pointed out a few days ago in the newspaper “El País” (24-12-22): "We are all perfectly clear that El Algarrobico is going to be demolished." Let's hope that we can all contemplate it in a reasonable period.

Today, in this blog, the lawyer who has been litigating since 2006 to restore the urban order derived from the famous hotel, explains the extensive judicial course of said procedure, which undoubtedly with such a long procedural history leads us to remember what article 24.1 indicates. of the Spanish Constitution: "Everyone has the right to obtain the effective protection of the judges and courts in the exercise of their rights and legitimate interests, without, in any case, being defenseless".

As we have said other times, remembering Bob Dylan: “The answer my friend is blowing in the wind” (the answer, my friend, is blowing in the wind…).

Jose Manuel Marraco Espinós

Lawyer

The Carob. The never-ending (legal) story

Jose Ignacio Dominguez. Lawyer

According to thirteen sentences of the Tribunal Supremo and fifty other courts and tribunals, the Algarrobico hotel is illegal because it invades the protection easement established in the Coastal Law and is also built within the Cabo de Gata-Níjar Natural Park on land protected at the regional, state and European level .

Such an unusual legal activity has not had any practical effect due to the refusal of the Carboneras City Council to comply with the judicial decisions and the apathy and negligence of the autonomous entity, the Junta de Andalucía. Of all the judicial resolutions, the only one that has had practical effects has been the Order of the Contentious Administrative Court number 2 of Almería dated February 21, 2006, provisionally suspending the works of the hotel.

Among the most important judgments of the Tribunal Supremo that have not had any effect are the following:

1.- STS of March 21, 2012 corresponding to Appeal 2200/2008 confirming the judgment of the Audiencia Nacional dated January 23, 2008, Appeal 50/06, agreeing that the protection easement in El Algarrobico is 100 meters. The Carboneras City Council defended that the protection easement was 20 meters, the width with which it granted the building permit to build the Hotel.

In this same sense, the STS dated July 18, 2012 corresponding to Appeal number 985/2009 confirms the judgment of the Audiencia Nacional dated December 5, 2008 corresponding to Appeal 21/06 that agrees on a width of 100 meters in the protection easement of El Algarrobico

The STS dated July 18, 2012, Appeal 1106/09, confirmed the judgment of the Audiencia Nacional dated November 19, 2.008 corresponding to resource 53/06 on demarcation of coasts. The company Azata SA defended that the protection easement in El Algarrobico was 20 meters and the Chamber agreed that it is 100 meters. As of today, eleven years after the three sentences were published, the Carboneras City Council continues without modifying the width of the protection easement.

2.- STS of February 10, 2016, Appeal of Cassation 1947/2014, annulling that of the TSJA, based in Granada, number 803/2014 of March 21, confirming that the Algarrobico is a protected space. Azata Patrimonio SL intended to classify El Algarrobico as developable in the 2008 PORN. Eight years after the ruling was published, the Carboneras City Council continues to consider Algarrobico as developable.

3.- STS dated February 10, 2016 confirming that of the TSJA dated December 10, 2013, Appeal 2016/2006, validating the resolution of the Ministry of the Environment of the Junta de Andalucía of September 26, 2006 by the who agrees to exercise the right of withdrawal on the land of El Algarrobico. The appellant was Azata Patrimonio SL

The STS dated February 10, 2016 confirming that of the TSJA, with headquarters in Granada, dated December 10, 2013 corresponding to Appeal 2017/2006, confirming the resolution of the Ministry of the Environment of the Junta de Andalucía dated 26 September 2006 by which he agrees to exercise the right of withdrawal on the land of El Algarrobico. The appellant was Azata del Sol SL Eight years after both sentences were published, the Junta de Andalucía has no intention of executing the retraction, which would allow the Junta de Andalucía to take possession of the Hotel and tear it down.

4.- STS dated November 20, 2017 corresponding to Appeal 2984/16 confirming the judgment of the TSJA, based in Granada, dated May 23, 2016 in Appeal 532/09 agreeing that El Algarrobico is a protected area , not developable in the PORN of 2008, against the claims of the City Council of Carboneras. Five years after the ruling was published, the Carboneras City Council continues to classify Algarrobico as developable.

5.- STS dated 634/2018 of April 19, corresponding to Appeal 124/17, confirming the judgment of the TSJA, based in Granada, dated July 18, 2016, corresponding to Appeal 1870 /09, forcing the City Council of Carboneras to classify El Algarrobico as Undevelopable Land in the PGOU. Five years after the ruling was published, the Carboneras City Council continues without modifying the PGOU where El Algarrobico continues to appear as developable land.

Despite the refusal of the Carboneras City Council to comply with the sentences, the only obstacle to tearing down the hotel and thus reestablishing the urban legality that was blatantly violated by the building is that the tome still has the building permit granted by the Carboneras City Council. in the year 2003.

To circumvent this inconvenience, Greenpeace asked the Administrative Litigation Chamber of the TSJA based in Granada to force the Carboneras City Council to review the building permit ex officio and proceed to cancel it. It was not possible to directly request the nullity of the license since the period for requesting it had already elapsed.

Greenpeace also urged the TSJA, in the same appeal, to order the demolition of the hotel without waiting for the Carboneras City Council to comply with the obligation to cancel the license as it was a pure formality. It was alleged that demolishing the hotel without having annulled the building permit did not infringe the principle of legal certainty since the license had been granted illegally and the participants in its concession had the means to know it. The knowledge of the illegality of the license by the promoters has been accredited by the Audiencia Nacional in two firm sentences. Greenpeace also alleged in the appeal that since the PGOU that classified El Algarrobico as developable had been annulled, the license had lost the legal support on which its concession was based.

The decision of the TSJA number 2956/2021 of July 22 put an end to the procedure forcing the City Council of Carboneras to initiate the file for the ex officio review of the license but denying the possibility of demolishing the building as long as the Carboneras town hall does not annul that title law that allowed its construction.

The decision of the TSJA was appealed in Cassation by Greenpeace and the City Council of Carboneras. Greenpeace asked the Tribunal Supremo to agree to the demolition without waiting for the formal annulment of the license and the Carboneras City Council appealed the need to review it ex officio. The admission room of the Tribunal Supremo by Order dated May 18, 2022, it did not admit the appeal of the City Council of Carboneras for processing, therefore the aforementioned decision of the TSJA 2956/2021 of July 22 regarding the obligation of the City Council of Carboneras to review ex officio the works license.

The same Order did admit Greenpeace's appeal for processing, but the Tribunal Supremo has agreed that the demolition of the Hotel cannot be ordered as long as the Carboneras City Council does not comply with its obligation to cancel the building permit. The ruling is already known but as of today the sentence has not yet been made public.

The problem is that the Carboneras City Council systematically refuses to comply with all the rulings against the hotel and also refuses to initiate the file for the ex officio review of the license ordered by the aforementioned final decision of the TSJA number 2956/2021 of July 22. .

Any jurist will think that the refusal to comply with the sentences by the City Council of Carboneras is very easy to circumvent by asking for their forced execution and denouncing the mayor for the alleged crime of disobedience. Well, both measures have already been adopted without success. The Carboneras City Council does not comply with the sentences and when environmental groups denounced the mayor of Carboneras for an alleged crime of disobedience, the Juzgado de Instrucción de Vera filed the complaint.

In order not to beat around the bush, I am going to focus on the most important thing, the cancellation of the building permit, the only obstacle to proceeding with the demolition of the hotel.

Once the Order of the Admission Room of the Tribunal Supremo dated May 18, 2022, declared the aforementioned decision of the TSJA number 2956/2021 of July 22 final, Greenpeace asked the TSJA the forced execution of the same by writing dated July 25, 2022 but to date there has been no response .

The refusal of the City Council of Carboneras to cancel the license and the need for its cancellation to proceed with the demolition have placed the Algarrobico hotel in a dead end: there is no demolition without cancellation of the license, the City Council of Carboneras refuses to cancel it and For the moment, the legal mechanisms to force him have not worked.

Following the recent announcement of the verdict of the Tribunal Supremo denying the possibility of demolishing the Hotel as long as the building license is not annulled, the President of the Tribunal Superior de Justicia de Andalucía has publicly declared that if someone requests the forced execution of the sentence that obliges the City Council of Carboneras to start the file for the ex officio review of the building permit, they will adopt "added measures” to enforce the law.

That same day, Greenpeace reiterated the request for forced execution of the sentence in accordance with the provisions of articles 103 et seq. of Law 29/98.

We are still waiting for the TSJA to decide on whether or not to force the mayor of Carboneras to submit to the most elementary rules of a Rule of Law.