Order of the Hon.
Mr. Adviser of Promotion and Infrastructures, dated January 25, 2017 regarding the revocation of partial final approval orders, of the General Municipal Plan of Ordination of Totana.
343/04 of planning.
On January 25, 2017, the Hon.
Mr. Minister of Development and Infrastructure, has issued the following Order:
Antecedents of fact
First.- By Order of this Ministry of April 19, 2011 (BORM No. 117 of May 24, 2011) it was agreed:
"To grant final approval in a partial way to the General Municipal Plan of Ordinance of Totana, in respect to the Consolidated Urban Land of the nucleus of Totana, with the building heights of the current Subsidiary Rules for the Old Town and suppression of the possibility Of increase of heights "by agreement" to which the Current Hull Regulation refers, and proof of obtaining as preferential the lands qualified as SGEL adjoining the north variant of the hull and the railroad tracks and identified in the complementary document;
It being understood that such approval is granted subject to the correction of the deficiencies indicated in the ninth antecedent, lacking in executivity in the affected sectors or areas, until they are rectified by agreement of the competent municipal body.
Second.- To suspend the granting of definitive approval of said General Plan in the rest of areas until the deficiencies that are established in the ninth antecedent are adequately fulfilled.
Third.- To order the publication of this Order and of the Urban Norms contained in said project, taking into account the observations and corrections indicated in the technical and legal reports dated 5/4/11 and 4/15/11;
And in accordance with what is established in Article 32.3 of Organic Law 4/1982, of June 9, of the Statute of Autonomy for the Region of Murcia, in relation to Article 134 of the current Urban Planning Regulation;
As well as its notification to the City Council and all interested parties included in the file ... "
The justification of this Order is found in the eleventh antecedent according to which:
"In view of the opinion of the Territorial Policy Coordination Commission, the sectoral reports in the file, the last documentation sent by the City Council and the report of the Urban Planning Service, the Deputy Director General for Urban Planning and Territorial Planning issued , Dated April 18, 2011, report that, in what concerns is transcribed below:
'(...) Only in hypothesis 2, which includes in the calculations of residential building calculations the consolidated urban land of Totana (and some areas of unconstrained urban land) with an estimated residential buildability of 1,581,131 m2, would justify the Compliance with the SGEL standard, considering the total of free spaces computed, 318,772 m2, which include 97,836 m2 in urban land and 220,936 m2 outside the urban area but contained in the crown of the urban center of Totana, north variant of the hull and roads Of the railroad to the south, which would reach a standard of 20.16m2 / m2, complying with the provisions of art.
98 of the TRLSRM.
The calculation of residential buildability refers only to the Casco Urbano de Totana, without including the proposed increases for the Old Town (zones referenced as 4 and 5 in the document) or the possible increases "by agreement" to which the standard of Current Helmet.
However, in order to be able to compute the area of â€‹â€‹SGEL ascribed to the urbanizable land without sectorization, it must be qualified as a preferred one, as it is necessary to achieve the objectives of the Plan, in accordance with what is stated in art.
102 TRLSRM, and its form of obtaining must be justified and accredited, including the determinations in the Program of Action.
An agreement signed with the Public Entity of Water is submitted on 30/1/07, whose forecasts for 2010 far exceed the estimated demand for urban land.
However, the water demand table should be updated with forecasts of new developments, integrating into the Action Program and the Economic Survey of the Plan.
Consequently, and considering the deficiencies identified by the SCCP and in view of the complementary documentation and justification submitted to justify compliance with the SGEL legal standard and the sufficiency of water resources to meet urban land demand, and considering that the management and Regulation of the consolidated urban land of Totana's nucleus is sufficiently defined, with the reservations indicated in the reports issued, it is proposed:
1. Partial final approval of Totana's Consolidated Urban Land, with the building heights of the current Subsidiary Rules for the Old Town and elimination of the possibility of increasing heights "by agreement" referred to in the Current Casco Standard, And must be accredited as preferential land classified as SGEL adjoining the north variant of the hull and railroad tracks and identified in the supplementary document.
2. To suspend all other areas of the General Plan until such deficiencies and determinations are justified or fulfilled Â».
Second.- On July 22, 2011 (BORM No. 108 of September 9, 2011), the Minister of Public Works and Land Management issued an Order for which he agrees to take cognizance of the correction of the condition indicated in The first paragraph of the Order of this Council of 19 April 2011, and the supporting documentation should be integrated into the consolidated text of the General Plan.
Third.- The Mayor of Totana City Council sends an official letter dated December 30, 2016 attaching certification of the agreement adopted by an absolute majority by the Plenary of the Corporation on December 29, 2016 in which it is agreed:
"To urge the General Direction of Territorial Planning, Architecture and Housing of the Ministry of Development and Infrastructures of the Autonomous Community of the Region of Murcia, to proceed to the rectification of the Resolution Order on 04/19/11 issued by The Minister of Public Works and Territorial Planning, which proceeds to partial final approval, subject to remedy of deficiencies, the General Municipal Plan for Ordinance of Totana (published in BORM No. 117 dated 24 / 05/11), due to the existence of substantial errors in the calculations on which said Order is based, in the terms set out in the report issued by the municipal technicians. "
The legal and technical report is attached to the plenary agreement, signed by the Architect and Technical Architect Municipal on December 28, 2016:
"In relation to the content of the Order 19/04/2011, we have to report that in analyzing the heights contained in the document to which the Order refers, it has been found that the residential building area of â€‹â€‹the consolidated urban land of Totana's hull Estimated in the eleventh antecedent antecedent of the aforementioned Order for the consolidated urban center of Totana (1,581,111 m2t), is less than half of the residential buildability actually contained in the PGMO document submitted for approval and partially approved subject to (Estimated at over three million two hundred thousand square meters as detailed in the document attached to this report).
So that the surface of SGEL (318,772 m2s that include 97,835 m2 in urban land and 220,936 m2 outside the urban center but contained in the surrounding urbanisable soils), to whose accreditation as a preferential obtainment conditional the said approval is manifestly insufficient for the Residential buildability actually contained in the document submitted for approval ".
- On January 19, 2017, the Urbanism Department of this General Directorate issues a report stating:
In relation to the documentation sent by the City Council to remedy the deficiencies of the PMOC indicated in the report of the General Directorate of Land Management and Housing from 2015-07-29 issued a report of the General Directorate the 2016-11-25 centered Exclusively in two deficiencies directly related to the computation of buildability due to its transcendence in compliance with standards and their implications in the rest of the document, which were as follows:
Â· Residential capacity of the PGMO
There is no detailed calculation of the m2t residential building area in consolidated urban land.
The building surface considered in the documentation provided on 04/13/2011 for La Ramblica and El Parral was lower than that included in the respective partial plans
Â· URBAN GROUND
In relation to the heights of the historic center included in hypothesis 2 of the documentation provided on 04/13/2011, some differences are observed in some apples in which 2 plants were collected maximum when in said documentation were indicated 3. In relation to the Casco Actual, the Order approved the proposed heights subject to the correction of deficiencies related to heights and to the suppression of increases by agreement.
The increments are suppressed by agreement and the heights are redefined.
The criterion followed in response to height deficiencies must be justified.
In the same it was concluded that they were not corrected, updating its wording as follows:
Â· Residential capacity of the PGMO
The computations contributed with RE: 08/08/2016 are made considering a height of construction in consolidated urban land of Casco Actual other than the one approved in the Orders of 2011. They must be reworked taking into account the approved heights.
Partial sums must be provided by area and area.
They should be included in the Memory of the PGMO.
Based on the residential buildability finally resulting, the compliance with standards must be justified.
Â· URBAN GROUND
In relation to the heights of the historic center, it should be noted that in the Casco Actual the Order of 2011 approved the heights proposed by the PGMO with the suppression of increases "by agreement" and subject to correction of deficiencies.
The arguments provided by RE: 08/08/2016 do not justify the criterion followed in 2014 in the definition of heights of the Current Casco to be able to invalidate the affirmation expressly of the Order of approval of the consolidated urban ground of Casco Actual with defined heights but without Increments "by agreement".
In relation to this question, the City Council provides justification for the error in the calculations made in 2011, which were supported by the orders of 2011 to carry out partial final approval of the General Plan, and based on the finding of its existence requests The rectification of the Order of 2011-04-19
As already stated in the last report "It is verified that the calculations made by the City in April 2011 to justify compliance with the standard of free spaces were very imprecise.
Thus, it was considered that with the qualified surfaces computed in that document the standard was fulfilled, when in fact it was not fulfilled.
On the basis of these calculations, the partial final approval of the General Plan occurred, albeit affected by numerous deficiencies, among which are those mentioned in the justification report that have led the City to rethink the heights in the scope of the current Casco de Totana "
The documentation sent by the City Council in April 2011 contained a list of surfaces that accompanied a map without identification of each one of the apples.
The list appeared to correspond to apples, and in the few cases that allowed its identification because of the small number of apples, they were correct.
Thus, the errors and inaccuracies contained in the calculations were hardly detectable.
In spite of their more or less correct appearance, they did not consider themselves fully compliant, but continued to point out as deficiency, as recorded in the ninth antecedent of the Order, which
"The calculation of the residential buildability of the whole of the urban land and the built-up urbanized area must be completed, in order to justify compliance with the applicable standards, including the residential buildability allowed in the areas of economic activity"
The order took as certain the area collected in the calculations of April 2011 and took for granted that the standard of general system of free spaces for the urban land whose conditional approval was proposed was fulfilled, when in fact it was not fulfilled.
With the detailed calculations and the apples identified, it is verified that the calculations made by the City in April 2011 contained errors that affected extensively all the urban land approved in the Order of 2011-04-19, with which, the The total buildability that was collected in the Order (1,581,131mÂ²) was approximately half of the one that actually gave the ordination and, therefore, the need for a general system of free spaces was twice that considered, The resulting general system of free spaces was actually about half that required by the TRLSRM. "
Fundamentals of Law
First.- In accordance with the provisions of article 167 of Law 13/2015, of March 30, on Territorial and Urban Planning in the Region of Murcia, the competence to approve the Municipal General Plans of Ordination corresponds to the owner of this Counseling.
Article 158, paragraph d, of the aforementioned Law establishes that the body to which final approval corresponds shall adopt one of the following decisions:
... Suspend the approval for deficiencies expressly indicated, for non-compliance with the current legality or for reasons of territorial opportunity or that affect the territorial model of plan, which must be remedied by the city council, submitting it, as appropriate, to new public information as indicated For the municipal processing of the plan.
Second.- Article 109 of the current Law 39/2915, of October 1, of the Common Administrative Procedure of Public Administrations establishes:
The Public Administrations may revoke, while the limitation period has expired, their tax or unfavorable acts, provided that such revocation does not constitute exemption or exemption not allowed by the laws, nor is contrary to the principle of equality, public interest or legal system.
2. Public Administrations may also rectify, at any time, ex officio or at the request of the interested parties, material, de facto or arithmetical errors in their actions. "
Third.- The current legal regulation of the institution of the revocation of administrative acts (Law 29/2015) is similar to that of Law 30/92, and in our doctrine, with the exception of García de Enterría, it was almost an opinion The unanimous assumption that revocation took place only for reasons of opportunity, not legality.
This was also stated by the TS.
In addition, Law 30/92, in article 105, as its predecessor the LPA of 1958, only regulated the revocation of acts of assessment or unfavorable to the interested parties, which was not even applicable for acts Which had a double effect, although the old art.
112 LPA of 1958, establishing the same limits for review as the revocation, left that door open.
And in this sense, as one author says, it is difficult to find a case of revocation for reasons of opportunity, interpreted in the strict sense, that does not violate the principle of equality and does not imply a waiver of law.
Consequently, the revocation of acts favorable to the interested parties, as well as the cases of revocation for reasons of legality, was outside the said regulation.
With regard to the former understood the doctrine that the resource to which he had to go was precisely that of the ex officio review of art.
102 LRJPAC, or article.109 in the case of the LPA of 1958. However, this consideration had no justification since in the cases of art.
102 we are faced with an act that incurs a vitiation of nullity in full right that is intended to replace following the review procedure by another that is considered according to law.
However, in the cases of revocation we are faced with an originally valid act that for various reasons or reasons ends up losing its legal effectiveness.
This is the typical case of reimbursement of subsidies, on which there is a deep case-law of the TS (TS order of 5 July 2012, EDJ 2012/161153, and judgments of 25 October 2011, EDJ 2011/263081, and Of 20 May 2008, EDJ 2008/97514), aimed at proclaiming that in the cases of reinstatement, recourse to the ex officio review was not appropriate.
Of course, the most appropriate regulation of this legal figure was found in art.
16 of the Regulation of Services of Local Corporations.
Therefore, the existence of a precept of a similar nature and of a basic character applicable to all Public Administrations was lacking.
But, on the other hand, legal practice shows us certain assumptions by virtue of which the revocation figure may be a suitable means for a certain change of circumstances to occur once the revocation can take place for other reasons, such as Breach of conditions - precisely the loss of the legal effectiveness of an earlier act and its replacement by a more lawful one, it could even be said that with justice.
It is admitted, in any case, in the doctrine that the figure of the revocation in the tax area and included in art.
219 LGT, does not have the same profiles as the revocation provided in art.
104 of Law 30/1992, although it admits other causes, other than the assessment of a vice of illegality, that give rise to its existence, as defined in art.
219 LGT, as well as the appearance of overlapping circumstances that reveal the inadmissibility of the act dictated.
In urban matters, the Supreme Court in Judgment of December 30, 2014, case number 3897/2012, admits the revocation of the initial approval of the General Plan of Los Alcazares stating: "As pointed out by said Chamber in the judgment under appeal, the appearance Of a new urban and environmental regulation perfectly justify the revocation decision of the initial approval with the purpose of elaborating a new document of the General Plan in accordance with the legislative changes that have taken place since the previous initial approval with a territorial model sustainable and adapted to the needs of the municipality ... all the reasons given by the municipal corporation to revoke the initial approval agreement ... such insecurity and arbitrariness, as stated by the sentencing court, would have occurred to proceed with the processing. "
Applying the foregoing to the specific case, we must conclude that the orders that are object of revocation have an unfavorable character and do not double effect, favorable and unfavorable, since it is a partial definitive approval subject to the rectification of deficiencies that has been revealed impossible since The data provided in 2011 were grossly flawed.
Based on the above facts and grounds of law
First.- Revoke the Orders of this Council of 19 April 2011 (BORM No. 117 of 24 May 2011) and 22 July 2011 (BORM No. 108 of 9 September 2011), by the That the final partial approval of the General Municipal Plan of Ordinance of Totana, and the knowledge of it, in accordance with the established in article 109.1 of the current Law 39/2015, of October 1, of the Administrative Procedure Of the Public Administrations.
Second.- Suspend the processing of the General Plan until such time as the deficiencies reported by the Commission for Territorial Policy, at its meeting on April 6, 2010, have been properly completed, following the corresponding corporate agreement and the public information thereof, in accordance with To the established article 158, section d) of Law 13/2015, of March 30, of territorial and urban planning of the Region of Murcia.
Third.- Publish this Order in the Official Gazette of the Region of Murcia and notify the City of Totana.
Against this Order, a Contentious-Administrative Appeal may be lodged with the Contentious-Administrative Chamber of the Superior Court of Justice of the Region of Murcia within a maximum period of two months from the day following its publication.
Murcia, January 26, 2017.-The Director General of Land Planning Architecture and Housing, Nuria Fuentes García-Lax