The Fifth Section of the Contentious-Administrative Chamber of the Supreme Court has declared in accordance with law the resolution of the Department of Housing, Public Works and Structure of the Territory of the Generalitat Valenciana that on December 17, 2018 approved the Special Plan of the Logistics Activities Zone of the Port of Valencia.
The Supreme Court upholds the appeal of the Valencian Generalitat and Valencia Plataforma Intermodal y Logística, S.A., against the ruling of the Superior Court of Justice of the Valencian Community, of March 31, 2022, which annulled both the agreement and the Special Plan for not having processed by the autonomous Administration a strategic environmental assessment by the ordinary procedure, but by the simplified procedure.
The TSJCV agreed with the La Punta La Unificadora Neighborhood Association regarding the resolution of the Housing Department, dated December 17, 2018, which decided to definitively approve the ZAL Special Plan.
According to the Supreme Court ruling, the surface area of the affected sector is 772,961.17 square meters, and the Plan provides for the creation of a logistics center adjacent to the Port of Valencia, where activities and services that confer added value to merchandise related to international maritime traffic, being an area intended for the development of storage, distribution and assembly activities of merchandise, industrial components, materials and any type of products linked, for the most part, to maritime traffic, the high court has reported in a statement.
The TSJCV annulled the plan considering that a transformation of the extension and characteristics as planned required, according to the law, that the strategic environmental evaluation be carried out by the ordinary procedure - of greater complexity and extension, and that, in addition, it allowed alternatives to be proposed. from the environmental perspective - and not from the simplified one used by the Administration.
The Supreme Court justifies its decision by considering it "unquestionable" that the land referred to in the 2018 Plan had already been transformed from rural land for agricultural use to urbanized land, as the first Special Plan of the ZAL of the Port of València had been executed. of December 23, 1999, although that plan was annulled ten years later by the Supreme Court itself "for formal reasons."
The judges affirm that, from 1999 to 2009, the date of annulment, this initial Plan enjoyed a presumption of legality, without any precautionary measure being adopted to suspend its effects, which is why the Administration proceeded to carry out the works of urbanization planned therein, which ended on November 15, 2005.
The ruling emphasizes that one is not "properly in the presence of legal acts but of material actions (urbanization works) carried out under that rule (the Special Plan) whose illegality is subsequently declared" and, without being able to establish a general rule in this regard, "the specific circumstances in which the material actions were carried out must be taken into account": the development "is carried out under the protection of a legal norm that enjoys the presumption of legality and effectiveness for ten years" . Added to this is "the unchangeability of the factual situation produced in the execution of the Special Plan whose illegality was subsequently declared."
The judges also consider that, given the "special circumstances" of "exceptional nature" that occur in this case, "it is evident that it is no longer possible for the Administration to exercise its powers to restore the urban order, restoring the state of the land to provided for in the General Urban Planning Plan of Valencia (rural land with agricultural use), which is what formally corresponds to it after the cancellation of the Special Plan, since the Logistics Activities Zone of the Port of València is fully developed urban planning and has an enormous extension".
From the approval of the first plan (year 1999) to the cancellation of the last one (year 2022), 23 years have passed and the ZAL "is fully developed urban planning and has an enormous extension."
"Neither socially nor economically would it be acceptable to carry out restoration works on the land so that it recovers its rustic condition for agricultural purposes and, immediately afterwards, approve a new Plan by which the same lands are urbanized in response to the public interest in the development of the Logistics Activities Zone of the Port of Valencia", he adds.
For the Supreme Court, this represents a "determining fact" in the processing and approval of the new Special Plan in 2018, which allows justifying the use of the abbreviated procedure for the strategic environmental evaluation. Furthermore, it takes into account that in both the 1999 and 2018 Special Plans there was a positive environmental evaluation, although in the latter case it was through a procedure that was formally "not correct."
Thus, they indicate that the Administration's option "has been to give virtuality to the so-called doctrine of the normative force of the factual, regardless of the way or procedure by which the land materially stopped showing the inherent characteristics to be classified by the PGOU of Valencia as non-developable land for agricultural protection and materially began to have the characteristics of urban land", as stated in the ruling.
In summary, it points out that "on the confirmed physical reality of these lands, the little environmental impact that the Special Plan entails, given that its determinations come to consolidate the urbanization works that were executed at the time without producing an essential alteration with respect to the existing reality. , so, consequently, its environmental impact is practically non-existent, which would justify the use of the simplified procedure of strategic environmental evaluation."
In any case, he adds that to maintain the legality of the plan, the strategic environmental evaluation obtained by the simplified procedure must be positive, as is the case in this case. Thus, it concludes that the administration's choice of the simplified environmental evaluation procedure as a necessary procedure for the approval of the ZAL Special Plan, "does not produce the disabling effects provided for" in Law 21/2013 and, therefore, annuls the ruling. of the TSJCV.
