License of uses and provisional works
There is currently no possibility of obtaining a license for a work or urban activity “against plan”, but there is to carry out a work or an activity that, without conforming to the plan, it does not hinder its execution or, with certain limitations, it is not expressly prohibited, nor is it incompatible with the planning.
This is provided for in the current art. 13.2, d) LS 2015. Take into account the constant and peaceful legal regulation that the state legislator has been maintaining on this matter.
Based on the coincidence of the applicable legality and the jurisprudential and scientific doctrine on the matter, it is possible to authorize uses and works of a provisional nature in the cited terms.
In the event that works are being carried out without a planning license, we must say that we are dealing with illegal works, due to lack of authorization required municipal. And this obliges the City Council to adopt the measures to protect urban legality that are provided for in the Law.
Authorization of these justified uses and works is non-discretionary. Certainly, the Corporation appreciates the justification for the request, but it must resolve to grant the license if the justification is demonstrated and must deny it otherwise.
In this sense of considering the regulated nature of this type of licence, the jurisprudence [SSTS of 10.16.89; 03.29.94; 07.21.94 and 02.7.95]. These licenses are granted precariously, that is, with the possibility of revocation without compensation [STS 06.26.95].
It is in this type of licenses where the principle of proportionality reaches the greatest importance (STS 03.29.94).
The justification, then, for the granting of these licenses comes from the express exclusion of the vocation of permanence of this type of intended uses or works. Justification that is recognized expressly and repeatedly by the Jurisprudence. In addition to the one already cited, in the same sense, the STS of February 7, July 3, and December 29, 1987, cited in the STS of 03/29/1994 (LA LEY JURIS: 6105/1994).< /p>
The restrictive content of art. 29 of the current Law 40/2015, of October 1, of Legal Regime of the Public Sector (LRJSP), is, in this sense, coincident with the jurisprudential doctrine that is unanimous and that, bringing cause of art. 106.1 CE, constantly requires the existence of harmony between the means used and the purpose pursued.
Remember the content of the STS of 3.06.92 according to which, the principle of proportionality, is configured as an extraordinary means of avoiding damages to the administrator that would come from a strict application of the rule in open conflict with the principles of material justice. In this sense, see the SSTS of 14.05.90 (Arz. 4905) and 2.05.95 (Arz. 3604), among others.
The City Council must decide if the works carried out without a license can be legalized, if they are temporary, small-sized and removable works that “do not hinder the planning execution.”
The City Council has inalienable competence, according to art. 25.2 LRBRL in the following terms:
“The Municipality will in any case exercise its own powers, under the terms of the legislation of the State and the Autonomous Communities, in the following subjects:
Urbanism: planning, management, execution and urban discipline. Protection and management of historical heritage. Promotion and management of public protection housing with criteria of financial sustainability. Conservation and rehabilitation of the building.”
It is a decision that corresponds to the City Council, if it considers that the specific circumstance exists that the works, if their authorization is expressly requested, are provisional and not they hinder the execution of the planning. That is, the City Council must motivate its decision, both in one direction and in the other.
Likewise, regarding the possible appearance in the granting file, if applicable, of a municipal license to carry out provisional works, of the remaining owners of the EU, the provision of art. 181.2 ROF, according to which:
“If the Administration is aware that there are other interested parties in the file, it will require them in writing to appear within a period of ten days and add what they think appropriate.”
Taking into account what has been indicated, it is up to the City Council to decide on a reasoned basis whether the legal and jurisprudential requirements cited in our response are met in this case.
And all this, without prejudice to the obligatory municipal reaction against the transgression of the legal system that has meant the realization of the works already begun, without municipal authorization.
