21 July 2014

The Junta de Andalucía reconsiders article 45 of the POTA: a more flexible interpretation given to limits on territorial growth of municipalities.

The Junta de Andalucía reconsiders article 45 of the POTA: a more flexible interpretation given to limits on territorial growth of municipalities.

The 7th of July brought good news from the Department of the Secretary General for Territorial planning; Instruction 1/2014 was finally approved. This Instruction establishes criteria to evaluate urban growth proposed for municipalities. In this respect, it has introduced a substantial modification to article 45 of the POTA, by considering the criteria to be considered as a general indicator and not as a limit or absolute prohibition to surpass growth of 40% on existing urban land and 30% on population. These limitations were included in Instructions 1/2007 and 1/2013 and are now invalid.

We have always considered that the boundaries to growth in municipalities -in the terms expressed in article 45 of the POTA- should be interpreted as stated in the Sentence of May 17th 2011, amongst others by the TSJA Court in Málaga, that considers this legal precept as a general criteria and not as an absolute and prohibitive limit to surpass established growth indicators.

Instruction 1/2014 expressly recognizes that “in its wording previous jurisprudence in the past years related to the intervention of the Comunidad Autonoma in the analysis and control of municipal urban zoning has been taken into consideration, as well as its adaptability to territorial planning and, specifically, the Sentence by the TSJA that has ruled on several appeals against Decree 206/2006 of November 28th, that also adapts to the POTA…..

Therefore, Instruction 1/2014 revokes Instructions 1/2007 and 1/2013 from the Department of the Secretary General for Territorial Planning that was offering a restrictive interpretation of article 45 of the POTA, and, not following jurisprudence set by the TSJA Administrative Court in Malaga. In other words it was restricting growth indicators for municipalities instead of considering the legal precept as a general indicator.

A door is now opened for dialogue between the Junta de Andalucía and tourist municipalities along the andalusian coastline, to finally establish a territorial model.

We value Instruction 1/2014 positively in that it permits the Department of the Secretary General for Territorial Planning to adapt to doctrine and jurisprudence set by the TSJA Administrative court in Málaga on the final interpretation of article 45 of the POTA.

Once again we insist, strongly, on the need to complete the existing legal frame and develop its regulation with respect for the principles of legal hierarchy and municipal autonomy and with the final purpose of setting coherent goals established in the POTA, for the area of the Costa del Sol by integrating the area’s singularities that derive from the main economic activity; tourism.

Ignacio Pérez de Vargas

Pérez de Vargas Abogados.

 

Written by

Ignacio

Pérez de Vargas López

[email protected]

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