Judicial ruling on the protection decree
The Administrative Law Division of the High Court of Justice of the Valencian Community (TSJCV), in a ruling from its First Section dated 17 September, has partially upheld the claim by developer VAPF against decree 197/2022 of the Generalitat, the regulation that had declared the Special Conservation Zone and Special Protection Area for Birds known as Penya-segats de la Marina. The court refers to "partial annulment" of the regional text and orders that two of the three plots claimed by the company, identified as B and C, "shall be excluded" from the protected area.
The court's reasoning
According to the TSJCV, the Generalitat based the inclusion of those lands on a town plan that it classified as "a town plan no longer in force": the new General Plan that the Benitatxell Town Council provisionally approved in 2011, but which never received final approval from the Generalitat itself. The applicable town plan at the time the decree was issued was, in fact, that derived from the 1975 Partial Plan and the 1987 Subsidiary Standards.
Expert evidence presented in the proceedings established that plots B and C were classified as urban land, designated for grouped housing, and had all the services of an urbanised area: asphalt, pavements, water, sewerage and electricity.
Unequal treatment of plot A
The ruling recalls that the Generalitat itself had already removed a third plot, A, from the protected area for being urbanised, whilst keeping B and C within the protection perimeter. The court considers that this difference in treatment lacks justification and violates the principle of equality.
The annulment declared affects only these two plots in the Cumbre del Sol development: the remainder of the decree protecting the Penya-segats de la Marina area remains in force. The ruling is not final and the parties have 30 days from notification to lodge a cassation appeal, either to the Supreme Court or to the TSJCV Division itself. The ruling does not impose costs on either party.
