The TSJA has put a sentence on hold despite the development not being legalised in the new town plan

The Andalusian High Court (TSJA) has once again ordered the postponement of a demolition order for properties built with illegal planning permission granted by a GIL-run council, at least, that is, until the new PGOU urban development plan has been approved. The extra breathing space, favoured by the Town Hall and the Junta de Andalucía, has been granted on the grounds that many of the 18,000 illegal properties in the town could be made legal in the new plan thanks to the compensation system.

So far so good. The court agrees with the Town Hall and the Junta that it is only logical to wait for the new plan to come into force before drastic decisions are made.

However this last ruling has even greater significance. The development in question refers to blocks 6, 7, 8 and 9 of Playa Golf Rio Real, a total of 29 houses, the majority of which are lived in, and which were built on land reserved for parks and gardens and sports and cultural facilities. This is one of the 14 developments that are expected to be left off the new PGOU document and will therefore remain illegal, implying that sooner or later they will have to be demolished. As well as being built on land not designated for construction, these houses also invade a site of archaeological value.

The properties are incompatible with the new town model envisaged in the PGOU, which was provisionally approved on July 19th. According to the new plan the area in question will be part of a coastline open park area which leaves little leeway for negotiation for the developers, Rio Real Playa S.L., or the owners of the properties.

Despite learning of this situation from the team responsible for drawing up the new PGOU, the court has nevertheless decided to postpone the demolition order until the new plan has received its final approval.

“As the Andalusian authority has specifically called for our final decision to be put off until the Plan has been published, we must respect their appeal and at this point make no statement about demolition”, explains the court sentence which also makes reference to the fact that the holders of the illegal licence are calling for the original sentence, and therefore the demolition, not to be carried out at all.

The judge went on to explain that suspending the sentence until after the PGOU has been approved suits all parties. The Junta, who initiated action against the illegal development in the first place, believes that demolition will be inevitable once the development plan comes into force. Meanwhile the local authority and the developers favour the decision because they claim that the final approval of the document could lead to the sentence being cancelled altogether.

These are some of the arguments given by the judge in this case which could be applied to other developments in a similar situation as Playa Golf Rio Real. Another point perhaps sheds some light on the future of properties whose planning permission has been withdrawn by the courts. The judge stressed that demolition was a “necessary consequence” but that not all cases of the annulment of planning permission necessarily led to demolition. He refers to a modification in planning regulations as one of the causes that could make it impossible for the demolition order to be carried out.

This latest ruling highlights the paradoxical situation of demolishing something that could be authorised in a new PGOU, especially as these new planning regulations for Marbella have yet to be finally approved and published. It was precisely this “pathological scenario” - the absence of legal guidelines - that gave rise to the granting of licences that were later annulled, with more than a thousand licences in this same situation, explains the judge.

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