SILENCE ADMINISTRATIVE AND OFFICE REVIEW OF THE LICENSES URBANISTICS: THE RETURN OF EURIDICE

Abstract

Can licenses to build in Spain be obtained by positive administrative silence? Yes. But the problem is whether it is possible to obtain a license, through positive silence, even though it may be contrary to urban planning regulations. A negative answer, as given by Spain’s Supreme Court, interpreting Article 8.1.b) of the revised Land Law of 2008, responds to a statutory provision that breaks the principles of legal certainty and legitimate expectations. How many fi rms and individuals can really be sure in the case of silence and start construction without planning permission? Planning permission obtained by positive silence should be as valid as that obtained by an explicit response issued by the Town or City Hall. Th is paper advocates the return of positive silence (the return of Eurydice), even when the construction project be contrary to development plans and zoning laws, with the exception of certain cases (historic buildings, especially protected areas, etc.). When the license obtained by positive silence is contrary to plans and zoning law it will be subject to suspension or revocation, which may be declared by the Town or City Council through a review process ensuring the principle of citizens’ legitimate expectations and legal certainty and without prejudice to the Public Administration’s extra-contractual liability for damages resulting from the procedure. Moreover, the author argues that Autonomous Communities should not be considered “an interested party” in the reviewing procedures for planning permission corresponding to the Town Hall. But the system should be reformed to facilitate the Autonomous Communities challenging permissions issued by local authorities in cases of grave breaches of development plans and zoning laws.