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URÍA & MENÉNDEZ
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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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ENVIRONMENTAL NEWSLETTERNOTICE: With effect as from the present number, and to provide a better service to our clients and friends, the Environmental Newsletter of Uría & Menéndez will include two new features: a brief review of the more innovative court resolutions on environmental matters in Spain, and the most relevant new legislation and court resolutions on environmental matters in Portugal. S P A I N NATIONAL REGULATIONS Soil PollutionRoyal Decree 9/2005, of January 14, which Approves the Catalogue of Potentially Contaminating Activities of the Soil and the Criteria and Standards for the Declaration of Contaminated Soils. BOE of January 18, 2005 (More information). Individual Assignment of Greenhouse Gas Emissions Allowances Resolution of the Deputy Secretary of the Ministry of the Presidency of January 26, 2005, which Approves the Publication of the Agreement of the Council Of Ministers of January 21, 2005, by which the Individual Assignment of Emissions Allowances is Approved for the Facilities Included in the Scope of Royal Decree-Law 5/2004, of August 27, in which a Trading Regime is Established for Greenhouse Gas Emissions Allowances. BOE January 28, 2005 (More information). Access to the Information on Environmental MattersProcess of Ratification of the Agreement on Access to the Information, the Participation of the Public in the Decisions and the Access to the Justice System on Environmental Matters, completed in Aarhus (Denmark). BOE February 16, 2005 (More information). Waste of Electric and Electronic EquipmentRoyal Decree 208/2005, of February 25, on Waste Electric and Electronic Equipment Management. BOE February 26, 2005 (More information). Integrated Pollution Prevention and ControlLaw 1/2005, of March 9, which Establishes a Scheme for Greenhouse Gas Emission Allowance Trading. Law 1/2005 modifies Law 16/2002, of July 1, on Integrated Pollution Prevention and Control. BOE of March 10, 2005 (More information). REGULATIONS OF THE AUTONOMOUS REGIONS Basque Country. Soil PollutionLaw 1/2005, of February 4, on Soil Protection in the Autonomous Region of the Basque Country. BOPV of February 16, 2005 (More information). Catalonia. Integrated Pollution Prevention and Control.Decree 50/2005, of March 29, which develops Law 4/2004, of July 1, which Regulates the Modification Process of Existing Activities under Law 3/1998, of February 27, and amends the Decree 220/2001, of the Management of Manure. DOGC of March 31, 2005 (More information). Autonomous Region of Navarra. Environmental ProtectionLaw 4/2005, of March 24, on Intervention for Environmental Protection. BON of April 1, 2005 (More information). COURT RESOLUTIONS Liability for Waste Waters. AznalcóllarJudgment of the Supreme Court (Sala 3ª) of November 22, 2004 (More information). Nuisance, Unhealthy, Harmful and Dangerous Activities. Partial Annulment of the Management Plan for Special Waste of NavarraJudgment of the Supreme Court (Sala 3ª) of July 19, 2004 (More information). Noise pollution. Personal and Family Life and right to Domestic PrivacyJudgement of High Court of Justice of la Rioja (Contentious-Administrative Court) of February 18, 2005 (More information). P O R T U G A L LEGISLATION Natural Habitats Preservation and Wild Fauna and Flora - Wild Bird ProtectionDecree-Law 49/2005, of February 24 (More information). National Plan for the Allocation of Greenhouse Gas Emission Allowances in relation to the 2005-2007 PeriodMinisters Council Resolution 53/2005, dated of March 3rd, published in the Official Portuguese Gazette (“Diário da República”) 4, of March 3 (More information). Greenhouse Gases. Climatic Changes Monitoring and Evaluation National Plan ProgramMinisters Council Resolution 59/2005, of January 13, published in the Official Portuguese Gazette (“Diário da República”) 47, of March 8 (More information). National System Inventory of Emissions by Resources and Removal by Drain of Atmospheric Contaminators (NSIERRDAC)Ministers Council Resolution 68/2005, of January 13, published in the Official Journal Gazette (“Diário da República”) 54, of March 17 (More information). Restrictions on the Marketing and Use of Certain Hazardous Substances and PreparationsDecree-Law 72/2005, of March 18 (More information). COURT RESOLUTIONS Environmental Protection Association - Arrábida Natural Park Classification CaducityAdministrative High Court Sentence (AHCS) dated February 17, 2005 (More information). Parcelling - Ria Formosa Natural ParkAdministrative High Court Sentence (AHCS) dated February 9, 2005 (More information). Construction Licensing - Ecologic National Reserve (“Reserva Ecológica Nacional” - REN) - Environmental and Natural Resources Ministry decision disregarding the legal time limitsAdministrative High Court Sentence (AHCS) dated February 9, 2005 (More Information). |
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S P A I N
NATIONAL REGULATIONS
Royal Decree 9/2005, of January 14, which Approves the Catalogue of Potentially Contaminating Activities of the Soil and the Criteria and Standards for the Declaration of Contaminated Soils. BOE of January 18, 2005.
In view of Articles 27 and 28 of Law 10/1998 on Waste, Royal Decree 9/2005 approves a catalogue of potentially contaminating activities of the soil and the criteria and necessary standards to declare a soil as contaminated.
Royal Decree 9/2005 specifically addresses the obligation of certain agents to provide information to the competent authorities in connection with the contamination of soils. Thus, owners of potentially contaminating activities will be required to provide to the competent authority of the corresponding Autonomous Region, within a period of no more than two years, a preliminary situation report for each of the soils where the aforementioned activities are carried out, in accordance with the minimum contents requirements established in Annex II of Royal Decree 9/2005.
Once the preliminary situation report has been examined, the relevant Autonomous Region may request the owner of the activity or of the soil for more detailed complementary reports, data or analysis which will permit an assessment of the level of contamination in the soils, which in any event, will need to be performed in accordance with the criteria and standards provided by the Royal Decree.
On the other hand, the owners of potentially contaminating activities will also be required to periodically submit situation reports, whose contents and periodicity will be determined by the corresponding Autonomous Region; particularly in the establishment, enlargement and closing of the activity cases.
Besides, the owners of the soils in which a potentially contaminating activity had been carried out in the past, will be required to present a situation report upon the request of a license or authorization for the establishment of any activity, different from potentially contaminating activities or those which imply a change in use of the ground.
Finally, and with regard to the soils in which any of the circumstances described in Annex IV occur, a detailed evaluation of the risks affecting human health or ecosystems will be carried out. Following completion of the evaluation of risks, the owner of the activity or the proprietor of the soil will inform the competent authority of the Autonomous Region about the aforementioned evaluation for the purposes of declaring whether or not the soil is contaminated.
Taking into consideration the information received, in addition to other available sources of information, the Autonomous Region will declare a soil as contaminated for the corresponding uses meeting the criteria displayed in Annex III. The declaration of a soil as contaminated will obligate its proprietor to carry out the necessary measures to proceed with the environmental clean-up within the terms and timeframe stipulated by the competent authority. The soils will no longer be considered as contaminated once the decontamination measures have been fulfilled, and , according to the different uses, it is guaranteed that those soils do not cause an unacceptable risk to human health or the ecosystem. In any case, a soil will lose the condition of contaminated for a determined use once a definitive judgment has been established, prior to which a verification of the effectiveness of the practiced recuperation measures has been undertaken.
Finally, it is important to highlight that, in accordance with Royal Decree 9/2005, the owners of real estate in which any potentially contaminating activity may have been carried out, will be required to declare such circumstance in the legal deed which certifies the transfer of the rights over those soils. The existence of this declaration will be registered at the Land Registry.
The administrative resolution by which a soil is declared as contaminated will be reflected by an entry in the documents corresponding to the affected registered lands, in the latest registration documents of the property. The entry which reflects that a soil has been declared as contaminated will be cancelled by virtue of a certificate issued by the competent Authority, in which the administrative declassification resolution was incorporated.
Individual Assignment of Greenhouse Gas Emissions Allowances
Resolution of the Deputy Secretary of the Ministry of the Presidency of January 26, 2005, which Approves the Publication of the Agreement of the Council Of Ministers of January 21, 2005, by which the Individual Assignment of Emissions Allowances is Approved for the Facilities Included in the Scope of Royal Decree-Law 5/2004, of August 27, in which a Trading Regime is Established for Greenhouse Gas Emissions Allowances. BOE January 28, 2005.
In accordance with Royal Decree Law 5/2004, by this Resolution, the publication of the Agreement of the Council Of Ministers of January 21, 2005, by which the Individual Assignment of Emission Allowances is Definitively Approved (National Allocation Plan 2005-2007).
Process of Ratification of the Agreement on Access to the Information, the Participation of the Public in the Decisions and the Access to the Justice System on Environmental Matters, completed in Aarhus (Denmark). BOE February 16, 2005.
On July 25, 1998, the Spanish Plenipotentiary signed in Aarhus (Denmark) the Agreement on Access to the Information, the Participation of the Public in the Decisions and Access to the Justice System on Environmental Matters, adopted in the same place and on the same date.
Aarhus's Agreement has, as its basic objective, to make effective the principle of accountability and transparency in the decisions on environmental matters. For this reason, it regulates the right of access to the information on environmental matters (legitimated actors, limitations, procedure, etc.), as well as the right of civil participation in the decisions in matters related with the environment.
Royal Decree 208/2005, of February 25, on Waste Electric and Electronic Equipment Management. BOE February 26, 2005.
With the objective of reducing the quantity of electric and electronic equipment waste and to improve its management, as well as reducing the danger factor of its components and promoting the re-use of equipment, Directive 2002/96/CE of the European Parliament and the Council was approved. Its implementation in the Spanish legal system is made through Royal Decree 208/2005.
The purpose of Royal Decree 208/2005 is to improve the environmental conduct of all of the agents who are involved in the life cycle of electric and electronic equipment, such as producers, distributors, users, and in particular, those agents directly involved in the management of the waste which is derived from this type of equipment.
Royal Decree 208/2005 is applicable to all of the electric and electronic equipment that appear in the categories indicated in its Annex I, and exclude those which are part of other types of equipment not included under the scope of the Royal Decree, as well as equipment specifically designed for military use.
Law 1/2005, of March 9, which Establishes a Scheme for Greenhouse Gas Emission Allowance Trading. Law 1/2005 modifies Law 16/2002, of July 1, on Integrated Pollution Prevention and Control. BOE of March 10, 2005.
The final first disposition of Law 9/2005, incorporates a modification to Article 22 of Law 16/2002, of 1 of July, on Integrated Pollution Prevention and Control, that implies the suppression of the limits to the emission of carbon dioxide (CO2) that may be imposed on the integrated environmental authorization.
REGULATIONS OF THE AUTONOMOUS REGIONS
Law 1/2005, of February 4, on Soil Protection in the Autonomous Region of the Basque Country. BOPV of February 16, 2005.
Law 10/1998, of Waste (subsequently developed by Royal Decree 9/2005 ), as well as the Law 3/1998 on General Environmental Protection for the Basque Country, created the base on which to establish a regime for the protection of soil in the territory of the Basque Country.
For the purposes of development of these laws, the primary objective of Law 1/2005 was the protection of the soil in this region and the prevention of its contamination caused by human activity, and likewise, establishes a regime applicable to the existing contaminated and altered soils in the aforementioned territory for the purposes of protecting the environment and human health.
Decree 50/2005, of March 29, which develops Law 4/2004, of July 1, which Regulates the Modification Process of Existing Activities under Law 3/1998, of February 27, and amends the Decree 220/2001, of the Management of Manure. DOGC of March 31, 2005.
In compliance with what is established in the Additional Disposition of Law 4/2004, Decree 50/2005 approves a step-by-step program of modification of Law 3/1998.
Decree 50/2005 also develops and makes definitive those dispositions of Law 3/1998 which require it in order to facilitate its application. Thus, the documentation necessary to present to the Administration, the applicable administrative proceeding, the competent entities and administrative agencies and also the specific activities which are subject to the process of adjustment are specified. In Annex 2 of Decree 50/2005, the following is established; the requirements and accreditation procedure for the technical environmental units which are responsible for verifying the documents of environmental evaluation which have to be attached to the request for environmental authorization and for the environmental license.
Finally, and through Additional Dispositions, certain aspects of Decree 220/2001, of August 1, for the Management of Manure, are modified. This amendment is to ensure that the participation of the administrative system for agricultural and cattle activities is harmonized with the systems of prevention and control regulated in Law 3/1998.
Law 4/2005, of March 24, on Intervention for Environmental Protection. BON of April 1, 2005.
The main objective of the Autonomous Law 4/2005 is the regulation of the different ways of administrative intervention of Navarra's Regional Government Bodies for the prevention, reduction and control of pollution and the environmental impact over the atmosphere, water, soil, as well as over the biodiversity, of certain activities, public or private, as a means of reaching the highest possible protection of the environment as a whole.
The scope of Autonomous Law 4/2005 extends to plans, programs, projects and activities, of public or private ownership, included in any one of its annexes, which, at their start, running or execution, may be at risk of altering the conditions of the environment or causing risks exceeding the restrictions established for the environment or the health and safety of persons and their goods.
Thus, Autonomous Law 4/2005 regulates different types of previous environmental control of certain activities, according to its higher or lower environmental affection. In these types of intervention, it is possible to distinguish between authorizations and information or evaluation. The former consists of two types of authorizations from Navarra's Autonomous Regional Government (the integrated environmental authorization and the authorization of environmental restrictions), and of a municipal license of classified activity, all of them complemented by the corresponding authorization or opening license. In view of the latter type of intervention, the projects environmental impact assessment and the plans and programs of environmental strategic evaluation should be highlighted.
Finally, it should also be noted that Law the 4/2005 repeals as many dispositions of equal or inferior range which contradict what is specified on it and, in particular to:
a) Autonomous Law 16/1989, of December 5 on the control of classified activities for the protection of the environment.
b) Autonomous Law 13/1994, of September 20 on the management of special waste.
c) Autonomous Decree 32/1990, of February 15 by which the regulations for the control of classified activities for the protection of the environment is approved.
d) Autonomous Decree 229/1993, of July 19, which regulates the analysis of plans and projects of works to be carried out in the natural environment.
e) Autonomous Decree 580/1995, of December 4, on the distribution of functions concerning the environmental impact evaluation.
COURT RESOLUTIONS
Judgment of the Supreme Court (Sala 3ª) of November 22, 2004.
The rupturing of a dyke of a mining waste storage pond caused the uncontrolled spillage of highly contaminating substances into the hydraulic public domain, which forced the Public Administration to initiate a critical environmental clean-up process, but which nevertheless caused substantial damages to the environment.
The Supreme Court deems that the company which was in charge of the operation of the pond can not be absolved of responsibility for this rupture by claiming it was caused by the defective technical report prepared by third parties. The company responsible for the operation of the pond is responsible, for both the choice of the companies used in the drawing up of the project and the monitoring of the elements of the pond. In any situation of risk, there is the responsibility to establish measures of control and surveillance, and to implement them both correctly.
Taking into consideration that the company in charge of the operation of the pond is responsible for the spillage, the Supreme Court establishes the costs that it must assume to return things to their original condition, which includes the tasks of cleaning and the prevention of spillages and any other type of indemnity, and for those which it must make for the damage actually caused and those damages which could have been prevented.
Judgment of the Supreme Court (Sala 3ª) of July 19, 2004.
In the event the court is required to decide on the conformity with the law of the Management Plan of Special Waste of Navarra, as approved by the Parliament of the aforementioned Autonomous Region. In the Management Plan, the location of a water purification plant does not comply with the rules of minimum distance established by Article 4 of Decree 2414/1961, by which the Annoying, Unhealthy, Harmful and Dangerous Activities Regulations are approved, (the “raminp”). The question was therefore to resolve the applicability of this Regulation in Navarra.
The Court considers, upholding the opinion established by the same Court in its sentence of April 1, 2004, that Article 4 of the raminp is connected with the title of environment established in Article 149.1.23 of the Spanish constitution, by which the raminp is considered a regulation of basic character. Consequently, the inapplicability of the raminp in Navarra's Autonomous Region requires that the regulation of the Autonomous Region has substituted the raminp, establishing, at least, a higher level of environmental protection.
Without having approved any regulation for substituting the raminp in the Autonomous Region of Navarra, in the conditions referred to above, the Supreme Court decided to declare illegal, Navarra's dispositions of the Management Plan for Special Waste that foresee the water purification plant at a distance less than two thousand metres from the nearest population nucleus which the raminp establishes.
Judgement of High Court of Justice of la Rioja (Contentious-Administrative Court) of February 18, 2005.
In this case, the resolution of the General Manager of Public Projects of the Housing, Public Works and Transport Department of the Government of La Rioja, which rejected the removal of the speed humps on road LR-250 in the locality of Villamediana de Iregua, near the actors house, was appealed.
The Court states there is evidence which proves that since the installation of the speed humps on the road (for the purposes of reducing the speed of the vehicles which passed through this area), the level of noise caused by the continuous traffic in the area where the speed humps are located, exceeds the permitted levels stipulated in the Regulations of Villamediana de Iregua, which serves as reference point; in that causing noise pollution, even though not endangering the health of the actor or his family, does in fact prevent the right to enjoy his home, and preventing the daily routine of personal and family life, according to the existing social uses at this time. The breach of this fundamental right is recognized in Article 18.2 of the Constitution and accepted by the Court.
This sentence again infers, as the Court itself mentions, the application of the doctrine established by the European Court of Human Rights (ECHR) which indicates that, in cases of particular gravity, certain environmental damage, even if not endangering a persons health’, can cause a violation of their right in respect of a private and familiar life, depriving them of the enjoyment of their home within the terms of Article 8.1 of the Rome Convention.
P O R T U G A L
LEGISLATION
Decree-Law 49/2005, of February 24.
This Decree-Law amends articles 1.º to 22.º and 24.º to 26.º of the Decree-Law 140/99, dated April 24th, which implements into the Portuguese legal system the Council Directive 79/409/CEE, dated April 2nd, concerning the wild birds preservation (Birds Directive) and the Council Directive 92/43/CEE, dated May 21st, concerning the natural habitats and wild fauna and flora preservation (Habitats Directive).
The statute aims to contribute to the conservation of the biodiversity of wild flora and fauna through the preservation and reestablishment of natural habitats, in a favourable state of conservation, protecting, managing and controlling the species, as well as regulating its development.
The objectives referred in the above paragraph are applicable having in mind the environmental, economic, social, cultural and scientific requisites, as well as local and regional specifications.
To promote the referred objectives, this statue sets out an environmental network, in an European perspective, called - REDE NATURA 2000, which includes the areas classified as special conservation area-SCA (“zona especial de conservação-ZEC”) - defined as a place of European importance in the national territory in which the necessary measures for the maintenance and reestablishment of the favourable conservation of the natural habitats or of the species populations to which the local is indicated is applicable” - and areas classified as special protection area-SPA (“zona de protecção especial-ZPE”) - defined as an area of European importance in which the necessary measures for the maintenance and reestablishment of the conservation status of the wild bird referred in Annex A-I and its habitats are applicable, as well as the migratory birds referred to in this Annex and that often exist in the national territory”.
The SCA depends on the prior approval of the European importance areas list issued by the competent European Union bodies, based on the national areas list and the procedure set out in the Council Directive 92/43/CEE, dated May 21st. The SPA classification is issued through regulation decree and includes the most appropriate territories, in number and extension, of the birds species in Annex A-I, as well as the migratory birds species from the aforementioned Annex and that often exists in the national territory.
Ministers Council Resolution 53/2005, dated of March 3rd, published in the Official Portuguese Gazette (“Diário da República”) 4, of March 3.
This resolution approves the National Plan for the Allocation of Greenhouse Gas Emission Allowances (“Plano Nacional para Atribuição de Licenças de Emissão” - PNALE) in relation to the 2005-2007 Period and defines the methodology and the criteria for the Allocation of Greenhouse Gas Emission Allowances to the installations located in the national territory which are in accordance with the definition contained in article 2.º, paragraph g) of Decree-Law 233/2004, dated December 14th, which defines “new installation” as the installation which develops one or more activities included in Annex I that, after notification to the NPAGHGEA Commission, has obtained a title or an updated title of greenhouse gas emission in the sequence of installation nature, functioning or enlargement changes.
The statue fixes at 114,48 Mt CO2 the global installations allowances of gas emission for the period between 2005 and 2007.
Ministers Council Resolution 59/2005, of January 13, published in the Official Portuguese Gazette (“Diário da República”) 47, of March 8.
Regarding the Kyoto Protocol, the European Union and its Member-States must perform their commitment together. Therefore, a global reduction limit of 8% of the greenhouse gases emission for the European Union was established, and, regarding the European agreement to divide responsibility, different limits have been defined for each Member-State.
Portugal undertook the compromise to limit the increase of its greenhouse gases emission within 27%, between 2008-2012, in relation to the 1990’s percentages.
To achieve this goal, Portugal approved a group of measures, joined into the National Plan to the Climate Changes-NPCC (“Plano Nacional para as Alterações Climáticas” - PNAC: 2004).
These NPCC Monitoring and Evaluation Programmes seek to gain, through a number of performance schedules, being effective and fulfilling the targets, knowledge of its impact on the greenhouse gases emission national balance. This information will allow the identification, on time, of the gaps and inefficiencies and its causes in the measures and political performances by the respective agents.
Besides the operational aspect, the NPCC Monitoring and Evaluation Programme establishes an institutional relationship with the various public and private entities who give the essential information to those involved in political monitoring and measure taking.
Ministers Council Resolution 68/2005, of January 13, published in the Official Journal Gazette (“Diário da República”) 54, of March 17.
The adequate legal and institutional framework establishment that supports the annual National System Inventory of Emissions by Resources and Removal by Drain of Atmospheric Contaminators preparation is a demonstration of the Portuguese State honouring its international commitments (namely, from a Community perspective) regarding the protection, control and maintenance of the environmental air quality and the obligations based on the Convention of the United Nations on Climatic Change and the Kyoto Protocol.
Therefore, the aim of the Portuguese Authorities is the creation of a credible system, which assures the transparency, coherence, compatibility, exhaustiveness and the strictness of the NSIERRDAC.
The establishment of an Inventory National System, compulsory within 2007, regarding article 5.1 of the Kyoto Protocol, is a crucial aspect of the policies against climatic change, considering that is based on the emissions inventory and on the forecasts based on selected data that the limits are calculated from, and that can consistently forecast the reduction efforts, the monitoring and its fulfilment.
Although only the obligations based on the United Nation Convention and the Kyoto Protocol require the establishment of a National System, which assures the preparation of the National System Inventory of Emissions by Resources and Removal by Drain of Atmospheric Contaminators out of control of the Montreal Protocol, with very well defined directives, it is considered that its legal and institutional framework should be enlarged to a national inventory of emissions by resources and removal by drainage of atmospheric contaminators, allowing, therefore, not only the reinforcement of the information quantity but also the maximization of human resources and materials for the carrying out of the inventory.
Decree-Law 72/2005, of March 18.
This Decree-Law implements into the Portuguese legal system the European Parliament and Council Directive 2003/53/CE, that amends the 26.º the Council Directive 76/769/CEE, in relation to the legislative statutes, regulations, and administrative Members-States harmonization, concerning the Restrictions on the Marketing and Use of Certain Dangerous Substances and Preparations.
The changes introduced are related to the marketing and use of nonylphenol, nonylphenol ethoxylate and cement, including chromium VI.
COURT RESOLUTIONS
Administrative High Court Sentence (AHCS) dated February 17, 2005.
The Environmental Protection Association X took action in the recognition of the right or legitimate interest against the Ministers Council, asking for the recognition of expiry of the classification of the Arrábida Natural Park, arguing that the referred classification had expired regarding the non approval of the Land Distribution Plan (“Plano de Ordenamento do Território”), which should be drafted within a period of 3 years counted from the published date of the Regulamentation Decree 23/98, dated October 14th, which had not occurred. Therefore, the referred Association argued for the expiry of Arrábida Natural Park classification and, consequently, the lack of protection for the entire area.
By the sentence, the action failed due to the plea delay (“excepção dilatória”) of the Applicant’s illegitimacy and, therefore, the defendant was acquitted (“absolvição do réu da instância”).
In the appeal instance, the AHCS considers that, in this case, the right to be recognised should be the Arrábida Natural Park classification, and the Author’s claim was for the protection of the property right of the land owners.
After being analysed the Author’s By-laws, the AHCS concludes that this association was specifically constituted for the environmental heritage protection. However, the Author’s intention was contrary to its social purpose, i.e., the Author was asking for the Natural Park classification expiry declaration. But, in its By-laws, environmental protection was referred to and not its lack of protection, which would be the result if the Author’s claim were to proceed.
The Author argued that he “had requested the recognition of Arrábida Natural Park classification expiry, not with the intention of protecting the owners of the land located in the Park area, but to promote the correct Arrábida ridge of mountains land distribution”. However, as the AHCS referred to, the Author was invoking the alleged rights and legitimate expectations to basis its claim.
Therefore, the AHCS concluded that “besides any consideration or appreciation in relation to the question, which is the subject of the claim”, the Author was not owner of the petitioned right and consequently will not obtain any immediate result if this action proceeds.
Administrative High Court Sentence (AHCS) dated February 9, 2005.
The Decree-Law 289/73, dated June 6th, which regulated “the authorities responsible administrative intervention in the parcelling operation”, prior to the parcelling request presentation, permitted the interested parties the power to “request information about the possibility of carry out the operations set out in that statue and its limits to the Municipality where the land is located” .With the Municipality decision about the parcelling viability request being favourable, the interested party has a period of one year counting from the date of the referred decision notification to “present the respective parcelling request, if not it will represent the decision about the information request expiry.
As the building where the interested party intended to carry out the parcelling in question, is partially located in the Ria Formosa Natural Park, whose limits are defined by the Decree-Law 373/87, dated December 9th, prior to the parcelling approval, should the Municipality consult the Director of the Park.
Regarding the Algarve Region Coordination Commission (“Comissão de Coordenação da Região do Algarve - CCRA”) and in relation to the parcelling in question after the compulsory consultation, informed the Municipality that the parcelling “had a unfavourable opinion (“parecer negativo”), considering that the building is located in the Natural Reserved Area, according to the Defined Area (“Zonamento”), according to paragraph 3 of articles 26.º of Decree-Law 373/87, dated December 9th, which created Ria Formosa Natural Park, established the prohibition, namely to the lotting of that area”, this negative opinion issued by CCRA was of a compulsory nature, considering that it was based on an legal limitation.
Regarding the sanction provided in article 65.º paragraph 1 of the Decree-Law 400/84, i.e., the nullity (“nulidade”) of the Municipality acts in relation to the lotting operation when not previous of the competent entities audience, as well as not in accordance with any of the respective compulsory opinions, as in the present situation, considering that the Municipality approved the referred plotting disregarding the compulsory CCRA opinion, which was negative, this act is null and void due to the referred article.
On the other hand, the administrative act which approved the lotting disregarding the Park Director compulsory audience, can never be legally performed, because it was ineffective.
Administrative High Court Sentence (AHCS) dated February 9, 2005.
While the Ecologic National Reserve Regime (“Regime da Reserva Ecológica Nacional”), under the Decree-Law 321/83, dated of July 5th and amended by the Decree-Law 93/90, dated March 19th is not defined, the licences request will be analysed according the transitory regime provided in article 17.º Decree-Law 93/90, in which the Municipality, after the receipt of the project, has to send it, immediately, to the Environmental and Natural Resources Ministry Regional Delegation (“Delegação Regional do Ministério do Ambiente e Recursos Naturais” - DRMARN), in order to obtain the approval of this entity approving the project in question. After that, and if the project respects all the legal procedures, the Municipality shall approve the project within 60 days from receipt of the project. Regarding the silence of the Municipality, the project will be considered approved.
The AHCS, by this sentence, discusses the question of the nature of the acts issued by the administrative authorities, to whom the law gives the possibility of intervening in the particular constructions licensing, in order to conclude if, even delay, as in this case, the non approval decision of the project issued by the DRMARN revokes its prior tacit refusal (“indeferimento tácito”) and, consequently, can justify the Municipality refusal decision.
The AHCS considers that in this case a truly administrative act, compulsory and binding exists, defining the legal situation of the authors, which, being damaging, is immediately appealable.
Therefore, and this decision being unfavourable, this express act reacting to the omission is consolidated into the legal system, notwithstanding the legal time limits. Consequently, the Municipality shall have to decide the request in accordance with this negative opinion.
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