Demolition in Vera (Almeria)

Last Updated: 17 January 2008 19:30

The Regional Government of Andalusia has replied to the European Parliament's request for information about the demolition of a house in Vera (Almeria) belonging to a British family.
From www.teleprensa.net
The article is not dated and Teleprensa.net do not cite the author or source of the information. and translated from Spanish.
However, it would seem to be legitimate because the writer has carefully researched the legal issues.
Obviously the report states the position of the Regional Government and there are always at least two sides to every story.
Read the full article here in Spanish.

TRANSLATION FROM THE SPANISH TEXT
© Moraira-Info.com
 

The Government of Andalusia's reply from Almeria to the European Parliament regarding the demolition of a house belonging to a British family in Vera.

In order to reply to the request made by the Administrator of the Committee on Petitions of the European Parliament to the delegate of the Government of Andalusia in Brussels, a report is sought from the Directorate-General on the execution of a judgement ordering the demolition of a house in the town of Vera (Almeria), property of Messrs Prior.

According to the Spanish legal system the ownership of land does not carry the right to build freely, on the contrary, the right to build is subject to the provisions of urban management in such a way that town planning - determined by the classification and characteristics - determines what types of usage or change of usage of land are permitted, in accordance with public interest; thus stipulates article 7 of the Land Act (Act 8 / 2007 of 28 May) that the usage of land is controlled for use as specified by the planning authority. The entitlement to build is not assumed with ownership of land and this right is conditional to to all the rules and obligations stipulated by the planning authority. This principle is one of the most important manifestations of the social function of property ownership decreed by Article 33 of the 1978 Spanish Constitution.

In cases where the town and country planning permits building, the Spanish legal system provides for and instrument to ensure that architectural project complies with characteristics and usage of the local town and country planning regulations: that instrument is the building licence [licencia urbanistica] (Article 169 of Law 7/2002 dated December 7, Urban Management of Andalusia). In the legal system of Andalusia -following the statuary pattern - the exclusive jurisdiction over the granting of building licenses is granted to the local corporation (Article 171 of the Law on Urban Planning of Andalusia). The local corporation (town hall) should grant the license in accordance with the provisions of the legislation and the implementation of urban planning (section 172.4 of the Law on Urban Planning of Andalusia). As the Law courts have repeatedly judged, if the town and country planning regulations are not complied with, the license is null and void because the license does not confer any rights in itself, depends on the current regulations and may be denied or granted accordingly.

PLEASE NOTE: Teleprensa.net do not site the author or source of the information. The picture is a screen shot of part of the web page. Read the full article here in Spanish.

Furthermore, Spain is a democratic state (Article 1 of the Spanish Constitution) which implies, in particular, that public administrations should act in full compliment with the Law and (Article 103.1 of the Spanish Constitution). Therefore, the Municipality of Vera, in granting the licence to Messrs. Prior, had to submit to the existing legislation, namely the existing town and country planning.

Knowing that the Vera Town Hall had granted a license that could be illegal, the Government of Andalusia proceeded to challenge it before the courts to ensure compliance with the law of the autonomous region of Andalusia.

In the Spanish State, the Courts control the legality of administrative action (section 106.1 of the Spanish Constitution) and, that while the judges and magistrates administer justice as members of the independent judiciary, they are irremovable and subject only to Rule of Law (article 117.1 of the Spanish Constitution). Exercising this function, by judgement number 53/04, issued on April 19, 2004, the Judging Magistrate analysed the licence granted by the Town of Vera on June 25 in 2003 in favour of the Priors for the construction of a single-family rural house on the site "La Loma" de Vera in land classified as non-urban. The ruling declared the license invalid because it demonstrated the existence of a urban nucleus on land classified as not for urbanisation, having also been shown that the house was not designated for agricultural or similar purposes as specified by the law applicable to land not for urbanisation.

By the order of May 24 2004 of the Court of Almeria the judgement of April 19 2004 was declared confirmed and the Town of Vera was ordered to carry out the sentence.  The Ministry of Works and Transport of the Government of Andalusia reported non-compliance of the court order on 29 July 2005 and, on August 3 2005, the Ministry formally notified the Town Hall of Vera that, according to Article 118 of the Spanish Constitution, it must comply with the rulings and other decisions of the Judges and Courts, as well as to give collaboration required by them during the trial and the execution of the decisions.

Vera Town Hall, despite the request made by the Administration of the Andalusia, maintained it's position of not fulfilling the injunction to enforce the ruling, resulting in the Court dictating the requirement a second time, on March 7, 2006, and a maximum period of 10 days for execution under the threat of prosecution for disobedience.

The City Council of Vera still did not comply with the judgment and the same court made an order for the third time , dated March 9, 2007, in which it said: "As the Municipality of Vera has not having fulfilled the requirements agreed upon by this Court and Orders dated 24/1/06, 7/3/06 and 7/4/06, the court refers testimony of every act to the public prosecutor to decide if the facts constitute an offence of disobedience and, bearing in mind reluctance of the Vera City Council, make it know that the Autonomous Administration of Andalusia is permitted to carry out the demolition itself, pursuant to Article 108.1.a of the Jurisdictional Act.

Thus, given the municipal inactivity in the enforcement of the judgement, the court deemed appropriate enforcement of the same by the Administration of the Government of Andalusia, provided for in Article 108.1.a) of the Act 29 / 1998 of the Administrative Jurisdiction Litigation. In pursuance of the judgement, the Directorate General Inspection of Planning, Housing and Urban Development of the Ministry of Public Works and Transport issued a notification on December 17, 2007 (received by the Priors on December 18, 2007) of the date of the demolition, seeking their consent to enter the address for the purpose of executing the judgement and warning that, on January 9 2008, they should have vacated the building and removed the furniture. The Town Hall of Vera was also notified the date of execution of the judgement to on December 28 2007.

Mr. Prior informed the Directorate General of Inspection by fax on December 28 2007 that he did not authorize the entry into his home for the execution of the sentence and requested a stay of execution. The Directorate General informed Mr. Prior on January 2, 2008 that Autonomous Administration merely acted as an instrument for the legal execution of the sentence and lacked jurisdiction to decide on the issue. Finally, the Court issued an order on January 4 2008 authorizing the Administration of the Andalusia to enter the home of Mr. Prior in order to execute the judgement.

On January 9, at 11:00 the demolition should have started but, at the request of the lawyer of the Priors who had not removed their furniture, the demolition was delayed until 15'30 hours. By which time the furniture had been removed. Work on the execution of the court order was completed by Friday, January 11, and the Inspectors reported to the court accrediting compliance by the Government of Andalusia of the require to comply with the Judgement.

Finally it should be noted, that in the Spanish legal system, many mechanisms are provided for individuals who suffer damage or injury caused by third parties, being private persons or public entities, by exercising various legal actions that will allow them to win compensation . Among them, it is stressed, is the right of individuals to be compensated for the functioning of public administrations in the manner provided by Article 139 and onwards of Law 30/1992 of the Regimen of Public Administrations and the Common Administrative Procedure. In implementation of that provision, if the Priors consider that they have suffered losses or damages because of the invalid license, they may exercise the corresponding liability action against the Municipality of Vera for having granted the license declared invalid by the final judgement of the Court.

END OF TRANSLATION
© 2008 Moraira-Info.com

Links to other articles about the Vera (Almeria) Demolition.

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