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Urban planning and housing limitation for tourist use.
Judgment of the Supreme Court, of June 2, 2021 – Chamber Contentious-Administrative.
Article continuation of:
📚 La fuerza expansiva de la normativa urbanística y sus instrumentos de planeamiento.
In a cassation appeal filed by an «Association of Tourist Apartments», against judgment of the Contentious-Administrative Chamber of a Superior Court of Justice, in turn, on the City Council Agreement, by which the Special Urban Plan for the regulation of Housing for Tourist Use in the city, the Supreme Court addresses an issue that raises objective cassational interest for the formation of jurisprudence, consisting of determining whether a regulation such as that contemplated in the Special Urban Plan, is, or not, contrary to the provisions of Directive 2006/123 / CE and article 9.2 of Law 17/2009, of November 23, on free access to service activities and their exercise; and if it is proportionate and its need is sufficiently justified by the safeguarding of some compelling reason of general interest from among those included in Law 17/2009.
The reasons alleged by the appellant to justify the violation of the articles of the Directive are related to the imposition of the following requirements and limits for the exercise of said activity: a maximum density of houses for tourist use limited to existing ones; the decrease in the number of accommodation facilities for tourist use in certain specific areas; the prohibition of introducing housing for tourist use in entities with housing uses and the setting of a specific index of maximum density of housing for tourist use per block in certain areas.
The controversial question focuses on determining whether the regulation in the urban field violates the European regulations and domestic law that has been cited. And if in view of these regulatory requirements, the imposition of requirements that limit access to the activity of VUT, based on discrimination for reasons of general interest and proportionality for the protection of that interest, requires a special and specific motivation in every assumption.
The Chamber brings up the doctrine on the limitations to the freedom of establishment and provision of services and its mandatory justification; and it pronounces on the requirements that may condition a service activity or its exercise and the need for them to be justified and provided in relation to an «overriding reason of general interest»; Not without first highlighting that those limitations are imposed in a planning instrument with a specific control regime linked to obtaining urban planning licenses.
Regarding the double decision -submission to authorization and authorization requirements-, the Chamber reaches the following conclusion: “when the regulation of the freedom of establishment of services is carried out directly, as it happens here, by urban planning, the application of the general regulations on the freedom to provide services that are imposed both in the Directive and in the national law, has the peculiarity that it must be the same planning that must contain the requirements that are imposed, both to submit the activity to the previous administrative authorization, as the requirements for the granting of said authorizations”.
Likewise, it considers legitimate the discrimination that is made, from a strictly urban point of view, in the regulation of the uses of buildings and, in particular, discrimination within residential use, the specific one that is imposed on these VUT. Moreover, the planner can and must carry out that ordering of specific uses, and what cannot be claimed is that that ordering has a different regime from the other planning determinations. Special Plan determinations that must be motivated in memory, since urban planning plans cannot contain a specific motivation for all the determinations they contain.
Ultimately, the sentence responds to the cassational question: “an urban planning plan is a legitimate instrument to subject the exercise of a VUT activity to prior administrative authorization, and that the precepts of the aforementioned Plan that condition the granting of such authorization it is proportionate and is sufficiently justified by the safeguarding of the overriding reason for the general interest of facilitating the existence of housing that can be rented for the residence of citizens”.
In this case, we are not faced with requirements that affect access to a service activity or its exercise, but with requirements related to spatial planning or / and urban planning, which, although they do not specifically affect the service activity, must be respected by providers in the exercise of their economic activity. The municipal planner has sufficiently motivated that we find compelling reasons of general interest, and that the legal system does not oppose that a service activity is subject to the respect of certain limits, provided that the conditions of non-discrimination are met, necessity and proportionality.
InterJuez.es 