The mammoth decree law of administrative simplification of the Junta de Andalucía, validated in Parliament last week, opens the door wide for private entities to participate decisively in the processing of urban projects by preparing reports, certificates or minutes with “ comparable effects” to those that until now only municipal officials can issue.
Following a contract with the city council, “certifying urban planning entities” will be able to verify if an individual has provided all the documents to obtain a license, if the project and documentation comply with the regulations, or inspect the urban planning works, among other tasks. To do so, they must first have been hired by the city councils, which will have to regulate the extent of their participation through an ordinance.
This legal reform, which affects the Law to Promote the Sustainability of the Territory of Andalusia (known as LISTA) and its development regulations, was already discarded by the Andalusian Government itself when it approved the first version of the LISTA, in December 2021. .
Then it had the express rejection of the Advisory Council, which warned in a non-binding report that the participation of companies in the urban planning process – which implies the transfer in the exercise of powers of the Administration – can invade a territory reserved by law to the officials.
The idea has not been well received by the Supreme Court either, which in a recent ruling stressed that non-official personnel could only be used as a “punctual solution to an extraordinary situation.”
Two years later, the Andalusian Government has recovered the idea of delegating the supervision of urban projects to private companies, discarded for the Land Law, and has inserted it with another wording in the fourth decree law of administrative simplification. The controversial norm modifies 176 different norms by emergency means, after the PP’s frontal refusal to process it as a bill to avoid the amendments of the opposition and the unions.
In this period of time, the Board has incorporated nuances, but doubts remain: before the approval of the decree, the lawyer of the Board of Andalusia issued a legal report saying that the proposal could “be improved in its wording and justification.” and warned of the risk of “leading to the total privatization of the urban planning advisory function to city councils.”
The Councilor for Urban Planning of the Malaga City Council, Carmen Casero (PP) announced this week that her department is already working on modifying the ordinance to accommodate the collaboration of certifying entities and professional associations. To do this, she has reserved 150,000 euros that would cover agreements and contracts with companies and associations of architects, technical architects and engineers.
“Public-private collaboration”
The simplification decree, in force since February 17, modifies two articles of the LISTA and another of the Regulations to incorporate the so-called “public-private collaboration” into the urban planning process, a formula that involves the participation of companies in spheres of decision and action. public. Professional associations could already replace the work carried out by public officials in certain cases, but the associations are public law entities. Now, the range opens even further and allows the private sector to enter.
In accordance with the new article 9 of the LIST, administrations with urban and territorial jurisdiction (generally city councils) may hire these “certifying urban planning entities” (previously registered as such) to carry out “tasks of an instrumental, material, technical, auxiliary or support actions for verification, inspection and control of compliance with urban planning regulations.
The reports, certificates or minutes of these entities will be incorporated into the administrative file and “will be taken into account in the resolution of the procedures,” adds the text, which then contemplates that they can replace the report of an official with “comparable effects.” if so provided for by municipal ordinance.
For its part, the new article 140.3 specifies, for the specific case of the issuance of urban planning licenses, that the report of the private entity or professional association will have “comparable effects” to the technical report of the official who certifies whether the license complies with regulations, if provided for in the municipal ordinance.
The Board’s lawyer questions its legality
The new rule justifies the incorporation of companies into the complex and cumbersome world of urban planning licenses for private companies due to the “lack of personal and technical resources suffered by many City Councils.” And it establishes safeguards: its intervention will not imply the exercise of public powers and cannot be mandatory: that is, the citizen can always contact the municipal technicians.
However, this does not dispel the doubts about its legality, which the Andalusian Government’s own lawyer expressed in his previous report. To avoid collision with the exercise of public powers, he proposed something very specific: that “it be clarified in article 140.4” that the ordinances cannot oblige the request of these reports. And he warned: the risk if this is not done is that the administrations could do without their technical services, supplant the advice of national authorities (such as the secretary) or “the functions that are legally reserved for officials.” The simplification decree law picks up the gauntlet, but it does so inaccurately, in a different section of the norm.
In that report, the lawyer recalled that the Advisory Council already warned in April 2021 that the intention to give awards to private companies in the urban planning field conflicted with the reservation of the exercise of public powers in favor of officials. The Consultative rejected that companies could control the documents of a responsible declaration.
Supreme Court: only as a “punctual solution”
The question of what administrations can outsource has recently been addressed to the Supreme Court, which in a ruling from April 2023 concluded that the intervention of non-official personnel preparing reports and examining and grading files is only possible as a “punctual solution to an extraordinary situation.” , to a purely circumstantial need.”
The lawyer, who echoes the ruling, warns that the granting of urban planning licenses is not a “temporary necessity” but rather an ordinary activity of the municipalities that must be integrated into their organization and have the necessary resources. And he makes a warning: “Article 140.4 cannot lead to the total privatization of the urban planning advisory function to city councils, via municipal ordinance.”
This new scheme of urban planning files may generate anomalous situations, such as the application to private companies of the incompatibilities regime designed for administrative bodies and public officials. Thus, the new regulations require them to refrain from reporting “when any of the causes of abstention and recusal provided for in the legislation regarding the legal regime of the public sector occur.”
If it were concluded that private companies have carried out urban planning tasks that imply the exercise of non-delegable public powers, the consequence would be the radical nullity of what was done. A hypothetical legal tangle even more complicated than the procedures that are intended to be simplified. Furthermore, opening this door to the participation of private entities may have implications for aspects with constitutional relevance such as the inviolability of the home (would individuals be obliged to allow the inspection of a private entity?) or the exaction of public prices.
The left-wing opposition has already warned that it will appeal the Decree before the Constitutional Court, pointing among other aspects to this “simplification” of urban planning procedures. For the PSOE, it is a new attempt to “strain” a reform that was rejected by the Advisory Council. Por Andalucía and Adelante Andalucía denounce that, with this addition, critical infrastructures such as a private nursing home or a private vocational training institute can be opened “only with the administrative silence of the Board and a responsible declaration.”
Source: www.eldiario.es
