Los efectos de la nulidad en cascada de los planes de desarrollo sobre los instrumentos de gestión urbanística directamente impugnados(A propósito de la sentencia del Tribunal Supremo, Sala Tercera, de 29 de abril de 2021; recurso 218/2020)

Abstract

The judgment of the Supreme Court of April 29, 2021 confirms a doctrine already established by the High Court itself in a previous judicial resolution (of March 4, 2020, appeal 2560/2017) and by which the so-called “effect in cascade” of the nullity of a General Plan not only affects the development plans, whether or not they have been challenged, but also the urban management instruments and other administrative acts that have been - this time - directly challenged at headquarters administrative contentious jurisdiction, declaring them null and void as they do not enjoy the necessary regulatory coverage. This judicial decision, with the ex-tunc effects that it entails, produces many legal and economic consequences for urban developers and urban planning agents who, for example, invest in cooperation and compensation action systems to develop areas of action that, Ultimately, they are declared null and void, for the most part as a consequence of the commission of procedural defects in the general planning instrument that serves as coverage; leading both the third-party owners in good faith of the resulting parcels created to an out-of-order situation that prevents the full building use of them, as well as the consequent affectation of all the registry entries that have occurred as a result of the nullity of the urban management instrument directly challenged. This judicial decision to confirm the ex tunc effects of the nullity of the planning instruments and its negative impact on the urban management instruments and, in general, the acts dictated in their development, deserves a careful analysis due to the devastating damages in economic matters that is caused with these doctrines that so deeply to the principle of legal certainty. Especially when we compare this decision with other pronouncements of the Supreme Court itself -and also of the Constitutional-, in other material areas (in relation to regulatory provisions and, even, with respect to Laws), in which a much less restrictive dogma has been applied In accordance with the provisions of comparative law (eg, the French Urban Code), allow the suspension of the effects of the contested instrument due to nullity of full right until the formal defect that has caused such declaration is remedied, in order to guarantee fundamental principles of all those affected by the eventual declaration of nullity.