Top court orders Malaga city council to compensate building owners for not granting them a licence

The inaction of Malaga's council in revising and updating the urban development plan for the city's historic centre, which is obsolete after being approved 35 years ago, has prompted judicial consequences. A ruling by the High Court of Justice of Andalucía (TSJA) issued in May denounced the city hall for not having yet adapted the special plan for the protection and interior reform (Pepri) of the city centre of Malaga to the 2007 Andalusian historical heritage law, despite the fact that the heart of the city is registered as an asset of cultural interest since 2012.

The ruling of the TSJA came as a result of the complaint filed by the owners of the building at Calle Refino 17, who have not been able to obtain planning permission to demolish it and construct a new building with a ground floor plus three floors and a basement for ten tourist flats due to the disparity of criteria between the town hall and the regional government.

As SUR reported in 2022, this conflict between the local and regional administrations has blocked several urban development projects in the centre, due to the alignments that should correspond to each of the plots into which the urban fabric is divided. The arguments between the two institutions date back 13 years, when the old town was registered as a heritage site in the general catalogue of Andalusian historical heritage.

This inscription meant that the Pepri Centro, approved in 1989, had to adapt to the Andalusian historical heritage law, but this has not yet been done. This is where the problem arises. The heritage law states that "the alignments, gradients and existing plots" in the urban fabric of a historic site must be maintained, "exceptionally allowing urban remodelling" that modifies these parameters as long as it improves or avoids "degrading uses".

This provision contradicts the regulations of the Pepri Centro de Málaga, which, in relation to the conservation of the urban structure, states that the alignments "shall be those consolidated by the existing buildings, with the exception of those indicated in the plans". The consequence of this legal conflict is that there are several building permit applications which involve a modification of the alignments of the urban fabric and which, despite being permitted by the Pepri Centro, are blocked by a negative report from the regional ministry of culture. If the Junta's rules are followed, then they contravene those of the urban planning department.

This conflict between administrations affected the project to build tourist flats at Calle Refino 17 - an action that involved the demolition of an unprotected building that stands out from the line that most of the rest of the buildings in the street follow. The new buildings have been set back, as stipulated in the Pepri. According to the urban planning department, the same could be done, but the Junta's criterion is that the footprint of the building that was to be demolished should be respected.

Faced with this situation of not obtaining a response from the urban planning department to the request for the building permit (requested in 2017), the company that owns the building filed a legal appeal against the city council and the regional ministry of culture. The TSJA's ruling agrees to financially compensate these private parties for the lack of response.

Although the economic amount is not high - 24,399 euros for the income that they could have generated from the rental of the flats from September 2021, when they filed the administrative claim, until February 2022, when they filed the lawsuit - it is significant that the court ruling admits that there has been a loss for these private individuals.

The TSJA ruling highlighted the "omissive conduct of the city council, which delayed the granting of the licence", without resolving it. According to the High Court, the town hall "should have proceeded to the adaptation of the regulations of the Pepri Centro to the regional regulations". For this reason, the "unjustified delay in granting the licence" is "uniquely demandable" from the city council and places all the responsibility and the duty to compensate the owners of the building "for not observing" the regulations of the 2007 heritage law on the local council.

The private parties also claimed 242,157 euros in compensation (46,985 euros for the management of the project and 195,172 euros for the loss of value of the building), but the TSJA has rejected these compensation concepts. However, it has ordered the town hall to pay the company 4,066 euros per month from 13 September 2021 to 25 March 2022 for blocking a project that has not been developed due to the legal conflict between the urban planning department and the Junta. Sources close to the property have stated that, at present, the private owners are considering the possibility of refurbishing the building, given the impossibility of demolishing it.

The municipal government team has told SUR that "shortly" the contract for an external team of technicians to review and update the Pepri Centro will be put in place. A task which, according to what the urban planning department has been arguing, was held up by the legal appeal filed by the architects' association against the review of the catalogue of protected buildings that was activated in 2018 and which it finally lost. For the new Pepri Centro, 150,000 euros have been reserved this year, plus another of 120,000 for the review of the catalogue of protections, which has not been carried out either.

On the other hand, municipal sources have not clarified whether the urban planning department is going to appeal in cassation to the Supreme Court against the ruling of the TSJA in relation to the construction work at Calle Refino 17.