The supreme court orders Marbella to determine the ownership of the roads in Puerto Banús

The case stems from legal action brought by restaurant and bar owners in Puerto Banús, who argued that the land on which their terraces stood could not be used by the company managing the iconic marina because it was public land.

The ruling, which has now become final, did not declare the roads to be of that nature, but it did order Marbella council to “initiate the administrative proceedings to legalise the relevant area designated for road use that is occupied by the terraces”. The council must therefore now commence those proceedings. The ruling is based on the revision proposal initially approved by the full council on 11 July 1996, when the council was led by Jesús Gil. At that plenary session, according to the judgement, it was agreed to “declare that the roads in Puerto Banús are for public use and in the public domain” and to “remove the barriers that were at that time preventing access to the roads”, in addition to approving the initiation of proceedings to “legalise the area”.

As the TSJA pointed out, the validity of that plenary resolution passed 30 years ago has the force of a final judgement, following an appeal by the company and the supreme court’s endorsement of it, so the final judgement orders the council to initiate the "procedure to legalise the area" that the plenary session approved but which the council never carried out. Furthermore, the TSJA said that there had been “tacit acceptance” of the roads, “as demonstrated by the fact that the town hall had granted planning permissions, has exercised urban planning enforcement powers, the roads have been opened to the public, and the assets have been affected by public use”.

Puerto José Banús SA said that "the final judgement obliges Marbella council to initiate administrative proceedings, but does not declare that the land is municipal property nor does it assign its management to the council". The final nature of the court ruling “does not imply that the courts have declared the land in question to be publicly or municipally owned, nor that the council must take over its management or the collection of fees for the occupation of the terraces”, because “the supreme court did not examine or rule on these issues”, the company added.

The company that manages the iconic marina pointed out that it is within this administrative procedure - which the council must now initiate - “that the ownership and legal status of the land, as well as the existing rights over it, must be analysed and resolved”. Therefore, they insisted, “the dispute has not been settled and none of the court rulings cited has declared the land to be municipal property”. Furthermore, the company said that in the civil eviction proceedings for non-payment brought in recent years in relation to these sites, “the courts have upheld Puerto Banús’s claims both at first instance and on appeal”.

The case that has reached the supreme court arose following an administrative appeal lodged in 2020 by one of the business owners after Marbella town hall had, by way of administrative silence, rejected their request to “incorporate the public roads in Sector PA-AN-21, known as Puerto Banús, into the municipal public heritage”.

The claim was dismissed at first instance by a ruling based on the fact that the roads were not part of the municipal assets. However, as the high court of justice pointed out, the initial court ruling "is not in accordance with the law". Everything must now be settled in the "administrative procedure to legalise the relevant area designated for roads and occupied by the terraces", which Marbella council must initiate now that the TSJA’s ruling has become final.