I. Introduction: The subject of the reform operated by Law 1/2019
The last 7th of February of 2019 appeared published in the Official Journal of the Generalitat Valenciana the Law 1/2019, of 5 February, of the Generalitat, of modification of the Law 5/2014, of 25 of July, of planning of the Territory, urbanism and landscape of the Comunitat Valencian (EDL 2019/2575), which, in accordance with the provisions of its Disp. Single End, entered into force the next day, on February 8th.
The aim of this study will be to analyse the innovations operated by this autonomous standard, as opposed to the previous legal regime.
In this sense, we must start from the premise that, once it entered into force Law 5/2014, of July 25, of land planning, urbanism and landscape of the Comunitat Valenciana-LOTUP-(EDL 2014/119309), autonomic norm directed to articulate the legal regime of the Ordination of the Valencian territory, of the urban activity and of the use of the soil for its rational use, shortly after the state legislator approved the current RDLeg 7/2015, of 30 October, by which approves the recast text of the Law of Soil and Urban Rehabilitation-TRLSRU-(EDL 2015/188203), under the authorization conferred by the art. 149.1.18 of the Spanish Constitution CE-(EDL 1978/3879).
The TRLSRU regulated, from the own perspective in which the State can carry out interference in the subject matter, the basic conditions to be guaranteed, as indicated in article 1 of that legal text:
A. Equality in the exercise of the rights and in the fulfilment of the constitutional duties, related to the land.
B. A sustainable, competitive and efficient development of the urban environment, by means of the impulse and the promotion of the actions that lead to the rehabilitation of the buildings and to the regeneration and renovation of the existing urban tissues, when they are necessary for To ensure the citizens an adequate quality of life and the effectiveness of their right to enjoy decent and adequate housing.
Likewise, the TRLSRU regulates the economic and environmental bases of the legal system of the soil, its valuation and the patrimonial responsibility of the Public Administrations in the matter.
For all this, it was considered necessary to carry out a LOTUP modification in order to adapt it to the forecasts of the current normative framework, as well as to the socioeconomic reality of the moment, so that we can summarize the main novelties operated by the Law 1/2019 In the LOTUP as follows:
A.Introduction of inclusive criteria in the management of the Territory, on the level of equality of men and women, as well as of attention to the needs of social groups and family structures.
B. Modification of urban development standards and percentage of public urban development.
C. Forecast of a specific regime for urban regeneration actions.
D. Suppression of the figure of strategic territorial actions and regulation of sustainable strategic investment projects.
C. to Promote the direct management of programmes of action in certain urban planning activities.
F. Modification of the execution order regime.
Regulation of reversion of reparcelling or “reverse reparcelling”.
Amendment of the licensing regime and responsible declarations.
Changes in the soil regime not urbanizabl
To this end, art. 1 of the aforementioned Law 1/2019 tells us in its paragraph 1st that the arts are amended. 1, 2, 4, 5, 6, 7, 9, 13, 14, 16, 17, 21, 24, 25, 29, 32, 33, 34, 35, 36, 37, 42, 43, 44, 45, 46, 48, 49, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 69, 70, 71, 72, 73 , 75, 76, 77, 79, 81, 82, 85, 88, 92, 93, 96, 99, 103, 104, 106, 110, 111, 113, 114, 117, 118, 121, 122, 124, 125, 127, 130, 131, 132, 143, 144, 147, 149, 151, 152, 153, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169 , 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 183, 184, 185, 186, 187, 190, 193, 194, 195, 196, 197, 200, 201, 202, 203, 204, 205, 206, 207, 208, 210, 211, 212, 213, 214, 215, 216, 221, 222, 223, 225, 236, 238, 241 and 255 LOTUP , as well as renumbered and refunded several arts, while modifying the title of Chapter IV of Book I LOTUP and the title of Chapter III of Title IV of Book II LOTUP; In addition, paragraph 1 (2) states that the second and seventh transitional provisions are amended; Annexes I, IV and VI, and paragraphs I and III of the Preamble LOTUP in the terms set out in the annex to the aforementioned Act 1/2019.
In Addition, paragraph 2 of article 1 of Law 1/2019 tells us that the arts are added. 3, 49 bis, 76 bis, 86 bis, 180 bis, 187 bis, 187 ter, 187, 187 quinquies and 211 bis to the LOTUP, as well as the additional fourth, fifth, sixth, seventh and eighth provisions and five others that will be the ninth, tenth, eleventh, twelfth and thirteenth , the transitional provision of the thirteenth and three that will be the fourteenth, fifteenth and sixteenth, the final disposition third and annex X and three others which will be the XI, XII and XIII to the LOTUP, in the terms set out in the annex to the aforementioned Law 1/201 9, whereas paragraph 3 of that article 1 indicates that the spelling, grammatical and referral errors are corrected to other precepts of the arts. 54, 76, 96, 106, 131 and annex I.
Let’s Go to analyze the main novelties, attending to the nature of the same.
II. On Urban Planning
A. On inclusive Issues
Article 1 of the Law 1/2019 part with a declaration of intent, in anticipating in the new wording of article 1 LOTUP that the object of this rule is the regulation of the management of Valencian Territory, the urban activity, the rational use of soil and the conservation of the natural environment, with the novelty of influencing that this regulation should be carried out from a gender and inclusive perspective, an idea in which it influences several arts., such as the new wording of art. 7.2, art. 13, 17.6. b) , 21.1. a), 34. 1. a), 48. f), first subparagraph of paragraph III. 1.1 of annex IV, the new Annex X, and, in particular, the novel Annex XII LOTUP, which lays down the criteria and rules for gender-based planning.
The provision of gender-perspective criteria in planning, while a laudable initiative, opens the door to the interesting debate on the issue of gender impact reports on planning instrument processing.
Thus, it is to be emphasized that the recent jurisprudence had been affecting that the omission of the report of gender impact in the processing of planning instruments implied a vice of nullity of full right, as is the Judgement of the TS of 6 of October of 2015 ( EDJ 2015/192713) which argues that:
The latter is as evident as the non-existence of the gender impact report, but what we have to consider is whether or not such a report was mandatory as a required procedure in the elaboration and approval of the contested Territory’s planning Plan, which Objectives it is, according to its own confession of the Administration of the Plan, the distribution of equipment and services of Supramunicipal character, the ordering and compatibility of uses, among others.
We Must start from the fact that the approval of the Ordination Plan in question by Decree of the Governing Council of the Junta de Andalucía 142/2006, of 18 July, took place when the Law of the Parliament of Andalusia 18/2003, of 29 December , had established, in its article 139.1, that all draft laws and regulations adopted by the Governing Council should take into account effectively the object of gender equality and, to that end, in the processing of the aforementioned provisions , an assessment report of the impact on the basis of gender of the content of the same, precept developed by the Decree of the Council of Government of the Junta de Andalucía 93/2004, of 9 March, whose article 2 establishes that the fulfillment of the provided for in this standard will affect all bills and regulations whose approval corresponds to the Governing Council, be regulated in their arts. 3 and 4, the competent body for issuing it and its contents, a provision which entered into force the day following its publication in the Official Gazette of the Junta de Andalucía of 12 March 2004, so that, when it is processed and approved the planning Plan of the Territory that we occupied, was obliged to comply.
In Addition, Law 30/2003, of 13 October, amended article 24 of the Law of the Government 50/1997 to introduce in paragraph 1 (b)) The demand for a gender impact report in the procedure for the elaboration of regulations, and, although Law 6/1983 , of 21 July, of the Government and the Administration of the Autonomous Community of Andalusia, does not contain an equivalent precept, in its Transitory Disposition 2 establishes that it is of application the legislation of the State, extra or analogue, for the juridical system Procedural, so that both by referral of this autonomous Law to the legislation of the State as expressed by legal and regulatory provision of the autonomous legal system, when the Governing Council of the Junta de Andalucía approves the Plan of Land Management, subject to litigation followed at the instance, a gender impact assessment report should have been issued in the procedure for its elaboration.
The reference to the regulations made in the aforementioned rules is, given the preamble thereof, in the broad sense of administrative provisions, emanating from the Governing Council, which make up the legal system, as defined by the doctrine Jurisprudence in differentiating it from administrative acts, so, in the already remote judgment dated December 1, 1986 (…), followed by others until the dates of December 19, 2007 (…), 11 May 2011 (…) It was stated that “It Is therefore , the procedure an important limit to the exercise of the regulatory authority-of planning, in what now matters-established precisely to ensure the legality, success and opportunity “of the general provisions-Article 129 of the Law of Administrative Procedure-. This intensification of the importance of the procedural requirement is justified because the Regulations-here the Plans-are integrated into the legal System, with virtuality therefore to determine a general conformation of the coexistence through the Plurality of its applications ‘.
In the procedure of elaboration and approval of the Plan of Ordination of the Territory questioned, the own autonomous Administration which approves it admits that it is in fulfillment of a norm with rank of law and declares, time and again, that the acted one conforms to the provisions In article 24 of Law 50/1997, of 27 November, of the Government, which recognises the regulatory nature of the procedure established for its approval, inter alia, the issuance of the gender impact assessment report required by the Legal and regulatory provisions to which we have referred. “
In the same line are pronounced the sentences of the TSJ Madrid 322/2017, of 19 of April (EDJ 2017/79155), and 593/2018, of 17 of July (EDJ 2018/540766), in which also affects, in the referral to the Judgement of the TS of 4 of July of 2016 (EDJ 2016/105709) , arguing, on the other hand, that:
“The reference to the regulations made in the aforementioned standards is, given the preamble thereto, in the broad sense of administrative provisions, emanating from the Governing Council, which make up the legal system, as defined by the doctrine Jurisprudential in differentiating it from the administrative acts, so that (…) is therefore the procedure an important limit to the exercise of the regulatory authority-of planning, in what now matters-established precisely to ensure the legality, Success and opportunity of the general provisions (…). This intensification of the importance of the procedural requirement is justified because the Regulations-here the Plans-are integrated into the legal System, with virtuality therefore to determine a general conformation of the coexistence through the Plurality of its applications. “
In spite of this positioning, the Sentence of the TS of December 10, 2018 (EDJ 2018/651698), was unmarked of this positioning, by pointing out that
We Must begin by pointing out that, despite the regulatory dispersion in the matter, the gender impact report is regulated in state law, in Law 30/2003 of 13 October, on measures to incorporate gender impact assessment into The normative provisions that the Government elaborates, which meant to give the arts a new wording. 22.2 and 24.1. b) of the Government Law 50/1997. In the Organic Law 3/2007, of 22 of March, for the effective equality of women and men, as well as in the Royal Decree 1083/2009, of 3 of July, by which regulates the memory of the analysis of the normative impact and which must contain as one of its sections the impact by reason D and gender. In identical terms, article 26.3. F is currently expressed in Law 40/2015, of 1 October, on the legal system of the public sector, concerning the procedure for the elaboration of standards with the rank of law and regulations, to which effect the gender impact report Analyse and assess the results that can be followed from the approval of the standard (drafts of law, drafts of Royal Legislative Decree and regulations) from the perspective of the elimination of inequalities and their contribution to the Achieving the objectives of equal opportunities and treatment between women and men, based on the indicators of the situation of departure, forecasting of results and impact forecasting.
(…) Well said, it is equally true that article 24 of the Government’s Law constrains its scope to the statutory authority of the Government of the Nation, so that it cannot be considered as a common administrative procedure for the purposes of Article 149.1.18 of the EC which respects the specialties derived from the organization itself of the Autonomous Communities, and precisely for that reason, neither, and as erroneously understood the judgement of instance, it can constitute supplementary law according to the provided for in article 149.3 of the Constitution, because as already stated in Law 5/1983, of the Council of the Autonomous Community of Valencia in article 43 it contains a complete regulation of the procedure of elaboration of the regulatory provisions which makes Unnecessary by superfluous that supletoriedad of the state law, without contradicting this assertion the invocation of the second final disposition of the Law 5/1983 which refers precisely to the assumption of the existence of a loophole in the autonomous regulation, unique assumption that it would be possible in accordance with the doctrine of the Constitutional Court judgments 118/1996, and 61/. 997, the supplementary application of the law of the State ‘.
In conclusion, the SUPLETORIEDAD clause that is invoked to apply article 24 of the Government Law in relation to the elaboration of the Management Plan, and therefore to demand the gender impact report as an essential element for the approval of said Urban instrument, it does not have support in the current jurisprudence which analyses the indicated principle.
(…) Consequently and independently of the specific procedures of elaboration of the plans of urbanism in each one of the autonomous Laws, which can or not incorporate