The Spain´s Supreme Court sentence STS, Sala III, Sec. 5ª, nº 1470/2022, of 10 November 2022 (RC 110/2022), has just established case law on the issue of permitted works in buildings in a situation assimilated to out-of-planning and declares unlawful a doctrine of the TSJ of Madrid (Madrid High Court of Justice) that was consolidated, upholding our appeal in cassation and also a contentious-administrative appeal.
Ramón y Cajal Abogados represented the claimant, Elroan Gestión de Inversiones Inmobiliarias, against the Alcobendas City Hall, with partner Federico Lara González, along with Joaquín García Bernaldo de Quirós, from the firm´s Land Planning, Urban Planning and Environment team.
According to Federico Lara, from now on, the carrying out of unauthorised works in buildings assimilated to out-of-planning status does not imply (as the Madrid Supreme Court said) a tacit waiver of the power obtained by prescription nor, therefore, a loss of the expiry of the time limit for the exercise of the action for the reestablishment of urban planning legality. The power to restore the violated physical reality can only be executed with respect to the new works carried out that go beyond mere conservation, ornament, safety or health, but respecting the works with respect to which said power had expired and the use that is being carried out in them, as long as it is permitted by the applicable planning.
