01 Mar Algarrobico
Although the Superior Court of Justice of Andalusia (Granada) that in its STSJA of 07/22/2021, estimated the sentence to the City Council of Carboneras to proceed to the ex officio review and annulment of said license, the judgment of the Supreme Court dated 12/19/2022, does not offer an enlightening picture.
And it is that STS 4847/2022, textually is expressed in the following terms: “if requested the ex officio review of an act that is considered null and void and the Administration does not agree to said procedure, the Courts can declare directly in their judgments the nullity of the act or they have to order the retroaction to the administrative phase so that the Administration can rule previously, ignoring the processing of the mandatory procedure” and explains “that the jurisprudence has not adopted a general rule, but must be to the circumstances of the specific case that is prosecuted”.
Thus, the Supreme Court establishes jurisprudential doctrine, concluding that it will have to be based on the specific circumstances of each case, to know if the nullity of the act can be declared directly in a judgment or if it should be limited to ordering the actions to be rolled back so that it is the own administration that processes and resolves the ex officio review procedure of null acts, included in art. 106 LPAC.
Although the reality of STS 4847/2022, is the validity of the works permit granted for the construction of the hotel on the Algarrobico beach, back in 2003, which without regulatory support as a result of a long legal battle, still exists in the world of law.