On 7 May 2009, Miquel Colom Canal responded to a series of questions concerning the legal and urban-planning situation of Planas del Rey.
His report covers several issues: the operation of the Urban Development Conservation Entity (EUCC), the role of Pratdip Town Council, water supply, waste collection, urban development works, guarantees deposited by some property owners, and the mechanisms that could be used to finance the works still outstanding.
There is, however, one essential point to keep in mind when reading the document today: the report sets out its author’s legal analysis and recommendations. It is not a judgment, an administrative decision, or a finding that in itself has the force of res judicata.
The background: a disagreement between the EUCC and the Town Council
The report responds, among other matters, to a resolution adopted by Pratdip’s Local Government Board on 6 March 2009.
In the first part, Miquel Colom recalls that conservation entities are urban-planning cooperation bodies linked to the municipal administration and that a representative of the Town Council must sit on them. In his view, appointing or replacing that representative is a matter for the Town Council rather than for the governing bodies of the EUCC.
But the core of the document concerns a much broader question: how far do the respective responsibilities of the EUCC and the Town Council extend in an old development such as Planas del Rey?
Miquel Colom challenges the Town Council’s position on the formal takeover of the development
According to the report, the Town Council considered that it was not required to assume responsibilities connected with the development until the urban development project had been fully completed and the works had been formally taken over to its satisfaction.
Miquel Colom rejects this interpretation. He considers that such reasoning might apply to a new development being created on land that had not yet been urbanised, but that, in his view, it did not fit the situation of Planas del Rey, an old development that had already been built up for several decades.
He also describes Planas del Rey as consolidated urban land and argues that the Town Council’s own conduct, for example when granting building permits, acknowledges that urban reality.
In simple terms: Miquel Colom does not analyse Planas as a new development still waiting to be created. He starts from the reality of an old, largely built-up development in which certain urban-planning obligations nevertheless remained incomplete.
In his view, the EUCC should already have disappeared in the 1990s
One of the most important passages in the report concerns the duration of the EUCC.
Miquel Colom relies on the seventh transitional provision of Legislative Decree 1/1990 to argue that conservation entities could not remain in existence beyond a period of five years.
He therefore concludes that the EUCC of Planas del Rey should have been dissolved and wound up in 1993 and that, from that point onwards, the Town Council should, according to his interpretation, have assumed responsibility for the development’s services.
This statement must be placed in context: in 2009, this is Miquel Colom’s legal analysis. It was not the result of a court ruling delivered that year.
The question of the EUCC’s lawful duration would eventually be brought before the courts several years later. It is therefore important not to present all the report’s conclusions as though they had already been judicially established in 2009.
In simple terms: the report provides an important legal argument against the indefinite continuation of the EUCC, but it does not, of course, itself dissolve the Entity.
His interpretation of the 2008 TSJC judgment goes further than the operative ruling
Miquel Colom also refers to the judgment of the High Court of Justice of Catalonia of 25 January 2008.
He interprets it as establishing that the EUCC had no authority to provide waste-collection and water-supply services and therefore considers that these services should be assumed by the Town Council.
However, our examination of the 2008 judgment requires an important qualification.
The TSJC had indeed held that water supply and waste collection did not form part of the urban development charges proper to a conservation entity and had annulled their inclusion in the contested urban development fees.
But the Court had also stated that other valid charges based on different public-law grounds might still exist. It therefore did not formulate a general prohibition on any EUCC involvement in those services as broadly as Miquel Colom interprets the judgment in 2009.
In simple terms: in 2009 Miquel Colom adopts a broad interpretation of the 2008 judgment. The ruling is an important part of his reasoning, but it is necessary to distinguish what the TSJC expressly decided from the conclusions the lawyer draws from it.
Water and waste: Miquel Colom assigns a central responsibility to the Town Council
The report also refers to local-government legislation and argues that the Town Council must guarantee minimum compulsory services throughout its municipal territory, including drinking-water supply and waste collection.
On this basis, combined with his analysis of the duration of the EUCC and of the 2008 judgment, Miquel Colom considers that Pratdip Town Council should provide these services in Planas del Rey.
He even recommends that, if the dispute continues, the EUCC itself should initiate proceedings seeking its dissolution in order to clarify the allocation of responsibilities once and for all.
At certain points, the tone of the report becomes particularly firm. Miquel Colom also raises the possibility of personal or financial liability on the part of municipal office-holders.
Again, this part should be understood for what it is: a legal warning expressed by the author of the report. It is not equivalent to a criminal or financial conviction handed down by a court.
The report also examines the works still to be completed
The second half of the document focuses more closely on the outstanding urban development works and on how they might be carried out and financed.
Miquel Colom considers that, at that time, the EUCC could carry out conservation and maintenance works but could not itself execute the urban development works that still remained outstanding.
He distinguishes between two implementation systems:
- the cooperation system, under which the Town Council carries out the works at the expense of the property owners;
- the compensation system, under which the owners may carry out the works through a Compensation Board, subject to the applicable urban-planning framework and the municipal agreement required to change the implementation system.
He also mentions the possibility of creating an Administrative Association of Taxpayers to enable organised participation by property owners in financing or carrying out the works, while noting that this formula would also involve municipal financial participation under the system he describes.
This passage is particularly interesting today because it shows that, as early as 2009, several different legal mechanisms were already being considered as possible ways out of the situation inherited from the old development.
What happens to the guarantees deposited by some property owners?
The report also answers several questions concerning guarantees required in connection with new construction.
According to Miquel Colom, where a guarantee has been deposited to secure a property owner’s future contribution to urban development works, it should normally be used to finance those works once they are carried out.
If the works are carried out by the Town Council, he considers it logical for the amount already deposited to be deducted from the urban development charges claimed from the owner concerned. If the works are carried out within the framework of a Compensation Board, the treatment of those guarantees must be adapted to that mechanism.
The report also states that such guarantees should not normally be returned until the urban development works have been completed, unless a different agreement has been reached with the Town Council.
Financing the works and obtaining subsidies
To finance the works, Miquel Colom explains that urban development charges can be established and collected under the management system that is adopted.
He also notes that the regulations allow deferrals or payment by instalments and considers that financing spread over several years may be possible.
Finally, he states that subsidy schemes may exist for financing urban development works, but that applications for such funding must be made by the Town Council, which also decides how the funds are allocated.
An important legal opinion, but not a court decision
Miquel Colom’s report is an important document for understanding the debate that existed in Planas del Rey in 2009.
It presents a highly critical analysis of the Town Council’s position, considers that the EUCC had remained in existence far beyond the period it should have done, and argues that several services should already have fallen directly within Pratdip’s responsibilities.
It also proposes several possible approaches for dealing with the works still outstanding and their financing.
But its legal status must remain clearly defined: it is a legal opinion. Some of its arguments would later be supported by subsequent decisions or developments, while others amount to broader interpretations than those found in the judgments on which the report relies.
The importance of the document therefore lies not in providing a definitive answer by itself, but in showing that by 2009 the central issues had already been clearly identified: the duration of the EUCC, municipal responsibilities, water, waste, urban development works and financing.
Jim – La Tribune de Planas
Translated summary of the key passages of the report
On the Town Council’s position
Miquel Colom rejects the idea that the Town Council could have no responsibility for the development before the works had been fully completed and formally taken over. In his view, such reasoning did not fit an old and largely built-up development such as Planas del Rey.
On the duration of the EUCC
He considers that the applicable rules limited conservation entities to a five-year duration and concludes that the EUCC should have been dissolved and wound up as early as 1993.
On the basis of this interpretation, he considers that the services of the development should have been assumed by the Town Council.
On water and waste
Miquel Colom interprets the TSJC judgment of 25 January 2008 as excluding those services from the EUCC’s responsibilities and therefore assigns responsibility for them to Pratdip Town Council.
However, this interpretation must be distinguished from the precise operative part of the 2008 judgment, which directly concerned the inclusion of water and waste charges in urban development fees.
On the dissolution of the EUCC
If the situation remained blocked, he recommends that the EUCC itself consider applying to the courts for its dissolution in order to clarify the allocation of responsibilities.
On urban development works
According to the report, the EUCC may carry out conservation works but, in the situation described, does not have the power to execute the remaining urban development works itself.
Under a cooperation system, the works are carried out by the Town Council at the property owners’ expense. Under a compensation system, they may be carried out by the owners organised through a Compensation Board, subject to the applicable urban-planning framework.
On guarantees
According to Miquel Colom, guarantees deposited to secure future urban development works should be used to finance those works and taken into account in the amounts subsequently claimed from the property owners concerned.
On financing
The report refers to the possibility of financing the works through urban development charges, potentially paid in instalments, as well as through subsidies for which the Town Council must apply.
