La no exigibilidad del trámite de consulta pública previa a los instrumentos de ordenación urbanística. A propósito de la sentencia del Tribunal Supremo 133/2023, de 6 de febrero de 2023 (recurso 1337/2022)

Identifier:  imarina:9444204

Handle: https://hdl.handle.net/20.500.11797/imarina9444204

Authors:  Casado Casado, Lucía

Abstract:
Spanish Law 39/2015 of 1 October on common administrative procedures for public administrations (LPACAP) introduces Title VI on legislative initiative and the authority to adopt regulations. In Section 133, it imposes a mandatory preliminary public consultation procedure as part of the process for drafting legislation with regulatory status, a procedure that enhances citizen participation by ensuring public involvement at a very early stage. Although the first part of Section 133(1) and the first paragraph of Section 133(4) of the LPACAP are fundamentally constitutional, point 1 of its First Additional Provision stipulates the preferential application of laws that, due to their subject matter, are considered special. These special laws do not require any of the procedures set forth in the LPACAP or impose additional or differing procedures. A critical issue has emerged in light of this provision in combination with autonomous community legislation that contains detailed regulations on the procedure for drafting and approving urban zoning plans. The question is whether or not the provisions from Section 133 must be applied in the approval of urban planning instruments, given their status as regulations. This matter, which has already sparked extensive debate among legal scholars and given rise to divergent interpretations of High Court of Justice in autonomous communities, was recently addressed by the Spanish Supreme Court in its Judgement 133/2023 of 6 February 2023, which holds that public consultation is not required for urban zoning instruments.