Case The 3rd Chamber of the Supreme Court 29 September 2010 , believes the appeal of the Canary Islands Supreme Court ruling against the Canaries, which recognized the right of the business entity to be indemnified by the Government of Canary Islands to the impossibility of operating the mine site with the revocation of the permit research finally annulled in court.
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The Board considers that until trial is performed prior administrative prevalence of mining and environmental interests can not be considered that there are no expectations or vested rights in certain and safe operation, and therefore not incorporated into the owner's equity research permits, other than rights arising thereof, or other damage may be compensated as those born of our own activity undertaken as a result of such permits , therefore, the Board concludes that inactivity of the trading company for more than three years to submit a restoration plan does decline his claim that had it not been canceled administrative decisions in the statement of 14 February 1998, had completed his application for a favorable resolution Direct Operating Grant, and did not get a bound duty never to exploitation of the deposit, but also not be said with certainty that require the placement of its claim, which came to bear on any time a certain expectation and secure it, and itself, and at most, an expectation remote merely possible, insecure, uncertain or contingent.
We must remember that the 3rd Chamber of the TS, in its ruling of October 14, 1994 (Appeal 7.318/90-third legal basis, no. 3), the root of liability Institute of Public Administration, set up legally as a liability or the result is the need for a citizen or "managed" support not prejudicial or harmful consequences of administrative action that aims at general interest, but also by the Chamber (Section Six) has rejected compensation remote expectations, being merely possible, insecure, uncertain or contingent , to be devoid of certainty (Judgement of 18 October 1993-8002/90- appeal third legal basis "in fine" -). Applied
that doctrine to cases prosecuted by the Board for instance, is permissible to conclude that the holder of exploration permits do not have to bear the damaging consequences for their wealth derived from the reported prevalence of general interest in protecting the environment without, however, be granted compensation for a hypothetical profit would only be carried out mining operations in the event that there is no reason that is precluded by the need to protect the physical environment.
Under the doctrine set forth in the legal basis third of the sentence of TS, when it comes to exploiting mineral resources, has to be made in any case, value judgments and weigh the importance to the economies of the specific mining and the damage it can cause environmental to meet the provisions of Article 45.2 of the Constitution and the provisions of Articles 66, 69.1 and 81 of the Mining Act itself and 17.1, 34.1 and 57.1 of the then current consolidated text of the Law regulating the Soil and Urban, approved by Royal Decree 1346/1976, of 9 April, and now, by Articles 84.3, 88 and 134 of the Revised Law on Regime of Land and Urban approved by Royal Legislative Decree 1 / 1992 of June 26, which provide the linkage of government and individuals to urban planning provisions contained in the applicable zoning laws and plans.
Ultimately, when necessary, to carry out a particular mining, prior administrative trial indicated prevalence of competing interests (mining and environmental), it is considered that there are no expectations or vested rights in certain and safe operating until it has been made above value judgments, and therefore, until the Administration to pronounce on the matter, have not been incorporated the owner's equity research permits other than rights that it derives or other damage may be compensated as those born of our own activity undertaken as a result of such permits (Articles 44 and 67 of Law 22/1973, of Mines).
We must remember that the 3rd Chamber of the TS, in its ruling of October 14, 1994 (Appeal 7.318/90-third legal basis, no. 3), the root of liability Institute of Public Administration, set up legally as a liability or the result is the need for a citizen or "managed" support not prejudicial or harmful consequences of administrative action that aims at general interest, but also by the Chamber (Section Six) has rejected compensation remote expectations, being merely possible, insecure, uncertain or contingent , to be devoid of certainty (Judgement of 18 October 1993-8002/90- appeal third legal basis "in fine" -). Applied
that doctrine to cases prosecuted by the Board for instance, is permissible to conclude that the holder of exploration permits do not have to bear the damaging consequences for their wealth derived from the reported prevalence of general interest in protecting the environment without, however, be granted compensation for a hypothetical profit would only be carried out mining operations in the event that there is no reason that is precluded by the need to protect the physical environment.
Under the doctrine set forth in the legal basis third of the sentence of TS, when it comes to exploiting mineral resources, has to be made in any case, value judgments and weigh the importance to the economies of the specific mining and the damage it can cause environmental to meet the provisions of Article 45.2 of the Constitution and the provisions of Articles 66, 69.1 and 81 of the Mining Act itself and 17.1, 34.1 and 57.1 of the then current consolidated text of the Law regulating the Soil and Urban, approved by Royal Decree 1346/1976, of 9 April, and now, by Articles 84.3, 88 and 134 of the Revised Law on Regime of Land and Urban approved by Royal Legislative Decree 1 / 1992 of June 26, which provide the linkage of government and individuals to urban planning provisions contained in the applicable zoning laws and plans.
Ultimately, when necessary, to carry out a particular mining, prior administrative trial indicated prevalence of competing interests (mining and environmental), it is considered that there are no expectations or vested rights in certain and safe operating until it has been made above value judgments, and therefore, until the Administration to pronounce on the matter, have not been incorporated the owner's equity research permits other than rights that it derives or other damage may be compensated as those born of our own activity undertaken as a result of such permits (Articles 44 and 67 of Law 22/1973, of Mines).
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So, if the administration states prevalent physical environmental protection and therefore refused the declaration of public utility Mining Project, the research permit holder is entitled to challenge such administrative agreement if it considers that the interest mining is prevalent against environmental protection to carry out the exploitation of existing resources, but if not fought that decision (which is the case here under the declared withdrawal by the judgment) or the review court is declared in accordance with law, the holder of the permit research can not demand recognition of the lost profit for the inability to carry out mining, since legally it is subject to prevailing interest in the stewardship of the physical environment, and therefore, no one had vested rights to nor the concrete operation and secure certain expectations for the disappearance of which must be compensated, forcing estimate in relation to loss of profits, the grounds of appeal raised by the appellant Administration for applying the Board improperly instance, by granting such compensation, as provided by Article 33.3 of the Constitution and 1.1 of the Expropriation Act, as there was, as just outlined, a singular deprivation of vested rights or expectations, certain and safe, and therefore also infringed the provisions agreed to by Articles 40 of the Legal System of the State Administration of 1957, 121.1 and 122.1 of the Law of Expropriation in the absence of prejudice, as to such an extent economically assessable and individualized. "
This decision, which recognizes the right to compensation for the concept of "damages " (in that case: the price that the plaintiff had paid for the acquisition of exploration permits and investments in mining research and in the construction and operation of the plant, plus the compensation paid by the dismissal of workers), but not by "profits" (ie, the impossibility of carrying out mining) reflects, therefore, a doctrine that is not coincidental, but rather opposite to that which estiam more in line with the right TS.
This decision, which recognizes the right to compensation for the concept of "damages " (in that case: the price that the plaintiff had paid for the acquisition of exploration permits and investments in mining research and in the construction and operation of the plant, plus the compensation paid by the dismissal of workers), but not by "profits" (ie, the impossibility of carrying out mining) reflects, therefore, a doctrine that is not coincidental, but rather opposite to that which estiam more in line with the right TS.
The problem is therefore merely a matter of form: whether it was appropriate to grant the concession, but under the condition that they submit a restoration plan (thesis of Directors) or, conversely, not grant it until he presented that plan, the Administration approved the award along with it (thesis statement, supported by the City co-defendant). The answer is given in Articles 2 and 4 of Royal Decree 2994/1982, under Article 2, "in advance" to the granting of the concession title has submitted a restoration plan, according to the Article 4 The competent authority, "in view of the plan submitted may approve, require additions or modifications to it," but in any case, the "Restoration Plan approval shall be in conjunction with the granting of authorization for the use or the mining concession, and will be considered a special condition of those securities. They may not be granted if through the Restoration Plan is not properly secured the restoration of natural space. "
The application of these rules does not, then (even prohibits it, using the expression" may not ") Administration to grant concessions without the simultaneous approval of restoration plans, where required. The "conditional award" should be included and the wording of the condition, that is, the detailed account of the specific restoration requirements contained in the plan and as appropriate: you can not, however, refer to a hypothetical future adoption Further restoration of the plan itself. This conclusion is, moreover, not only derived from the immediate and logical application of the regulations governing the matter, but the one that protects the safety requirements legal, even for the same owner of the mining concession.
Indeed, as the contested decision not only violate the statutory requirements but also create legal uncertainty: for, if it is true that, in principle, nominally awarded the grant, the grant is subordinating its effectiveness not only because the presentation of the restoration plan by the interested party, but the subsequent approval of that plan by the authority which, in turn, can contain other conditioning. To avoid this uncertainty, among other reasons, have transcribed above regulatory requirements which must be precisely at the time of franchising operation when approved, simultaneously, the restoration plan. To have understood well, quite correctly, appealed the sentence, it must be the rejection of this. "
In turn, the Supreme Court decision dated June 15, 1999 ruling on the appeal no. 3646/1993, resulting from a process that was not part of the plaintiff here, was referred to the case-law requiring a new public information after the provisional approval when entering into the final substantive changes that involve a fundamental change in planning provisionally approved. And after that, he reasoned literally: "In case we decide, and regardless of any changes affecting the appellant, there is a modification to that of the five million square meters of land designated as" Suitable for Urbanization "in the Provisional Approval is passed, final adoption, a million square meters. This reduction in soil "Suitable for Urbanization", which is reduced to one-fifth of the provisionally adopted, we believe that fundamentally altering the planning temporarily approved in characterizing the discretion of the author of Planning, and which, seen amended required the public information omitted, which involves the estimation of the appeal filed. " Nor there, nor of the allegations in this process, it follows that the reason for the cancellation would, or had to do with the regime applicable to urban Montanet Tebet. Or anything we are told, finally, about that regime suffered any change in the final approval later in 2000.
And TS concludes:
1 º) As first, totally unfounded assertion that the plaintiff did in the administrative complaint and notice of demand in 1993, had it not been administrative decisions sentence overturned on February 14, 1998, would concluded with a favorable resolution of CDE request and entered into this year's exploitation of the deposit. His prolonged period from June 1990 to fulfill its obligation to submit a restoration plan that could be accepted by the Administration is more than adequate proof of the absolute lack of foundation of the initial thesis of your claim and demand.
2 º) And second, that not only got never a bound duty to exploit the deposit, but also not be said with certainty that require the placement of its claim, which came to bear at no time sure and certain expectation to it, and itself, and at most, an expectation remote merely possible, insecure, uncertain or contingent. That prolonged inaction in fulfilling their obligation cited above, of which no assurances can be derived over time that really have followed prolonged. The reference was already in its letter of May 26, 1993 to the cessation of the business by various Government actions due to environmental reasons, and anomalous retrotrajera request for the start of proceedings, ie one year, 1988, in which no environmental barrier seems to have emerged. The uncertainty that the TS is not clear on the actual incidence among 1990 and 1999 of the subsidiary regulations of La Oliva to obtain licenses and permits necessary to conduct the proposed operation, together with the legal efficacy of hypothetical final administrative acts prior to the decision of the Supreme Court dated 15 June 1999, derived from what is stated in art. 73 of the Law of the Jurisdiction. And the ban emerged with the most adamant in August 2001 to all extractive activities in the area, are reason enough to not qualify this expectation as sure and certain, and yes, just as remote, and to apply, in short, criterion for interpretation of the whole legal system exposed to cases like the present in our statement of 11 February 1995, rejecting thus the compensation claim for lost profits, only inferred in the process.
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