Urban planning legality

The Supreme Court (TS) has resolved a very practical case, when a City Council wants to “ restore urban planning legality ” (for example, to order the demolition of illegal works on non-developable land), it usually needs technical and legal reports that support that decision. In the analyzed case, the City Council was newly created and did not have its own technical means , so it asked for help from the Provincial Council. With those reports, it was concluded that the works were incompatible with the planning and demolition was agreed.

The owners appealed, saying, in essence, that those reports were not valid because they were not issued by personnel with the appropriate condition and level . The TS agrees with them and explains that we are not dealing with “supporting papers” as such, but with mandatory and determining reports , that is, reports that materially support the final decision (“the debated reports are mandatory and materially support the final administrative decision”). Therefore, in coercive and sensitive procedures like these (urban discipline), it is not enough for someone to “know” or have an internal qualification, certain functions are reserved for officials precisely to guarantee objectivity, impartiality, and independence.

In the specific case, part of the report came from a C2 subgroup official "enabled" for technical tasks. The TS clarifies that this enablement can serve for specific aids , but not for performing continuously higher functions that guide and underpin administrative resolution (“the internal administrative enablement... does not legitimize... the continuous performance of higher legal functions...”). Therefore, municipal resolutions based on those reports are considered invalid , establishing a clear criterion on who must inform when the report is decisive in this type of files.

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