The current framework of liability in urban planning

Abstract

Enforcing liability of public authorities in urban planning poses enormous practical difficulties. Although Article 106 of the Constitution recognizes the right to compensation, in reality, pursuing these actions is perceived as a risky process, with very low success rates. Daily experience and case law suggest that the core of the debate lies in determining the unlawfulness of the damage. The existence of harm caused by the administration is not enough: the courts assess whether the action was reasoned and reasonable, even if it is later annulled. In such a case, it is understood that the individual must bear the damage without the right to compensation. This criterion has been consolidated as the hermeneutical key of the system and explains the majority of dismissals. Article 48 of the Land Law contemplates five cases of urban planning liability. The literal wording of the provision could suggest an almost automatic requirement of liability in these specific cases. In all of them, the courts have adopted a restrictive interpretation of its inference, denying compensation in most cases and reinforcing the idea that the literal meaning of the provision is more nominal than effective. In all of them, the so-called margin of tolerance doctrine appears as a closing mechanism. The conclusion of this paper is clear and not very optimistic. Demanding liability in urban planning, litigating against the Administration in search of compensation, becomes an unequal battle, in which the balance systematically tips in favor of the public sector, and where the prospects for success are slim.