The ruling of September 7, 2023 of the Supreme Administrative Court (available here in PDF or in www.dgsi.pt) annulled the environmental non-compliance decision (DECAPE) for the urbanization of Execution Unit 1 of the Detailed Plan (PP) of Praia Grande, Lagoa dos Salgados, Silves.
Knowing that the Sintra Administrative and Fiscal Court had made a contrary decision in 2021, my expectation, as a citizen, urban planner and former director of the CCDR of the Algarve who decided the procedure, was that the Supreme Administrative Court (STA) would confirm the first verdict. Instead, it reversed it. Whether we agree or not, we owe him respect.
The facts contained in the edges explain that the Algarve CCDR would like DECAPE not to take as long as it did. However, the assessment of compliance with Measure 15-A of the Environmental Impact Declaration (DIA), as a matter of Biodiversity and Natura 2000 Network, implied the assessment of another entity. A favorable or unfavorable DECAPE depended on this assessment.
Despite having denied reason to the developer of the project regarding compliance with measure 15-A of the DIA, aimed at the mandatory protection of an important population of algarvian linaria, the STA considered, contrary to the CCDR, that DECAPE was issued after the deadline and that, therefore, “a tacit act of conformity of DECAPE with the DIA” was formed. What the AIA legal regime calls tacit approval (article 21, paragraph 7).
Soon the alarms sounded. The destruction of one of the most important natural values existing next to Lagoa dos Salgados seemed unstoppable and urbanization now seemed to be able to proceed full steam ahead on the land. But, is this the conclusion we should draw from the STA's sentence?
In environmental impact assessment (EIA), tacit approval is different from other regimes. The STA's decision itself seems to prove this: in AIA it is possible to have a tacit DECAPE even if the DIA cannot (yet) be considered fulfilled, but it has to be. Confused? Yes.
Consequences of the sentence? In my opinion, the constitution in favor of individuals has the right for the environmental procedure to end without express decisions (DIA or DECAPE) and for the main licensing procedure to continue, but without ignoring it.
Tacit acts in EIA imply a type of transfer of powers from the EIA authority to the entity responsible for licensing the project. In other words, the licensing entity's decision on the licensing procedure – urban planning, in this case – will have to be more demanding than usual, because it will now have to consider the different positions and opinions issued throughout the environmental assessment and indicate, in fact and in law, what are the environmental conditions or reasons why the project may or may not be licensed.
In the specific case, with the express annulment of DECAPE, the promoter gained the right, not to a works license, but rather to the urban licensing procedure to continue in the city council, however, without ignoring the statements made by the different entities made in the environmental assessment. . From the outset, the DECAPE proposal does not comply with the Evaluation Committee or the ICNF opinion that rejected the measures advanced to comply with DIA Measure 15-A and compensation for the destruction of the algarvian linaria existing in the area. Negative opinion in which the CCDR necessarily praised itself for issuing the unfavorable DECAPE.
Even so, how could the city council today be legally obliged to consider the ICNF's relevant unfavorable opinion if the CCDR, for some reason beyond reason, had not waited for the same to decide? What would be in the process would be the measures presented by the prosecutor maintaining that Measure 15-A of the DIA was fulfilled...
Is it because he understands the STA's sentence more or less like this that the Minister of the Environment has already stated that he does not see how it will be possible for the tourism project to go ahead?
The STA's decision was a shot at the aircraft carrier, but the ship did not sink. And she stays on track.
But, we warn again, until the various territorial plans that foresee an additional 20.000 new tourist beds and 7.000 new housing units for several sensitive areas of the Algarve coast are revoked or suspended, the shooting will continue.
PS: In 2015, following the change to the DIA, the Algarve CCDR suggested to the guardianship the suspension of the Praia Grande PP.
Author Nuno Marques is an Urban Planner and former Vice-President of the CCDR of the Algarve (2012-2020)
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