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The Supreme Court certifies the Wanda Metropolitano and establishes doctrine

| News | Public and Regulatory Law

In El Independiente Antonio Ñudi analyses the recent ruling by the Supreme Court on 21st October 2020 endorsing the urban plan for the Wanda Metropolitano, which was annulled by the Supreme Court of Justice

A little over two years ago I published an article in this same newspaper under the title: "Uncertainty flies over the Wanda Metropolitano".

It was the first chapter of a judicial story that has recently ended with the sentence issued by the Supreme Court on October 21st 2020 and which puts an end to an interesting litigation that had Club Atlético de Madrid and the Madrid City Council in mind.

In 2016, the City Council had initiated a specific modification of the 1997 General Urban Development Plan with a twofold objective: To provide an outlet for the land and facilities which were destined to host the Olympic Games in the city, once it had become clear that they were no longer going to be held; and to facilitate the transfer of the Vicente Calderón Stadium to the La Peineta Stadium, providing the possibility for another important urban development operation, Operation Mahou-Calderón which, although independent of the former, had as one of its objectives the demolition of the old stadium and the completion of the Madrid-Río project with the covering of the M-30 in the only section still on the surface.

The sale of the La Peineta stadium to Atletico de Madrid, as it is a public facility, required the previous declassification to that public use and this, in turn, needed a planning instrument, the Specific Modification of the General Plan of 2016.

The Specific Modification, once definitively approved by the Community of Madrid, was challenged by an association formed by Atlético de Madrid fans called "Señales de Humo" (Smoke Signals), which had been against the demolition and transfer of the stadium from the beginning, leading to the ruling of the High Court of Justice of 17th July 2018, which declared it null and void.

In that article of August 2018 I highlighted the forcefulness with which the Madrid High Court of Justice had expressed itself, arguing with heavy legal reasoning the existence of up to 6 reasons for which it considered that the urban development operation deviated from legality and deserved the most severe reproach, the nullity of the operation. He felt then that it could be a definitive blow to the operation because of the difficulty of combating it in a later appeal.

I also said in that article, by way of criticism of the ruling, that this operation made a lot of urban sense and responded to a clear general interest, which was intended to provide a solution to the fate of land and facilities destined for an Olympic Madrid that the ruling itself already recognised would not take place and closed the circle with the other operation miles away that contemplated the demolition of the Vicente Calderón stadium.

The City Council, in anticipation of the confirmation of the annulment ruling, had already initiated a new Specific Amendment that aimed to meet the criteria of the TSJM (High Court of Justice of Madrid) and provide legal coverage to what was already a reality.

Finally, the Supreme Court in its ruling of 21st October 2020 has upheld the appeals filed by the City of Madrid, the Community of Madrid and the Athletic Club of Madrid and has overturned the reasoning of the TSJM, marrying and annulling its ruling.

Once the full text has been analysed, we have found an exhaustive and important resolution that, in addition to ratifying its doctrine on relevant urban planning issues, has declared its jurisprudential doctrine in the controversial report on the impact of gender on the procedure for approving urban plans.

Contrary to what was stated in the first instance ruling, the Supreme Court considers that there has been a clear motivation in the approved modification, since the reality of 2016, without an Olympic Games on the cards after Madrid was not chosen - for the third time - as the venue for the years 2012, 2016 and 2020, is very different from the one that gave rise to the urban planning of the area in 1997 when the General Plan defined the area "AOE 00.28 Olympic Park". This important circumstance has been perfectly reflected in the Plan's Report, so the High Court considers that there has been no arbitrariness in the decision taken by the Administration and, therefore, there has been no deviation of power, as had been declared in the contested ruling.

Furthermore, the Supreme Court recognizes that the operation is of general interest that transcends the particular interest expressed between Madrid City Council and the Athletic Club of Madrid, in an agreement signed between both in 2008, which is even valued as part of the solution to the necessary modification, going so far as to say that the modification solves two strategic problems of Madrid, the area of Mahou-Calderón and the Olympic Park.

On the other hand, the Supreme Court stated that the fact that the plot of land occupied today by the Wanda Metropolitano Stadium is owned by a private company, Athletic Club of Madrid, does not modify the use of the sports equipment and its public destination and general interest, as it is an activity that is closely monitored by the citizens.

The High Court also considers that the TSJM is wrong to establish that the land subject to the Specific Modification, and more specifically the land occupied by the stadium, is unconsolidated urban land and should be subject to the transfers established by the Land Law of Madrid for this category of land, which are more burdensome than for consolidated urban land. For the Supreme Court, the urban development work affecting the stadium falls within the scope of the so-called provision of land, and the system of cessions must be limited only to the increase in development potential compared to that which existed previously.

Another of the reasons for the annulment of the Specific Modification, referred on this occasion to the noise impact report that the Town Hall contributed to the file and which the TSJM considered to be insufficient in that it had not taken into consideration the future use foreseen and not even the already planned use of the football stadium, has also been criticised by the Supreme Court, which considers that this cannot be a sufficient reason for a declaration of nullity because it is not proven that the change from public to private ownership of the installation involves a change, either quantitative or qualitative, in the noise coming from the activity.

Finally, in the case of the declaration of nullity of the Specific Modification due to the lack of a gender impact assessment report, the Supreme Court does not consider that it can be accepted as a reason for nullity either and, furthermore, it declares as jurisprudential doctrine that it cannot be required as a procedure in the approval procedure of urban development plans if the autonomous legislation itself does not expressly provide for it, which does not prevent the plan from being declared null if it is demonstrated that it is discriminatory on the basis of gender.

With this forceful ruling, which has amply dismantled the six grounds for nullity declared by the Madrid High Court of Justice in its 2018 ruling, the Supreme Court endorses the Specific Amendment and certifies the operations that had been carried out under it for the disaffection of the stadium plot and its subsequent sale to Athletic Club of Madrid, in which it had already built its Wanda Metropolitano.

You can see the article in El Independiente.

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