This judgment resolves the Appeal against the Supreme Court initiated by a construction company claiming the responsibility of the Town Council of Zaragoza as a consequence of injuries and damages that it caused on partially cancelling the license that it had previously awarded for the construction of a building, obligating it to restructure the access to the garage when the aforesaid access opened onto a pedestrian zone.

The responsibility for licenses for urban development is determined in accordance with article 232 of the Revised text of the Act on Regulations on Ground Space and Town Planning of 9th April 1976 conforming to the rules of patrimonial responsibility of the Administration. This explains why in order for a claim in damage of this nature to be viable it must have produced a material damage, able to evaluated in financial terms, illegal and individually in relation to a person or group of persons. When all these elements are present, unless intent, blame or serious negligence are attributable to the injured party, there is the right to indemnify.

On the basis of the abovementioned, in the 1st and 2nd Instance the demands of the construction company were refused indicating that there was fault on behalf of the company for not having taken the necessary precautions to obtain correct information on the applicable urban development rules and the pedestrian nature of the street onto which the garage opened.

However, the Supreme Court departed from this position, putting forward the following:

“The jurisprudence of the subject identifies the criteria in order to determine the circumstances to exclude Administrative responsibility for the intent or serious blame of the injured party. Thus, for example we can state the manner to present the plan, the performance in the procedure, other concurrent circumstances, etc, through forms or inexact ways that could reasonably provoke an error by the Administration and hiding or altering information that could induce a mistake by the Administration. This reiterated jurisprudential doctrine is that the blame or serious negligence (and of course, intent) does not originate from the possibility of having more or less complete knowledge of the offence, because the “gravity” demands that the actions are so strong that the licence would not have been granted without it and that this is cast upon the procedure of awarding the licences, since the rules on urban development oblige the Administration and the citizens and therefore the town hall cannot dispense with a complete examination to check that such project conforms or not with the Plan". 

In this case, in attention to the aforesaid considerations, there was not a single moment in the present case where facts that had determined the awarding of the initial licence had been concealed or altered, however, the Chamber of Instance understood that blame on behalf of the citizens “for not having taken the necessary precautions” to obtain the correct information on the applicable urban development rules.

On that reasoning the Supreme Court does not share such approach with the Chamber of Instance, stating that the interested party did not obtain the correct urban development information on the pedestrian nature of the street onto which the access to the garage opened, causing the license to be awarded and without any evaluation of the importance of such information.

The judgment explains that, from the pleadings contained in the file, one can clearly deduce the discrepancy in the interpretation of the Rules and General Plan on Urban Development in so far as the consideration of the street as pedestrian in nature or of restricted access, and the scope of this last category’s effects on the attempted vehicular access, was found to be consistent with that of the Town Council’s technical services to support the appropriateness of the licence.

In these circumstances it is very difficult to notice negligence or serious blame of the citizens in the evaluation of these urban development circumstances, for the elaboration and presentation of the corresponding plan, when its scope was highly controversial for both the technical services and rules of the same Administration. In this case one cannot talk definitively of serious negligence by the citizens in the knowledge of urban development rules and also the approach of the plan supporting the licence for the proposed works.

On the basis of the aforementioned, the Supreme Court partially accepts the appeal, and grants damages to the construction company at a level less than demanded. In order to calculate these damages, the Supreme Court establishes that, as Jurisprudence dictates, the payment must cover the damage as well as the dismissed gain, it is certain that one cannot work out the dismissed gain as an indemnification, the believed benefits arising from an illegal activity, although having such through official administrative permission for such activity, cancelled afterwards, and two reasons for this: (i) the first being that such a gain is illegal, derived from a permitted activity by Law and consequently the subject is obligated to comply with this prohibition, and the deprivation of such gain is not attributable to the activities of the administration but to the rule of the Law and, (ii) secondly, because the recognition of such withdrawn benefits would suppose the consolidation in favour of the subject, in material economic terms on an activity whose illegality, in so much that it derives from general rule of law, he should have known beforehand without this approach being affected by the inadequate performance of the administration.