EL SILENCIO POSITIVO CONTRA LEGEM TRAS LA LEY 4/1999, DE 13 DE ENERO. UNA SOLUCIÓN LEGAL FRUSTRADA POR EL TRIBUNAL SUPREMO.

Abstract

In its ruling of 28 January 2009 on an appeal filed in the interests of the law, the Spanish Supreme Court ruled in accordance with its traditional position on administrative silence in land development. The court said that, whereas the stipulation that licenses contradictory to established planning cannot be acquired through silence subsists (first in section 242.6 of the 1992 Land Act and now in section 8.1.b) of the 2008 Land Act), the reform of the Act on the Legal Procedure for Government and the Common Administrative Procedure (ALPGCAP) by Act 4/1999 of 13 January does not allow us to assume that the mere expiration of the decision-making deadline implies that the license is granted when the requested license operates contra legem under the exception resulting from section 43.2 of the ALPGCAP. In that case a late decision refusing the license may well be handed down, without any prior review procedure, because there is no act to be reviewed. Such an event would have certain registration- related peculiarities if an entry predating the late decision has already been made on the grounds of acts performed by virtue of silence.