From the urbanization, building and land use planning of the city as a landowners corporation towards a complex setting for social activities

Abstract

The paper takes head on the odd way in which spanish planning legislation sees the landowner as the natural font of all building and planning duties and rights. Spanish constitutional structuring and the principles behind the European Union's Treaty of Rome as to the open market and free competence for this on the property market give rise to serious problems when it comes making either of these natural law' notions fit in with modern constitutional doctrine and law as to objects. If it is taken as universally demonstrated that territory is subject to public governance and this in its general public's interest, then planning activity can be neither imposed upon nor yet made an attribute proper to the owner of any ground to the end of making him a necessary party to a public planning function in the light of his mere ownership of any given plot (art. 33EC). Quite otherwise, such activity is seen as an economic business one subject then to free competition (art 38 CE) given that both benefits and any future city are at once virtual yet public given that they do not exist before their creation and thus cannot be subject to civil law governing things concrete. Actual legal procedures. the paper argues, are thus an anti-constitutional restricting of an access to an open market and this not only due to the non-renounceable spatial restricting of ground for development but also because of the excluding initiative that the owner is obliged to shoulder ( and this even to the excluding of third parties) throughout any developing process. The paper lays down that plainly only free and willing business activity is the necessary vehicle for bringing the public function of creating the future reality or any virtual image of the city and that this alone can transform either into real things open to being built in keeping with the dictates of the law as to private property.