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Contraloría General de la República pronounces on the granting of building permits for new construction on previously built-up land, in relation to the land occupation coefficient.
On 26 March 2021 and through ruling No. E89540, the Office of the Controller General of the Republic responded to a request for a statement made by the Fundación Defendamos La Ciudad, regarding the legality of building permit No. 35 of 2019, issued by the Directorate of Works of the Municipality of Providencia, which authorised the construction of two residential buildings on a site that would already have buildings on it.
The Comptroller’s Office notes that, according to the Providencia Communal Regulatory Plan, the land is located in the UpR and ECr (Preferential Residential Use and Restricted Commercial Equipment) land use zone and in the EAL/pa (Free Isolated Building/Allowing Adosamiento) building zone, admitting a land occupation coefficient for the first floor in isolated building of 0.2 and a constructability coefficient of 2.9.
The Sheraton Hotel is currently built on the land in question, with a floor occupation coefficient for the first floor of 0.3 (a value that complied with the urban planning regulations at the time of its construction, as the coefficient was set higher than the current one, which is 0.2). Thus, the Comptroller found that there would be no basis for admitting new construction on the site, since any other construction would mean exceeding the land occupation coefficient currently contemplated by the planning regulations.
The Comptroller’s Office determined that the building permit in question does not comply with the urban planning regulations in terms of land occupation coefficient, and will therefore have to take steps to correct the irregularity. Regarding the allegations raised about the project and the assumption that it would exceed the constructability coefficient allowed in the Communal Regulatory Plan, the Comptroller’s Office dismissed these allegations.
On the other hand, the Comptroller added that one of the underground levels of the projected buildings to be constructed would not meet the definition of article 1.1.2 of the General Ordinance of Urbanism and Constructions to qualify as an underground itself.
Subsequently, the Comptroller’s Office made a statement on the allegations made with respect to the Impact Study on the Urban Transport System of the project (approved by official letter No. 4015 of the Metropolitan Regional Secretariat of Transport and Telecommunications, hereinafter “SEREMITT”), indicating that it only contemplated the car parks to be built and not those that were already previously constructed. The Comptroller’s Office determined that SEREMITT must inform and accompany the background information to prove that the approved mitigations considered the impact of the car parks already built at the Hotel.
Finally, the Comptroller dismissed the allegation that the project should enter the Environmental Impact Assessment System, considering that this entry was not mandatory for the implementation of the project.
Supreme Court accepts appeal for protection against mitigation works regarding the construction of a hotel in Concon.
On 29 March 2021, and resolving case Rol N°88.411-2020, the Supreme Court, hereinafter the “Court”, accepted an appeal for protection filed by the Corporación Pro Defensa del Patrimonio Histórico y Cultural de Viña del Mar and the Fundación Yarur Bascuñán, against Inmobiliaria Punta Piqueros S.A., referring to the works that the latter is currently executing in the Roca Oceánica Nature Sanctuary, located between the communes of Viña del Mar and Concón, consisting of the construction of a hotel and its respective mitigation works.
In this ruling, the Court pointed out that any work that is located in the vicinity of a Nature Sanctuary must be submitted to the Environmental Impact Assessment System, by obtaining an Environmental Impact Study.
In this particular case, the Court ruled that the mitigation measures adopted by the respondent were complementary to the project itself, so it was necessary, prior to assessing the relevance of such measures, to study the environmental impact of the project itself, which has not taken place to date. In addition to the above, the real estate project does not have a Building Permit, so its construction is not likely to materialise and therefore the mitigation measures have no justification for their implementation.
Moreover, the Court concluded that the Respondent’s activities generated a violation of the right to live in an environment free of pollution, enshrined in article 19 N° 8 of the Constitution, in relation to article 2°, letter ll) of the Law of General Bases of the Environment.
Finally, the Court ordered the Superintendence of the Environment to supervise the project again, bearing in mind that the Hotel Punta Piqueros project lacks a Building Permit and with special observation of the norms that protect Nature Sanctuaries, being able to paralyse any work until a favourable Environmental Qualification Resolution is obtained by the Real Estate Agency.
In a verdict dated December 23, 2020 of the RIT 11-2020 case, the Court of Oral Trial in Criminal Matters of La Serena unanimously convicted Ximena Alicia Burdiles Mohr and Juan Manuel Miranda Carmona as perpetrators of the crime of irregular lots, contemplated in Article 138 of the General Law of Urbanism and Construction (hereinafter “LGUC”) and of the crime of repeated fraud. In addition, it condemned Flavio Jaime Edgardo Gómez Pizarro, the lawyer who advised them on said lots, as an accomplice to the crimes described above. All this, in the context of the sale of irregular land or “witches’ plots” in the communes of La Serena and Coquimbo.
The convicted persons, through the company Parcons Propiedades Limitada, between the years 2013 and 2017 acquired agricultural land in the communes of La Serena and Coquimbo that was forbidden to change the use of the land. Notwithstanding the foregoing, said land was parcelled and put up for sale, expressly contravening the regulations in force, as it was subdivided without the corresponding authorizations, as provided in the LGUC, and in a size smaller than 5,000 square meters as established by Decree Law 3.516.
To that effect, and without prejudice to the existence of pending appeals, the Court determined that Mrs. Burdiles Mohr was guilty of the execution of 6 irregular lots plus 5 crimes of repeated fraud, being sentenced to 20 years and one day in prison. Mr. Miranda Campos was found guilty, as co-perpetrator, of carrying out 4 irregular plots of land plus 3 crimes of repeated fraud and was sentenced to 13 years in prison. Finally, Mr. Gómez Pizarro was found guilty, as an accomplice, for the execution of 5 irregular lots plus 5 crimes of repeated fraud and was sentenced to 8 years in prison. To all the above, the fines to be paid by the defendants and the amount of the civil action filed for the emergent damage to the more than 200 people affected by the purchase and sale of the irregular land must be added.
Ruling of the Office of the Controller General of the Republic instructs the adjustment of Specific DDU No. 5 on the subject of distancing and declares that it does not conform to law Building Permit in La Florida.
On December 11, 2020, the Controller General of the Republic, hereinafter “CGR”, on the occasion of a request submitted by the Foundation Defend the City, consisting of the CGR to pronounce on the legality of the document No. 1. 546-S/2019, of the Works Directorate of the Municipality of La Florida, hereinafter “DOM”, which rejected its request to initiate an invalidation procedure with respect to building permit No. 143, of 2019, of that unit, based on the fact that projects such as that of the type are governed by official letter No. 184, of 2009, hereinafter “Specific DDU No. 5”, of the Urban Development Division of the Ministry of Housing and Urban Development, since, in the Foundation’s opinion, this would violate the urban spacing regulation; issued Ruling number E58946/2020, by virtue of which, in its opinion, the Specific DDU No. 5, by providing a different parameter to the total height of the building to determine the distance, as well as by contemplating various distances according to the floor they face, would be amending the General Ordinance on Urbanism and Construction, for which it would be acting outside the scope of its competence, defined in Article 4 of the General Law on Urbanism and Construction.
As a consequence of the foregoing, CGR determined that the Building Permit was not adjusted to the law, instructing the DOM to correct the irregularity, specifically through the invalidation of the administrative act. On the other hand, CGR instructed the Undersecretary of the Ministry of Housing and Urbanism to adopt the measures to adjust the content of the Specific DDU No. 5. In both cases, CGR must be informed within 15 days as from the receipt of Opinion number E58946/2020.
The Supreme Court accepts the appeal for protection filed by the residents of Ñuñoa and orders the opening of the citizen participation procedure for the construction project of a Mall in the municipality of Ñuñoa.
The Third Chamber of the Supreme Court in Ruling No. 62. 662-2020 accepted the appeal for protection filed by the Neighbors’ Board La Portada de Ñuñoa against the Executive Directorate of the Environmental Evaluation Service (hereinafter “SEA”), for the issuance of Exempt Resolution No. 0576, which rejected the opening of a process of citizen participation in the project being executed by Puente Real Estate Company Limited for the construction of the “Mall Vivo Santiago Stage II Shopping Center”, which includes, among others, commercial premises, residential units, Apart Hotel and 7 floors of parking lots.
The SEA maintained that the project did not generate any social benefit for the nearby community, but only for those families who will live in the homes and use the shopping center. Therefore, since the requirement of Article 94, paragraph 7 (social benefit) of Decree 40, which approves the Regulations of the Environmental Impact Assessment System, was not met, its decision was justified. A contrarily sentencing, the judges considered that given the characteristics of the project, by contemplating the construction of a tunnel connecting to the Ñuñoa subway station, creating housing units to buy and sell and implementing a new network of rainwater collectors, as well as medical services, both social benefits and negative externalities (increased noise, vehicle congestion and floating population in the surroundings), necessary to configure the concept of environmental charges required by Article 30 bis of Law No. 19, would be verified. 300, on General Bases of the Environment, to open a process of citizen participation and, therefore, since the effective exercise of the principle of participation established in the environmental regulations is prevented, the action of the SEA, by denying citizen participation, becomes illegal.
Supreme Court ratifies requirement to change land use to build on lots located outside urban radius, on the grounds of a real estate project.
On October 5, 2020, the Third Chamber of the Supreme Court unanimously rejected the appeal for protection filed by Inversiones Panguipulli SpA against the Regional Comptroller of the Rivers (Ruling No. 62. 948/ 2020), for the issuance of Ruling No. 203 dated January 15, 2020, which declared irregular thirteen building permits granted by the Municipal Works Directorate of the Municipality of Panguipulli (“DOM”) to the appellant to build housing in part of the 228 lots resulting from the subdivision of the rural property located in Panguipulli Bay. In the opinion of the Comptroller’s Office, the failure to submit the favorable reports of the Agricultural and Livestock Service (“SAG”) and the Regional Ministerial Secretariat of Housing and Urbanism of the Los Ríos Region (“SEREMI”) for the respective change of land use in view of the development of the “Bahía Panguipulli” housing project, was in breach of the provisions of Article 55 of the General Law on Urbanism and Construction (“LGUC”), in addition to infringing the terms of the D L. N° 3.516, since this norm prohibits the use of subdivided properties for urban or housing purposes.
Although Inversiones Panguipulli SpA maintained that its intention was to prepare and sell the mentioned properties maintaining their condition of rustic, and therefore it was unnecessary to request the change of land use, only for this purpose the building permit granted by the DOM is sufficient, In the opinion of the judges, although the controversy exceeded the precautionary nature of the appeal, it did not prevent the fact that Inversiones Panguipulli SpA did not have the favorable report for change of land use, which given the background, should have been issued in order to comply with the provisions of Article 55 of the LGUC.
Supreme Court settles dispute over calculation of expiration period for construction permit of phased real estate project.
On August 7, 2020, the Third Chamber of the Supreme Court, in a ruling on Case No. 29. 614-2019, put an end to the dispute between Inmobiliaria Travesía SpA (“Inmobiliaria”) and the Municipality of Pudahuel, rejecting the appeal on the merits deducted by the Inmobiliaria and thus confirming the sentence issued by the Court of Appeals of Santiago in August 2019, which rejected the claim of illegality against the municipal resolution that declared the expiration of building permit No. 221/15 granted in favor of the Inmobiliaria for the construction of two residential towers.
The highest court determined that the allegations made by the Real Estate Agency, although not incorrect, since, in fact, in order to suspend the expiration term in a construction project by stages, it is sufficient that the works had been started in only one of the towers projected, and not with respect to the entire real estate project, as provided in Article 1. 4.7 of the General Ordinance on Urban Planning and Construction (“OGUC”); in the particular case, the judge of court could not verify that the excavations carried out on the land corresponding to Tower B, where a public lamppost was still standing in the middle of the work, complied with the requirements set forth in the aforementioned urban planning regulation.
In this sense, the judge stated that, contrary to what the Real Estate Agency argued, with respect to Article 5.1.3 of the OGUC, which refers to the execution of excavations, shoring and bracing in works preliminary to the project itself, in no case did these facts suspend or interrupt the expiration period established in Article 1. 4.17 of the OGUC, since only excavations in accordance with the plans of the project, together with the execution of its layouts, allow the work to be considered as having begun, and while this event does not take place, the period of three years contemplated by the urban planning regulations must be calculated to begin the construction work.