Introduction
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.
Contact
Should you require further information on this matter, please contact: Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl)
