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.