The dolphinarium at Gran Canaria’s Palmitos Park theme park, located in the protected Pilancones Natural Park, in the southern municipality of San Bartolomé de Tirajana, is illegal. This was the ruling of the Second Section of the Administrative Litigation Room of the Superior Court of Justice of the Canary Islands (TSJC) who have annulled the subsequently approved legalisation project, which was granted 3 years after the attraction opened, by the Regional Government’s Ministry of Public Works in March 2013.
The court rules against the procedure used by the executive, the so-called Territorial Action Project (PAT) meant for projects of great territorial or strategic importance (an exceptional management tool, reserved for initiatives of general interest) in force in the southern municipality, published in February 2007, as not being valid in this instance. The judicial resolution, which is not yet final, can be appealed in the Supreme Court.
According to the judgment, works for the construction of the dolphinarium began before the forest fires that ravaged the island of Gran Canaria ten years ago, in the summer of 2007, which also destroyed part of the theme park. Three days before the fire was declared, the promoter, Aspro Parks, who also operate the nearby Aqualand water park, approached the Town Council of San Bartolomé de Tirajana to request a territorial qualification that would allow them to undertake works, which they had in fact already begun.
Both the town hall and the Cabildo of Gran Canaria reported back unfavorably regarding this request. In their resolution, the municipal council pointed out that the Canary Islands Commission for Territorial Planning and the Environment (Cotmac) made clear in the year 2000 that the instrument required to authorise any extension of the complex, exceeding 20% of existing facilities, would be what is known as a Special Plan. However, during the processing of the case for the development of this plan, the promoters began and concluded the construction of the dolphinarium.
The judgment considers that the Administration infringed the rules when granting authorisation “in several essential aspects” . The TSJC Canary Islands High Court pointed out that the PAT, as an instrument of law, was conceived for actions of an exceptional character and public or social interest. However this specific motivation does not appear in the decree subsequently granting authorisation, examined by the court: “It simply qualifies it as an improvement to the complementary tourist offering and improvement of the economy and for employment, without taking into account that it is the legalisation of an activity that was already being carried out.” The magistrates highlighted the fact that the PAT is “an undetermined juridical concept that can not protect discretionary actions” and that such projects must realise the public interest that it pursues.
Editor’s comment: Basically, since the year 2000, there has been a clear framework that must be followed for major projects of this kind, particularly when enlarging a facility of this type within a protected area. When Palmitos Park applied for permission, they did not receive favourable reports supporting the project, and in fact had already started to build it. In the aftermath of the fire of 2007, which caused material damage to the park, it seems the project went ahead anyway, to open in 2010. From that point on it appears the administration of Palmitos park may have worked to gain a retrospective permission from the the town hall of San Bartolomé de Tirajana, and the regional government, which seems to have then been granted in 2013. This ruling overturns that granting of permission, as being formally incorrect.
The TSJC added that the decree approved by the regional government contradicts municipal planning, which referred to a Special Plan for the plot in the protected, rustic zone. However, the promoters simply processed it as a small-scale PAT, avoiding the process required by law to consider it of great importance. In fact, the agreement of the Cotmac of January 2013 approved excluding the procedure from environmental evaluation “without motivation”, which violates the legal forecast that is required to be incorporated for a PAT of great importance.
The judgment imposes on the promoters of Palmitos Park the payment of procedural costs, up to a maximum of €3,000.
The dolphin tanks opened, controversially, in 2010, touted as some of the very “biggest in Europe”, and yet when permission was being retrospectively sought, the project was described as consisting of minor alterations and being of no great importance. Can both ideas have been true?
The project promoters decided to go ahead with construction despite not having the correct permits or permissions to do so. It appears, to some at least, rather arrogant for them to have opened this facility with much fanfare and then once open, sought the relevant permissions after the fact, all the while playing down the significance of the development in official papers.
What is more, does a modern 21st century tourist attraction have the right to keep sea creatures of this type in tiny tanks? Cetaceans of this sort in the wild roam on average 50km every day and can go much further, at speeds of up to 30km per hour, they have evolved to inhabit wide open ocean, with complex social structures between groups and individuals.
By contrast the dolphinarium facility at Palmitos Park has a total surface area of just 3000 square meters divided into 3 pools, and surrounded by seating for up to 1500 people. 6 different species are kept together in these tiny spaces, filled with water likely to be chlorinated and much less suited to these sensitive and immensely intelligent creatures than their native sea water.