Administrative consultation

A company wanted to set up a fuel supply facility installation to supply fuel prior feasibility consultation prior feasibility study authorized to be authorized and what requirements would need to be met, in order to avoid wasting time and money on procedures that would end up leading nowhere.

The Directorate General of Roads responded with an unfavorable report . The company submitted allegations , but the Administration maintained the "no". So, the company went to court with an administrative appeal. However, the TSJ of Madrid dismissed it, telling them that that response to the consultation was not an appealable act , as if it were just guidance without real effects.

The matter reached the Supreme Court (TS) because the important issue was whether it is possible to appeal independently that previous response, even if it is prior to the formal request for authorization. The key was not so much in whether the consultation is voluntary or "outside" the ordinary procedure, but in something decisive like its binding nature (expressly provided for in RD 1812/1994 art. 70.9). That is, the response is given by the same body that will later have to grant the authorization and, if the subsequent project maintains the same technical characteristics, that response obligates the Administration.

Therefore, if the response is negative , the interested party already knows in advance that, in those terms, the authorization will be denied . The Supreme Court concludes that it is not just information "without consequences" since, even though it does not formally close the procedure or prevent requesting the authorization, it directly conditions the future decision As a result, it falls within the type of actions that can be challenged before the administrative courts.

The TS establishes as a criterion that a binding response to a prior feasibility consultation is challengeable independently.