The Administrative Chamber of the High Court of Justice of the Region of Murcia (TSJMU), forces the uprooting of 4.9 hectares of citrus trees in the integral protection zone of the Mar Menor.
The Administrative Chamber of the High Court of Justice of the Region of Murcia (TSJMU), in an order notified today, orders the restoration to its natural state of an area of 4.91 hectares cultivated with trees in production, specifically citrus trees, in the area of Casa de lo Pereas, which are in Zone 1 of the Law of recovery and protection of the Mar Menor.
It thus rejects the suspension requested by the company that exploits the land, as a precautionary measure, in the contentious administrative appeal lodged against the Order of the Regional Ministry of Water, Agriculture, Livestock, Fisheries and Environment of 8 February 2021 which requires the reinstatement of irrigation to its natural state, according to sources from the TSJMU in a statement.
Reinstatement of the illegal irrigated land to its natural state, which, as expressly justified in the appealed resolution, is justified for reasons of environmental protection, in the autonomous competence to control pollution caused by nitrates of agricultural origin.
The Order gives a period of two months for the submission of the project for the restitution of the land and fixes the maximum period for implementation at six months.
The contested act further explains that it is obliged to make restitution for having carried out, without authorisation from the basin authority, a private use of water on land which is in Zone 1 of Decree-Law 2/2019, on the integral protection of the Mar Menor and of Law 3/2020, on the recovery and protection of the Mar Menor. Specifically, it recalls that, by Resolution of the Confederación Hidrográfica del Segura, of October 2019, “a fine of 3,000 euros was imposed on the appellant for private use of public waters without authorisation/concession”.
The magistrates, after analysing the arguments put forward by the appellant, reasoned that “even considering the existence of possible damages, they would be compensable in the event of a possible favourable ruling, as they are quantifiable economically and the reparation would be obtained with the valuation of what has been uprooted and the payment to the interested party of the corresponding amount”.
Although “this court does not agree with the party’s allegation that the uprooting of the trees could cause irreparable damage, as land that has not been irrigated for two years – a situation that, in principle, will continue and may be definitive – should not be at its optimum production level”.
In addition, although it does not make a pronouncement because “it is a matter of substance that cannot be judged in this precautionary incident”, the Court considers the allegation that the plantation does not pollute to be “generic” and “unsupported by any data”.
The same can be said – the magistrates add in the decision – of the possible damage to third parties or the Mar Menor itself, in the event of heavy rainfall, when the appellant argues that “the existing trees help to retain the water and the different elements that they carry, preventing them from going to the village of Los Nietos and finally to the Mar Menor”.
As for the interest alleged by the defendant, “it is sufficient to read the contested decision to verify that the aim is to reduce the pollution caused by nutrients of agricultural origin and their effect on the protected areas in the Mar Menor and its surroundings, which are currently seriously deteriorated”, the decision underlines.
Thus, after analysing the case law that specifies the requirements necessary for the adoption of precautionary measures and weighing up the conflicting interests, the Court “considers that compliance with sectoral water regulations, and, fundamentally, the protection of the Mar Menor, prevails over the private interest of the appellant in continuing to maintain a farm when, by final decision of the competent water administration, irrigation has been prohibited for the plot because it is not covered by a water use right”.
The court therefore decided not to suspend enforcement of the decision challenged in the present contentious administrative appeal and ordered the appellant company to pay the costs.
The decision is not final and an appeal for reconsideration may be lodged against it.