Granting of licenses

An electric company requested license to install an underground line that would connect a hydroelectric power station to the distribution network. The route passed through protected land . The company began construction before obtaining the permit and the city council ordered to suspend them provisionally.

The company went to court. Its main argument was that, since the city council had not responded to its request , the license should be understood as granted by positive silence . If that interpretation was not accepted, it requested at least that the city council respond expressly. The court that examined the appeal ruled in its favor regarding the license, but the city council appealed to the Supreme Court (TS).

The TS reached the opposite conclusion . In a request like this, both the rules regarding urban planning licenses and the general rule that establishes negative silence for activities capable of harming the environment must be taken into account. Simply put, the lack of response does not allow to assume the permit when that environmental risk occurs.

There was a favorable report stating that the installation was compatible with urban planning. But that only cleared the urban issue; it did not eliminate the possible impact on the environment . The line crossed specially protected rural land, and both the works necessary to place it and the installation itself could cause damage .

Neither would the meaning of silence change with an environmental authorization or an environmental assessment favorable since those instruments examine the effects of the project and can establish measures to reduce or compensate them. To apply the rule of negative silence, it is not necessary to demonstrate that the damage is going to occur with certainty; it is enough to consider the type of activity and the characteristics of the place.

Thus, the TS annuls the ruling that had granted the license as obtained and confirms the suspension of the works. This does not mean that the city council can remain silent; it must issue an express response to the company's request.