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What you should know about town planning in Spain

It is known by all that Spanish town planning is in a deep crisis. The aspects that have led to this situation are varied: the search for municipalities additional funding of public services, which has produced, criminal behaviors by the local politicians and civil servants, the absence of effective instruments of coordination between regional and the State jurisdiction; the narrow scope of the State in this area, individual local authority actions without prior planning, etc.

Focusing the problem in the sector of tourism in its wider sense, town planning policies developed in Spain has provided many economic benefits in the short and long term, but has demonstrated to be clumsy and inept in contributing to a comprehensive and sustainable model.

 

For property developments to be user friendly, economic, ecological, culturally and socially acceptable, must start from a comprehensive territorial planning. If we analyze this issue from the visitor point of view, looking at sectors such as town planning, tourism, natural and historic environment, coastal management, etc we will quickly find that Spain has a fragmented autonomous territorial system that impedes the system to function correctly.

 

Rivalry between different departments of a same Regional Administration.

This idiosyncrasy is taken to the absurd when we can even detect rivalry between different departments of a same Regional Administration. There is a flood of regional and state laws on environmental, technical, urban planning and local regulations, and all of these bills and regulations change every four to eight years, needing the professional planner to make a continuous effort just to keep updated.

 

Having said all that, I also believe that newcomer to Spain needs to make an attempt to understand the Spanish peculiarities of planning laws.

 

A major difference which in my experience predisposes the Expat to enter in swampy ground is the figure of the property developer. While in the UK the Local Planning Authority (LPA) undertake the responsibility to provide the necessary infrastructure needed for a housing estate, in Spain this task is left to the property developer to make available that infrastructure which must be first fully specify in an Urbanization Project (Proyecto de Urbanización). These subtle differences entail a number of repercussions which affect the property buyer o final user.

 

As the process of obtaining planning approval proceeds is very extensive, each plot on the future development inherits a charge which is proportional to the total cost of all the future infrastructure shown on the previously approved Urbanization Project or (Proyecto de Urbanización), these charges are meticulously set out in a Restructure Project (Proyecto de Reparcelación) which requires to be approved by the local authorities before planning permission is granted. Consequently if any one purchase a plot of land during this process, is automatically converted into a property developer i.e. the plot of land has acceded to the proportional charge of the entire infrastructure until it that infrastructure is executed and most important, it has been accepted and received by the local authorities.

 

Such incident is difficult to occur in the UK.

Such incident is difficult to occur in the UK since the cost of a plot of land o a building for that matter has already been implemented with the cost of the future infrastructure that the local planning authority will undertakes and works like this:

Under Section 106 (S106) of the Town and Country Planning Act 1990 a local planning authority (LPA) is allowed to enter into a legally-binding agreement or planning obligation with a landowner with the granting of planning permission. The obligation is termed as Section 106 Agreement.

 

This agreement is a way of delivering all that is necessary to make a development acceptable in planning terms. They are increasingly used to support the provision of services and infrastructure, such as roads, infrastructures services, recreational facilities, education, health and affordable housing.

 

The scope of such agreements is laid out in the government’s Circular 05/2005. Matters agreed as part of a S106 must be:

  • Relevant to the planning proposal.
  • Necessary to make the proposed development acceptable in planning terms.
  • Directly related to the proposed development.
  • Fairly and reasonably related in scale and kind to the proposed development. 
  • Reasonable in all other respects.

A council’s approach to securing benefits through the S106 process should be grounded in evidence-based policy.

The Spanish Land Law (Ley del Suelo) regulates the rights and obligations that all owners have on any type of land in Spain they may posses. It is the cornerstone of town planning, as it regulates the right to build and the metrology to calculate any land value. The first Spanish land law was approved in 1956 and most recently in 2008.

 

 

Although the main attributions of planning have been delegated to the regional governments the basic rights and obligations are found in this Ley del Suelo of 1998. We will explore this an other town planning laws in future issues.

The Spanish Land Law of the 20th of June of 2008 (Ley del Suelo 2/2008) classifies all the Spanish territory in two different categories according to the intended use and they are: rural land or urbanized land (Suelo Rural and “Suelo Urbanizado").

 

In previous Land Laws, rural land, was known as “rustic land” (suelo rústico) and many people still use that old term, but to all purposes it means the same, land without planning permission.

 

Rural land (Suelo rural or suelo rústico)

Land classified as rural are:

Any undeveloped land which may be transformed by planning into urbanized land. From this class are excluded any land protected by public domain or that it has an inherent cultural heritage, which must be subject to protection under the approved regional town planning regulations because of their high ecological, agricultural, forestry and landscape values as well as those which may happen to be hazards zones, including those areas capable to be flooded or liable to suffer any serious natural catastrophe such as river banks etc.

The rural land will be used in accordance with its nature, i.e. for livestock, forestry, hunting, etc. Any division into plots it’s prohibited.

Exceptionally, specific buildings are allowed if it is proven that its use will be of public interest by being a contribution to social interests and/or in aid of rural development or because they have to be deployed in the middle of a rural zone. The law takes into account for instance services such as a camping site which because of its nature has to exist in a rural area or a skiing resort which it is proven to be of public interest and because of its character has to be on the top of a mountain etc. The only residential buildings allowed in this category of land are those required by the owner to live to procure proper agricultural farming. Normally the LA determine the extension of land required to allow a house to be built in and depends on the region and whether the land has irrigation in which case tend to be around 10.000m2 and when the land hasn’t,  the extension required goes up to 25.000m2.

Proceedings to be followed to obtain planning permission.

Any new development, which require planning permission together with the associated infrastructure and public facilities, must undergo the process of obtaining all the different planning approvals and it process conclude when all the infrastructures are built according to the urbanization project (a project which must specify all roads, services such as street lighting, drinkable water services, sewerage and now days telecommunication facilities) and is handed over to Local Authorities (LA) together with all public areas within the development. I must point out here that the (LA) have to accept them. I have mentioned this last part in previous articles because of it’s implication, in the sense that if the (LA) do not accept the infrastructures built by the developer for the reason normally because is not up to the require standard, the planning process is not considered finished and any one buying a property in that development may assume part of the developer’s responsibility.

 

Duties of the developer with the LA.

The developer has to hand over to the LA free of charge the land reserved for roads, open spaces, green areas and other public facilities included in planning project.

To provide to the competent authority free of charge, a percentage of buildable plots within the developed area. In general terms, the percentage referred to above may not be less than 5 per 100 not more than 15 per 100. In most regional Land Laws this percentage has been established into 10 per cent.

It is imperative to obtain an environmental assessment which is done by presenting to the LA an environmental project. This project is really to prove that the development has sufficient environmental sustainability and shall include a map of natural hazards within the land in question.

In the consultation phase, the developer should achieve at least the following reports:

From the Hydrological Administration showing the existence of sufficient water resources required to meet new demands and confirmation that the project does not invade any public water domains.

A positive report must be obtained from the Maritime Public Administration if appropriate, showing the distances maintained from the cost line by the proposed development.

Another report from the authorities leading with roads about the condition and the impact such development will have on the capacity that such infrastructure will have to absorb the proposed development.

Within this law there are specific methods to value the land rural or urbanized, normally these methods are used when a development have more than one owner involved. Each additional owner involved in the resort normally implies that the complexity of the project is increased exponentially as normally they don’t agree on the valuation of their own land; I have been involved in projects with more than fifty different land owners.

When the project involves the construction of golf courses or sewerage treatment plants or large infrastructures projects permission must also be obtained for an environmental impact project which normally takes about two years to obtain full approval everything going well.

 

Following the second part of this article on town planning we will explain the different stages of the main planning laws in Spain and its hierarchical structure. For that purpose I have selected the region of Murcia as an example, but to all purposes it could be applied to any regional community in this country.

 

As we described last week it is the Ley del Suelo (The Land Law) the national first, and the regional Land Laws second, the corner stone of all planning instruments and therefore any General Urban plan or Partial Plan must not contravene these laws and hierarchically any Detail Study must not change any General Plan or Partial Plan.

Following the second part of this article on town planning we will explain the different stages of the main planning laws in Spain and its hierarchical structure. For that purpose, I have selected the region of Murcia as an example, but to all purposes it could be applied to any regional community in this country.

 

As we described last week it is the Ley del Suelo (The Land Law) the national first, and the regional Land Laws second, the corner stone of all planning instruments and therefore any General Urban plan or Partial Plan must not contravene these laws and hierarchically any Detail Study must not change any General Plan or Partial Plan.

The main planning instruments used in any Town Hall (TH) are in order of importance:

Plan General de Ordenación Urbana (General Urban Plan)

Plan Parcial y Plan Especial (Partial Plan and Special Plans)

Estudio de Detalle or (Detailed Study)

Before these planning mechanisms are implemented they need to be approved and it is important to know the process because it is during this process when citizens can object and put forward proposals that may consider relevant or just to defend they private interests.

 

In case the TH disregard those proposal a door has been opened to take the matter to court if required. Let us start with the General Urban Plan which is where residents are informed whether it is allowed to build or not on any zone of the borough. In case that it is permitted, it would also notify of how many square meters are permitted and will lay down the conditions of what it is allowed to be built.

 

After the General Urban Plan is prepared is presented in a TH Plenary Session where it may be granted initial approval and then is ready for public information for a period of at least two months, this fact should be advertised in the official regional gazette known as (Boletín Oficial de la Región de Murcia, BORM) and published in two major regional newspapers to let citizen to attend to the TH and analyze the Plan and present any claims they think fit. Due to its relevance on the locality information on approval of a General Urban Plan are published and commented on local newspapers so it is advisable to be kept updated by consulting regularly local news papers.

 

Simultaneously the TH will obtain from the various public bodies those reports that are prescribed by law. They will need to grant a hearing to the neighboring municipalities and the Regional Directorate General responsible for urban planning who should carried out a report within two months.

 

In view of the public information input obtained, i.e. demands presented by citizens, reports obtained from the various official regional departments the TH Plenary Session will approve the amendments provisionally if they consider it fit. If the changes which have been put into practice meant a substantial change to the plan initially approved, it will open a new period of public information, of one month, before presenting it for approval.

 

To this end, substantial change means altering the pattern of the urban development, but no specific alterations of its components.

The TH refers a complete dossier to the Regional Department for Public Works, Housing and Transport to attain the final approval being this body the regional authority the one to finally approve the Plan.

 

The General Directorate of Planning, would be technically and legally advised via a report prepared by the Planning Coordination Committee, within three months since receipt of the complete file from the TH.

 

The General Directorate of Planning could propose one of the following procedures.

Final approval of the Plan.

Final approval, could be subject to the correction of some deficiencies found, (this is normally the most common resolutions) where there are some changes to be made and those changes are of little relevance

A final approval of the plan, is suspended on some specific areas, provided that the approved Plan is mostly consistent, independently of the future solution provided by the TH to the areas that are not approved.

Approval is suspended due to important deficiencies, specifically if it breached the Land Law or for any reason affects the regional plan model. In that case the TH, would require to set off through the process of new public information procedure when rectification has been completed.

Any denial of approval of the Plan by the General Directorate of Planning can only be based on finding elements contrary to planning legislation or regional planning instruments, which if corrected would change the plan to such an extent that would make nonsense of the presented plan.

One of the main reasons for these many public publications is due to past court cases where no publication has been made and individual citizens have been able to obtain court sentences making a town General Urban Plan illegal since he has had not been informed and therefore been not able of defending his interests. Hence the long periods it takes for General Plans to be finally approved.

 

One of the main concepts that should be understood about Spanish planning that would help us not to make expensive mistake at the time of buying a plot of land to build a home is the Classifications of land known in the town planning jargon as Clasificación del suelo.

 

The land is classified in Spain in three main categories:

Urban land, land able to be urbanized and land forbidden to be urbanized. (Suelo urbano, suelo urbanizable y suelo no urbanizable).

 

 

There is fourth classification that is not much used but it is the land where the infrastructure is located, i.e. roads, water treatment plants etc that should comply to a minimum standard specify in the planning norms.

 

What is urban land (Suelo urbano)?

For a land to be fully classified as such it must comply with any of the following:

Must have roads, drinking water, sewerage services and electrical supply with sufficient capacity to serve the existing buildings and for those planned in the future.

Any zone which two thirds of its area allowed by planning law is consolidated by existing buildings.

These concepts are important to be understood because a plot of land purchased and can be verified that comply with any of the above descriptions the town hall should give planning permission to any project presented if the project complies with the local planning regulations.

 

What land is allowed to be urbanized (Suelo urbanizable)?

This land becomes apt to be built once that planning consent has been granted and complies with all the regulations and charges instructed by the planning regulations and is called “Suelo urbanizable”.

Normally this category of land has to have a (Plan Parcial and  Proyecto de Urbanización) designed and approved by the local authorities before is permitted to build. The Plan Parcial is where the planning regulation for that area is stated, blueprint of roads are set and in fact the whole residential lay out is planned. The “proyecto de urbanización” is more technical type of project where the full specifications for roads, water, sewerage, drinking water and electrical supplies are set out although all designs must comply with the local and state norms and regulations.

In this land no buildings are allowed and no planning permission should be granted until all the planning duties are fulfilled and the necessary infrastructures have been built.

Some times building licenses are granted if the infrastructure is built simultaneously in this case the Town Hall must obtain a bank guaranty based on the cost of the infrastructure total costs.

It is in this type of land where most of the problems occur, well because all the planning procedures have not finished or the necessary infrastructure is not completed.

It is always advisable to obtain a planning certificate from the town hall before you venture in purchasing any plot of land or homes in such a situation.

 

How much land is needed to go through the process of obtaining planning approval?

There isn’t a minimum specified by law, but should be sufficient to as to ensure "technical and economic independence," or, if this is not possible, at least, to "ensure the equitable distribution of planning benefits and charges among those affected. In short, the area of the proposed action is free, provided that the proposed model assumes its own urban charges i.e. sufficient to provide park areas, spaces for public buildings, necessary infrastructure and to ensure equal distribution among all owners etc. All this is clearly specified in the planning regulations.

What land is not allowed to be urbanized (Suelo no urbanizable)?

Any of the land which doe not fall in any of the above categories is land without planning permission or “Suelo No Nurbanizable”. In this category of land constructions are normally not allowed by law but in certain conditions a building or a house is permitted if the plot has a minimum size normally 5.000m2 if the land has water available for irrigation and 15.000m2 if not, however these sizes varies depending of the local regulations.

As a general rule the only buildings that have been admitted have been single-family homes for the proper care of agricultural, forestry and livestock of the area in question, provided no additional buildings are built around so as not to constitute an urbanization.

There is a sub category in this type of land and that is land with special protection (Suelo de Protección Especial), normally in this type of land no planning permission is granted and exceptionally a construction is allowed but it has to be proven that the construction of such building is will mean an improvement on the environment and/or a benefit for society, for example a skiing station at the top of a special protected area.

 

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