IMPORTANT NOTICE : The original text of this law it’s published on the Boletín Oficial del Estado. This translation it’s only for informative uses. In case of discrepancies only the oficial and Spanish version, it’s valid.
THE PRESIDENT OF THE BALEARIC ISLANDS
Let it be known to all the citizens that the Parliament of the Balearic Islands has approved and I, in the name of the King and in accordance with what is established in article 48.2 of the Statute of Autonomy, intend to promulgate the following:
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Law 2/2014, of 25 March, on land use and planning (LOUS) established for the first time a general regulation of urban activity in the autonomous community of the Balearic Islands. For its codifying purpose of a regulation until then fragmented and dispersed, the aforementioned law took an important step in the evolution of urban legislation in our community. However, it left out of its scope the regulation of rustic land, which meant the renunciation of a unitary regulation of the three types of land, which must be a basic objective of any planning law. For that reason, the present law incorporates both the urbanistic regime of the rustic land, as well as the aspects of planning and management relative to this class of land, without entering in the details, now foreseen in sectorial urbanistic laws, that are more proper of the regulatory development. Its name, Ley de urbanismo de las Illes Balears (LUIB), aims to reflect the purpose of fully regulating this activity. As a technical law delves into multiple concepts in the three main axes of planning, management and discipline, which will facilitate its use by the various agents involved in the urban field.
The approval of Decree-Law 1/2016, of 12 January, on urgent measures in the field of urban planning, which meets one of the objectives of addressing the deregulation carried out in the last legislature in this area, made it possible to assume the commitment to revise in depth the Land Law without peremptory requirements, but with a maximum period of two years for its approval. Starting from a premise of maximum consensus in its preparation, with the ultimate aim of making this basic law a lasting law, eight technical working groups were established, organized around the usual titles of the different regional land laws, with the participation of more than 60 technicians and professionals from all fields of urban and territorial subject matter of the different administrations, autonomous, island and local entities, organizations, associations and professional associations. These roundtables were held over eight months last year and, at the same time, open days were held for the entire urban world on different specific topics with the aim that professionals of recognised prestige could have an impact on these matters. The final drafting of the draft law has been carried out with the participation and agreement of technical and legal representatives of all the island councils, given their responsibility in the field of urban planning in the current framework of competence.
When dealing with the reform of a law, the decision between modifying the existing law or processing a new law has to be taken following the recommendations of legislative technique. In our community, the Guidelines on the form and structure of preliminary drafts, approved by the Governing Council of the Balearic Islands on 29 December 2000, strongly favour the option of enacting a “completely new” law, in the case of extensive or repeated modifications, while the modification technique will be used to redraft parts of the previous law, add new provisions, delete part of the existing ones and extend or suspend the validity of others. The same criterion is applied at the State level, according to the Normative Technical Guidelines approved by the Agreement of the Council of Ministers of 22 July 2005. In our case, the entity of the modifications introduced in the planning system, the novelty of numerous precepts in the matter of urban management and the new structure of the regulation of building and urban discipline, together with the incorporation of important new substantive precepts, undoubtedly support the option for the approval of a new law, without prejudice to the fact that all the precepts of the previous one, which it has not been considered necessary to modify, are maintained.
The LOUS configures urban activity as a public function, in accordance with a traditional principle in Spanish urban planning, but inserts its regulation in the “environmental normative block”, made up of the rights to enjoy an adequate environment, decent housing and historical, cultural and artistic heritage. The environmental normative block, presided over by the principle of sustainable development, will constitute the structural axis of the territorial policy and will inform the rest of the public policies that affect the use of the territory or other natural resources. The articles of the LOUS reflect this approach, which is clearly in tune with the change of course towards sustainable urbanism that was brought about by Law 8/2007, of 28 May, on land, and the consequent orientation of public policies towards the rehabilitation of the existing urban fabric. The change of orientation was accentuated by Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal, which provided relevant legal instruments for the implementation of actions on the urban environment, but whose detailed regulation corresponds to the regional legislators. The LOUS, although it took into account the innovations introduced by state legislation, did not develop them sufficiently to guarantee their application without the risk of uncertainty and, therefore, without undermining legal certainty. Filling this gap is one of the basic objectives of this law, but it is not the only one, because it introduces important innovations in the three major traditional axes of urban regulation: land regime and planning, management and urban discipline.
In terms of planning, the LOUS continues to be anchored in the conception of the general plan as an omnicomprehensive instrument, which contains detailed planning on urban land and whose elaboration is a very complex and lengthy process, as well as its revision. From the procedural point of view, the complexity has been accentuated by the unstoppable proliferation of mandatory reports and in some binding cases, imposed by state and autonomous sector legislation (roads, coasts, ports, airports, mobility, landscape, historical-architectural and archaeological heritage, accessibility, sustainability and, above all, strategic environmental assessment). Almost all sectoral laws, aware of the importance of general municipal planning as an instrument of comprehensive planning, intend that their requirements should be reflected in it and, to ensure that this is the case, they attribute the control of the urban plan through their report to the body in charge of its application. While it is true that these reports fulfill a coordinating function, it is no less true that they multiply the difficulties of the processes of processing the planning.
To the great complexity in the formulation must be added the growing social sensitivity due to the attribution of differentiated capital gains in the different soils ordered by the plan, which provokes in the periods of public information belligerent citizen demands derived from alleged comparative grievances. In fact, most of the allegations presented in this procedure correspond to the owners of the land, in defence of their respective interests, while very few are formulated by public institutions in defence of the general interests they represent. As a consequence, city councils avoid the revision processes, which usually last at least eight years -that is, more than two legislatures- and generally opt for the path of continuous specific modifications, which end up distorting the coherence of the original plan and generate differentiated situations in the treatment of juridical-urbanistic determinations (in particular…), the modifications that imply reclassifications or specific land reclassifications), which revives the impression of comparative grievance and accentuates the legal insecurity before the possibility, not at all remote, that the judicial organs annul these modifications because they consider them to be covert revisions or, simply, without foundation.
In order to correct as far as possible the described situation, this law, starting from the already existing distinction between structural and detailed planning determinations, distinguishes two planning instruments, one (the general plan) for structural determinations and the other (the detailed planning plan) for the detail and development of the former. Thus, in addition to lightening the content of the general plan and focusing it on the definition of the territorial model, it also clarifies the delimitation of competences between town councils with a population of more than 10,000 inhabitants and island councils in the processes of approval of planning: these have to control structural planning (determinations of supra-municipal-territorial scope), while detailed planning (determinations of municipal scope, mainly urban) is reserved for municipal autonomy.
The new regulation of the municipal planning system offers important advantages. As far as the general plan is concerned, its documentation is simplified (general memory, global town planning regulations and only large-scale plans) and the understanding of the proposed planning model is facilitated by establishing only the structural determinations. This can help to encourage the presentation of claims more focused on the general interest, while deactivating the claims of individual landowners in demand for greater capital gains from the classification and classification of their land. For their part, detailed development plans can be formulated with great flexibility, either including all the detailed development for the three classes of land, or processing several independent plans, but coordinated with each other, depending on socioeconomic and urban demands and criteria of political opportunity. They can be drawn up for very specific areas, such as the historic centre, the regulation of extensions, the development of a residential or tourist sector, etc., and can be easily modified, as it will not be necessary to alter the general plan.
In terms of urban management, the LOUS was certainly skeptical in its forecasts. It regulated the classic systems of action (compensation, cooperation and expropriation), and configured the first two as modalities of reparcelación, and some procedures (very limited) intended for building and building rehabilitation on the basis of the duty to build and conserve buildings, but without further development or incorporating some relevant techniques already provided for in other autonomous legislation. There was, therefore, a significant void due to the absence of instrumental novelties derived from recent state legislation, especially those affecting intervention in the consolidated city. The approval of the LOUS followed the recast text of the State Land Law 2/2008, of 20 June, and Law 8/2013, of 26 June, on urban rehabilitation, regeneration and renewal, but surely during the process of drafting and processing of the autonomous law were other main concerns, so in its articles only reference was made to state legislation, without developing their contributions. The present law contains this normative development, and adapts it to the territorial peculiarities and to the economic and business, public and private activity of the Illes.
Specifically, due to their importance, the following five instrumental techniques should be highlighted: economic viability reports, economic sustainability reports, endowment actions, real estate complexes and concerted replacement execution. The characteristics that the new law establishes for each technique are briefly explained below:
a) The purpose of economic viability reports is to analyse the economic profitability of private initiative urban development actions that involve an increase in use over that attributed by the previously existing planning; that is to say, reclassification or land reclassification processes which, by virtue of specific revisions or modifications to the planning, involve an increase in added value. The methodology consists of carrying out a comparative economic study of costs and income applied to the two situations, the initial and the proposal, which will allow the capital gains generated by these processes to be revealed. Bearing in mind that these studies, with their economic results, have to be made public, a hitherto unknown transparency will be achieved, since it will be possible to contrast, in the sight of all, whether very different economic returns are produced between soils located in similar situations, which will make it possible to determine, on the one hand, the percentage of the surplus value that has to correspond to the current administration and, on the other hand, to balance, with egalitarian criteria, the attribution of urban development uses to the different owners of the reclassified or re-classified land. All this with the aim of hindering as much as possible possible corruption processes that have caused such a bad reputation to Spanish urbanism.
b) The economic sustainability reports are aimed at avoiding negative impacts on public finances by achieving a balance in the ratio of tax revenues and maintenance costs caused by the transfer to the administration of public land and infrastructure endowments that it receives in the framework of the production process of the city. The objective is, on the one hand, to make it impossible to generate deficits in the municipal management of these public lands and, on the other hand, to rationally dimension the areas of urban execution, by having to adapt them to the capacity of absorption by the market of the real estate products derived from them, in order to avoid the appearance of “ghost towns”, urbanised spaces but without buildings or inhabitants.
c) The purpose of the endowment actions is to guarantee the maintenance of the balance between use and public endowments in the evolution of urban land, with the aim of avoiding the previous growths with endowment deficits that, unfortunately, were taking place in the consolidated city. In this sense, the technique implies that any increase in use that is attributed to one or more building plots on urban land in relation to that established by the previous planning, will involve the provision of a reserve of public endowment land that meet the social demands arising from new or new inhabitants or users generated by this increase in use, and are linked to the joint management of both building plots and public endowment. This makes it possible for the administration to obtain, free of charge, these public endowment lands in the consolidated city, under a system of equidistribution between the beneficiaries of the increased use, and ends, once and for all, with the dramatic expropriations, which have caused so much damage to the always weak local farms, as the only possibility of obtaining the necessary endowment lands to satisfy the demands of the population in the consolidated urban areas.
d) Real estate complexes allow the coexistence of public domain uses with private domain uses compatible with the previous ones, located in the same building. This facilitates the obtaining and disposition of public endowments (which can be obtained for the public domain in built surface) and promotes urban sustainability and the mixture of uses in the consolidated city, although this legal possibility must be used with caution to avoid denaturalization and unduly attribute private uses to those in the public domain.
e) Concerted substitute execution is a technique aimed at the agreement between real estate property and developer-entrepreneur, always subject to strict public control. It can be applied to urbanizing actions of systematic reparcelación (development of sectors of land for urbanization or units of action on urban land) and also to building actions that have exceeded the deadlines set for building or rehabilitate. In the former, when the reparcelación adopts the modality of cooperation, the administration acting may select, by competition, a private entrepreneur (entrepreneur-urbanizer) to execute the urbanization on behalf of the administration and under its direction and control, and will pass the costs of production on to the people owners. These will receive, in this case, in the reparcelación, the totality of the building plots that correspond to them in proportion to their rights, and the entrepreneur-urbanizer will receive, in exchange, a management fee determined in the competition. A second modality, of great interest, consists of the entrepreneur-urbanizer assuming the costs of production in exchange for building plots of equivalent value to the costs materializable in the reparcelación, consideration that will also be determined in the contest. In building actions, when the established deadlines for building or refurbishment have been exceeded, it is also possible to select a private operator (businessman-builder or refurbisher) who does not need to become a private beneficiary of the possible expropriation of the property (for breach of the duty to build/rehabilitate), assumes the power to build/rehabilitate the property by means of a public tender carried out by the administration subject to a strict set of conditions that will establish, at least, the maximum building-construction costs, the maximum selling prices of flats or rents, the percentage of subsidized housing and other extremes necessary to ensure that the building/rehabilitation is carried out under the direction and control of the administration; the action will be financed through the assumption of production costs for the entrepreneur in exchange for flats of value equivalent to the costs, to be formalised by means of the corresponding distribution of benefits and charges under a horizontal property regime, and the percentage of the consideration will be fixed in the corresponding tender; a formula not far removed from the practice of payment on site, so common in private real estate traffic, and which offers great operational advantages for the exit from the crisis and sustainable intervention in the consolidated city.
In short, the innovations introduced in urban management improve transparency in reclassification and land reclassification procedures, strengthen public participation in an appropriate and fair proportion in the distribution of the capital gains generated by urban action, encourage consultation processes between owners, entrepreneurs and administration in proportion to the rights that each represents and, in short, seeks to ensure a balanced urban growth endowed and sustainable in economic, social and environmental terms.
The discipline of urban planning, which has always been understood as the set of sanctioning measures and the re-establishment of legality and physical reality that must be adopted in the face of urban infractions, is encompassed in a single title, as opposed to the previous law, where it appeared divided in two.
The deficient systematics and terminology of the LOUS, which continuously mixed concepts such as the protection of urban legality, the restoration of the disturbed legal order and the replacement of the altered physical reality, obliges us to redo the entire content of this title.
It is organised into five large blocks: town planning inspection, town planning infringements, sanctions corresponding to town planning infringements, licences incompatible with town planning and procedures in matters of town planning discipline. It is made clear that there are only two procedures before an urban infraction: the sanctioner and the re-establishment; and that, therefore, the re-establishment of both legality and altered physical reality are part of a single procedure. In contrast to the unclear system of the previous law, a specific sanction is established for each infraction.
The demand for legal security of the population and urban operators requires the express regulation of many issues that generate conflict in matters of urban discipline. The new law resolves, among others, the legal insecurity of the precedent on the existing relation between the sanctioning and restoration procedures, as well as on the urban infraction by the use of the flight of the lands without enabling title, one of the great pending issues historically in the urbanism of the Illes.
The insular councils and the supramunicipal agencies and consortiums come to assume all the competences in protected rustic ground of the coastal ANEI, ARIP and APT, by their supramunicipal origin. It makes it possible for island councils and supra-municipal agencies and consortia to be subrogated in the municipal competence of subsidiary execution and imposition of coercive fines for demolition orders issued by municipalities.
In view of the evident urban indiscipline that has been historically produced in the Balearic Islands, it is necessary to introduce numerous measures to increase the effectiveness of the administration, always with full respect for the rights of defence of the alleged offenders. Administrative responsibility is introduced for the authorities and public offices which, with knowledge of the cause and having the possibility of preventing it, allow indiscipline.
It is regulated for the first time in the Balearic urban legislation the maximum term for the subsidiary execution of demolition orders. The execution of demolition orders is simplified, so that they are exempt from prior planning permission. Instead, a simple system similar to the presentation of execution projects is proposed: the demolition project is presented and, if the municipality does not resolve within one month, the deadline for executing the demolition begins.
The law is structured in 205 articles, distributed in a preliminary title and eight titles, sixteen additional provisions, fifteen transitional provisions, one derogatory provision and three final provisions.
The Preliminary Title, “General Provisions”, is divided into two chapters, devoted respectively to general principles and specific provisions and to administrative powers. Its basic content, of general principles of the law and very similar administrative powers, in most autonomous legislations, was the title of the LOUS that obtained the greatest unanimous parliamentary support, so that the alterations have been minimal. The criteria for interpreting the determinations of the plans have been specified and a maximum period has been set for the management assignment agreements.
Title I, “Urban development of land”, is divided into three chapters, which regulate the classification of land, the general concepts (basic urban development services, transformation actions and urban development) and the rights and duties of ownership, and includes those relating to rustic land, which did not appear in the previous law.
Its organization is completely changed, the different chapters are established according to each of the three types of soil, and each one of them introduces or innovates the one corresponding to the rustic soil, where the term of the rural nuclei is reintroduced. The escape route favoured by the LOUS for the urban classification of soils of net illegal gestation is eliminated. It also eliminates the incorporation of soils with this classification without counting as growth. In contrast to what is contained in the previous law on this subject, there is a hierarchical and systematic arrangement of the different urban development actions, both urban transformation and isolated, as buildings, in accordance with state legislation, which can be carried out on different types of land, and fundamentally affects those that are developed on urban land, given that the present urban development of the Illes is in the actions on the consolidated city and not so much in the production and use of new land. The concept of urban development, with all its modalities, with a long tradition in the urban world and therefore used by all, is recovered, and the more ambiguous and peripheral term used in the previous law of “weighted average buildability”, which appears in the state law for competition reasons, is eliminated. In this case, a didactic definition is introduced of the different types used, as well as the weighting coefficients that intervene in their determination. The timing and the way of quantifying these weighting coefficients, as well as the guarantee of updating the market values for their determination by means of a recognised valuation society, are affected.
Title II, “Urban planning”, because of the change of model of its most important instruments (a general plan, dedicated exclusively to structural determinations, and the creation of detailed planning plans, in the terms already explained), implies the practical renewal of its content, although it maintains the traditional structure, which also had the previous law, of its organization in five chapters: instruments; training and approval; validity, modification and revision; effects of approval and rules of direct application.
A period is established for the review of all general plans for their adaptation to the requirements of the new law and it is also obligated to submit in a single file, for initial approval, the two documents, the general plan and the detailed management plan or plans, as a starting point in this new planning model.
Title III, “Management and execution of planning”, builds on the structure of the previous law, but now includes a new chapter on urban planning agreements, which the LOUS regulated in its preliminary title. The other five chapters are devoted, respectively, to general provisions, systems of action, reparcelación, system of expropriation and direct occupation. The most important novelties, which we have already outlined, refer to actions on the urban environment in order to facilitate their implementation.
In Title IV, “Intervention in the land market”, no modifications are introduced. On the other hand, many are incorporated in Title V, “Exercise of powers relating to the use and construction of land”. The most important ones consist of the regulation of the procedure of forced and concerted substitute execution by means of the tender for the awarding of building rehabilitation programmes, as well as, and above all, the addition of a chapter on interior reform and urban renewal actions, with completely new articles that regulate these actions in detail. Likewise, the articles corresponding to provisional uses and works, and to unsuitable and out-of-planning buildings, whose location in the planning title of the previous law did not seem to be the most appropriate, have been moved to this chapter dedicated to building.
Title VI, “Compulsory expropriation due to urban planning”, is now divided into four chapters, improves its structure, highlighting the consideration of expropriation of isolated actions, and substantially alters its content, except in the last chapter, which introduces and regulates the composition and functions of the Expropriation Valuation Commission of the Balearic Islands, a body that replaces the Provincial Expropriation Jury.
The content of title VII, “Preventive intervention in building and land use”, is separated from the corresponding LOUS, dedicated to urban discipline, for the systematic reasons explained above. It maintains, in substance, the regulation of the previous law, with some relevant modifications, such as the possibility of a second extension for the completion of works and the regulation of the license of occupation or first use.
Finally, Title VIII, “Town planning discipline”, is structured into five chapters: town planning inspection, infringements, sanctions, licences or execution orders incompatible with town planning and town planning discipline procedures. The detailed regulation of the procedure for restoring urban legality, the more precise typification of infringements and the attribution of powers for their imposition should be highlighted. Special mention should be made of the classification as an infringement of the inactivity of the authorities and public officials who do not adopt measures to react to illegal actions and allow the infringements and sanctions to lapse, or the corresponding procedures to lapse.
The additional provisions have been duplicated with respect to those already included in the previous law, among which are those relating to the possible reconstruction of demolished buildings on rustic land affected by the execution of a public work, and, above all, the recovery of municipal territorial areas that had been removed from the right of some municipalities to decide on their own territory, cases such as the UIB and Parc Bit in Palma.
The transitional provisions regulate the impact of the law on existing planning instruments and in the process of coming into force, the application of the precepts on urban discipline, the regime of constructions, buildings and facilities without enabling title and that of land classified as urban, but which are factually in the basic situation of rural land.
Finally, in the derogatory provision, in addition to the derogations coming from the action of the same law, other derogations have been added with respect to urbanistic norms already expired or that no longer had reason to be, in a work of normative cleaning.
General principles and specific aims
Article 1 Purpose of the law
The purpose of this law is to establish the general legal regime regulating administrative activity in the field of town planning in the Balearic Islands, and to define the legal-urban regime of land ownership in accordance with its social function.
Article 2 Urban development activity
1. The urban activity is a public function that designs the local territorial model and determines the faculties and duties of the right of ownership of the land according to its destination. It includes the planning, transformation, conservation and control of the use of land, subsoil and flight; urbanization and building taking into account the consequences for the environment; and regulation of the use, conservation and rehabilitation of works, buildings and facilities.
Urban development activity takes place within the framework and within the limits set by laws and land use planning instruments and in harmony with the objectives of sectoral programmes and policies.
The exercise of urban planning competences must guarantee, in accordance with the general interest, the objectives of improving the quality of life of citizens and sustainable development, two structuring objectives of public urban planning policies that involve the rational, responsible and supportive use of limited natural resources, among others, the territory, harmonising the requirements of the economy, employment, welfare and social cohesion, equal opportunities and treatment of women and men, new uses of time, health, personal safety, culture, identity and heritage, and protection of the environment, contributing to the prevention and reduction of pollution.
The activity of urban planning must always be motivated, must express the general interests it serves and will be governed by the guiding principles of social and economic policy established in articles 45, 46 and 47 of the Constitution, article 12 and title II of the Statute of Autonomy, and by those that define this law in relation to each specific field of action and other applicable regulations.
As a public function, urban planning shall not be subject to transaction.
2. Urban development activity shall include the exercise by the competent administration of the powers indicated below:
a) The formulation and approval of urban planning instruments.
b) The intervention of the exercise of the dominical faculties relative to the use of the land.
c) The determination of the form of management of the administrative activity of execution.
d) The execution, direction, inspection and control of the planning.
e) Intervention in the land market.
f) The control of land use and building, the protection of urban legality and the sanctioning of infringements.
Article 3 Purposes and powers of the urban activity
1. Public policies relating to the regulation, planning, occupation, transformation and use of land shall have as their common purpose the use of this resource in accordance with the general interest and the principle of sustainable development, without prejudice to the specific objectives attributed to them by law.
2. By virtue of the principle of sustainable development, the policies referred to in the previous paragraph shall promote the rational use of natural resources and harmonise the requirements of the economy, employment, social cohesion, equal treatment and opportunities, the health and safety of persons and the protection of the environment; they shall also contribute in particular to:
a) To materialize a sustainable and cohesive development of cities and municipal territory, rationalizing the forecasts of population capacity and prioritizing the completion, conservation, reconversion and reuse or improvement of already transformed and degraded soils, as well as urban compaction and rehabilitation, instead of new soil transformations, the dispersion of urbanization and construction outside the urban fabric. In this sense, the creation of new population centres will be avoided and the most valuable spaces and risk areas will be preserved from urban development.
b) To assume and specify the objectives and principles established in the European Charter for Territorial Planning.
c) The effectiveness of measures for the conservation and improvement of nature, flora and fauna and the protection of cultural heritage and the landscape.
d) Protect, in a manner appropriate to its character, the rural milieu and the preservation of the values of the soil unnecessary or unsuitable to meet the needs of urban transformation.
e) Carry out adequate prevention of risks and dangers to public safety and health and effective elimination of disturbances to both.
f) Work for the prevention and minimization, to the greatest extent possible, of air, water, soil and subsoil pollution.
g) Link land uses to the rational and sustainable use of natural resources, taking into account limited island growth capacity, scarcity of water resources and limitation of fertile soil.
h) Subordinate land uses and constructions, whatever their ownership, to the general interest defined by this law and, by derivation, to urban planning.
i) Delimit the content of the right of ownership of the land and the uses and forms of use, in accordance with its social function and public utility.
j) To avoid land speculation and to guarantee the availability of land for urban uses, a provision of adequate urban endowments and equipment and access to decent housing. The land linked to residential use will be at the service of the effectiveness of the right to enjoy a decent and adequate dwelling, a home free of contaminating immissions and in a safe, healthy and universally accessible environment. It will also promote social cohesion by regulating land use in such a way as to encourage the balanced coexistence of social groups, uses and activities.
k) Recognize and ensure a fair distribution of benefits and burdens arising from urban planning among those involved in the activity of land transformation and building, in proportion to their contributions.
l) Ensure and make effective an adequate participation of the community in the capital gains generated by the urban action of public agencies and, where appropriate, individuals, under the terms established by this law and applicable state legislation.
m) Attend to the principle of universal accessibility and promote sustainable mobility in general, by reducing mobility needs, favouring electric and non-motorised mobility, as well as the implementation of collective public transport systems.
n) To take into account the gender perspective in the development of population centres.
o) Value the agricultural, livestock, forestry, territorial, ecological and landscape functions of rural areas.
p) Consider the landscape effects in all urban action.
q) Heritage protection, with the reuse of buildings and spaces in historic centres and cultural heritage as a fundamental strategy in the rehabilitation of these elements and the maintenance of the urban structure.
r) Promote energy efficiency in the choice of sites and planning, as well as encourage self-consumption of energy and the implementation of renewable energy.
3. The public authorities shall promote the conditions so that the rights and duties of citizens established in the following articles are real and effective, adopting the appropriate territorial and urban planning measures to ensure a balanced result, which favour or contain, where appropriate, the processes of land occupation and transformation.
The land linked to a residential use for territorial and urban planning will be at the service of the effectiveness of the right to enjoy a decent and adequate housing, under the terms provided by law in the field.
4. In relation to the competence in matters of planning, and within the framework of land use planning instruments, the urban activity will include the following faculties:
a) The formulation and approval of urban development plans and instruments provided for in this Act.
b) The location of production and residence centres that distribute the population in the best possible way.
c) The division of the municipal territory into areas of land, according to a rational organization and in accordance with the general interest of occupation, according to the classification determined in this law and the assignment of the corresponding qualification.
d) The establishment of areas of different uses according to the density of the population that has to occupy them, determining the corresponding urban parameters with uniform general planning criteria for each class throughout the area.
e) The formulation of the layout of public roads and communication infrastructures.
f) The establishment of free spaces for parks and public gardens in the appropriate proportion to the collective needs.
g) The location and definition of the characteristics of the centres and services of public and social interest, the educational centres and the communication infrastructures, in the terms determined, where appropriate, by the applicable sectoral legislation.
(h) The classification of land for the construction of housing subject to some form of public protection.
i) The determination of the dimensions and configuration of building plots, the limitation of buildings and the use of land, subsoil and flight.
j) The definition or orientation of the architectural composition of the buildings and the regulation, where necessary, of their aesthetic and constructive characteristics.
5. In relation to the exercise of the Sunday faculties relating to the use of land, the urban competence shall include the following faculties:
a) Intervene previously the acts of parcelling of all types of land, regardless of their classification.
b) To intervene in the construction and use of properties.
c) Prohibit uses that do not conform to legislation or urban planning.
d) Facilitate compliance with urban obligations to owners in the terms established in this law.
6. Urban competence in matters of execution, direction, inspection and control of planning shall include the following powers:
a) The direction, execution, concession and supervision of the execution of urbanization works.
b) The expropriation of lands and constructions necessary to carry out the urbanization works.
7. Competition for intervention in the land market shall include the following powers:
a) Regulate the land market, with subordination to the purposes foreseen in the planning.
b) To transfer building land and surface rights that are constituted.
c) Constitute and manage the public patrimonies of land.
d) Exercise the rights of first refusal and retraction in the terms established in the present law and in any other applicable legislation.
8. The powers to control the use of land and buildings, to protect the legality of urban planning and to sanction infringements shall be those provided for in this Act.
9. All the faculties mentioned in the previous sections will have a merely declarative character. The competence of the urban activity will integrate all the faculties that are necessary to make effective its purposes and will be exercised in accordance with this law and other applicable legislation.
Article 4 Direction and control of urban activity
1. The direction and control of the management of the urban activity will correspond to the competent administration, which will carry them out in the forms foreseen in the present law and, in what is not foreseen, in any of the forms foreseen in the legislation regulating the legal regime of the acting administration.
2. The administration will be able to carry out the management and the execution of the urbanistic activity directly or it will be able to entrust them to entities of mixed nature or to the private initiative.
Article 5 Exercise of the right of ownership
1. Within the framework of applicable state legislation, the exercise of the urban faculties of property law shall be subject to the principle of the social function of this right, within the limits imposed by legislation and urban planning and fulfilling the duties they set, in accordance with the general interest.
2. In no case may urban faculties that contravene legislation, territorial planning or urban planning be considered to have been acquired by administrative silence.
Article 6 Non-existence of the right to compensation for urban planning of land
1. The urban planning of the use of land and buildings, insofar as it involves simple limitations and duties that define the urban content of the property, shall not confer on owners the right to claim compensation, except in cases expressly established in this law and applicable state legislation.
2. The simple provision of edificabilidad or other lucrative uses, by means of the urban planning, will not integrate it in the content of the right of property of the land. The patrimonialization of the edificabilidad or of the referred uses will take place only with its effective accomplishment and will be conditioned, in any case, to the fulfillment of the duties and to the removal of the own loads of the corresponding regime, in the terms foreseen in the present law.
Article 7 Integration of Ordination and Planning
The competent public administrations in matters of urban planning shall exercise their own powers by means of prior planning. Except for the exceptions expressly established in this Act, the execution of any act of transformation of territory or land use, whether of public or private initiative, shall be legitimized by the planning instrument that is appropriate for planning.
Article 8 Planning instruments and sectoral legislation
1. The instruments of urban planning shall take into account the determinations established in the sectoral legislation that establish specific duties of regulation of the sector corresponding to these instruments.
2. It shall be the responsibility of the bodies that have the respective sectorial competence to ensure the adaptation of these instruments to the determinations of the sectorial legislation by issuing, where appropriate, the mandatory reports, and the rest of the actions and means established by the applicable legislation.
In order to comply with this, these bodies shall provide the administrations responsible for urban planning with the information they need on the subject, cooperate with them and provide them with the active assistance they may request.
Article 9 Hierarchical system
1. The planning instruments that develop urban planning form a single integrated and hierarchical system. The scope and content of each instrument and its relationships for fulfilling the specific purposes integrated into the global system are those provided for in this Act.
2. The instruments of urban planning shall be consistent with the determinations of the instruments of territorial planning and any other legislation or sectoral planning in which they affect, and facilitate compliance.
Article 10 Interpretation of determinations of instruments
Doubts in interpretation caused by inaccuracies or contradictions contained in urban planning instruments will be resolved in accordance with the criteria of greater environmental protection, comprehensive protection of cultural heritage and sustainable development, less buildability and greater provision for public spaces, the gender perspective and applying in all cases the general principle of integrated interpretation of the rules. In the event of an irreducible conflict between the imperative planning documentation that cannot be resolved on the basis of the general criteria determined by the legal system, the written documentation will prevail, unless the conflict refers to the quantification of floor areas, in which case the graphic documentation will have to be followed. In any case, in the soil classified as rustic, the norm or the measure that confers the greatest protection will prevail, regardless of the normative rank and the degree of specialty.
Article 11 Nullity of dispensation reserves
Dispensing reserves contained in urban planning instruments and ordinances, as well as those granted by public administrations outside these instruments, plans and ordinances, shall be null and void.
Article 12 Citizen participation and access to information
1. The competent administrations shall encourage and, in any case, ensure the participation of citizens and of the entities set up to defend their interests in the management and development of town planning activities, shall ensure the rights of information and initiative, and shall promote actions that guarantee or extend these rights.
2. In the same way, citizens will have the right to participate effectively in the procedures for drawing up and approving territorial and urban planning instruments, and for execution in periods of public information. During these periods, all citizens shall have the right to:
a) Consult the written and graphic documentation, both on paper and telematically, that makes up the instrument or file and obtain a copy. To this end, the competent administrations shall be obliged to guarantee, from the beginning of the public information period, the possibility of consulting the documentation and obtaining copies.
The documentation presented to the public shall consist of a summary that includes, as a minimum, a detailed explanation of the modifications it proposes and, where appropriate, the scope and scope of the suspension it entails.
b) Present arguments, suggestions, reports or documents that they consider appropriate in relation to the instrument or file submitted to public information.
Likewise, in the procedures for processing urban planning instruments, all persons shall have the right to consult the instruments that have been the object of provisional approval and to obtain copies.
3. In all other urban planning procedures, interested parties shall have the right to know the status of the processing of the file and to obtain copies of the documents that make it up, in accordance with the provisions of the legislation on administrative procedure. Likewise, citizens shall have the right to access the archives, registers and administrative files corresponding to territorial and urban planning procedures completed under the terms and conditions provided for in the legislation on administrative procedure.
4. The content of urban planning instruments and urban management instruments, including agreements, shall be subject to the principle of publicity. The competent public administrations shall have at the disposal of the citizens complete copies of these instruments and of the agreements that are in force in the respective territorial scope, and shall publish the updated content in the terms foreseen in the present law.
To this end, local councils shall have the following duties:
a) Have a complete and duly completed copy of each of the instruments of territorial planning, urban planning or urban management in force, including administrative or judicial decisions affecting their effectiveness, available to the public during office hours.
b) Provide copies of current urban planning and management instruments to anyone who requests them.
c) Adopt the necessary organizational measures to ensure that requests for information made by any person, in writing or verbally, on the determinations of the urban planning and management instruments in force are met.
d) Adopt the necessary measures to consult in an updated manner the instruments of urban planning and management by telematic means.
5. All persons shall have the right to obtain from the bodies of the competent administration the certified data that will enable them to assume the obligations and exercise the urban activities.
6. Public bodies, public service concessionaires and private individuals shall provide the documentation and information necessary to draw up urban planning instruments.
7. In matters of urban planning and management, the public authorities shall respect private initiative, promote it as widely as possible and replace it in cases of insufficiency or non-compliance, without prejudice to cases of direct public action.
8. Urban management may be entrusted to both private initiative and public bodies and entities, joint ventures or companies, under the terms provided in this Act.
Article 13 Private initiative in urban development activity
1. The administrations with competence in matters of urban planning shall have the duty to facilitate and promote private initiative, within the scope of their respective competences and in the forms and with the scope provided for in this Act. For this purpose, urban development agreements may be signed with private individuals in order to establish the terms of collaboration to carry out the urban development activity in the best and most effective manner.
2. Individuals, whether or not they hold the right to property or any other right over land or real estate, shall take part in the urban development activity in the manner and under the terms of the applicable general legislation and the present law.
Article 14 Public action
1. In accordance with the applicable legislation, the action to demand before the administrative bodies and courts of contentious jurisdiction compliance with the provisions of this Act and the urban planning instruments that are regulated shall be public, through resources or actions as appropriate.
If the exercise of the action is motivated by the execution of works that are considered illegal, it may be exercised while the execution lasts and, subsequently, until the expiration of the periods of prescription determined by this law, without prejudice to the cases of non-prescription.
2. If, as a consequence of the exercise of public action, a sanctioning procedure is initiated, the competent administration shall consider the person who has exercised public action to be the person in charge of the procedure and shall notify him of the agreement to initiate the procedure and the resolution terminating the procedure.
3. For the purposes of public action, and with the exception of disciplinary and sanctioning proceedings, a person interested in a proceeding shall be considered to be, in addition to the person who promotes it or who has rights that may be affected by the resolution adopted, the person who persones.
Article 15 Exercise of powers in urban matters
1. The exercise of the town-planning powers defined in this Act shall correspond to the islands and municipalities, without prejudice to the powers that may be attributed in this matter to other local authorities or special town-planning entities that are constituted.
2. The island councils, as organs of government and administration of the island, shall exercise the powers in urban matters assigned to them by this Act, and shall have regulatory power to develop and implement it, under the terms established by law.
3. The municipalities and other local bodies provided for in the autonomous legislation of local regime, subject to the principles of autonomy for the management of respective interests, proportionality and subsidiarity in the framework of territorial planning instruments, shall exercise their own planning powers in the terms determined by local regime legislation and this law. The urban competence of the municipalities shall include all powers of a local nature not expressly attributed by law to other bodies.
4. The Government of the Balearic Islands shall have the regulatory power to develop those matters which, in view of their inherent supra-island nature, are expressly specified in the precepts of this Act, without prejudice to the coordination of the activity of island councils under the terms established in the Statute of Autonomy.
5. In accordance with specific regulations, special urban planning entities may be created under the territorial-based administrations mentioned in the previous sections, which may assume competences in matters of planning and management, in the cases in which they act as administration, as well as in matters of intervention in building and land use, urban planning discipline and other similar purposes. The delegations of municipal powers may be carried out directly in the special urban entities, or also in the matrix territorial-based administrations, which may decentralize or decentralize its exercise in the special urban dependent entities.
Also have this consideration urban consortia, and each administration will decide whether to participate with other public administrations, in accordance with the legislation of organization, procedure and legal system.
The delegations of powers and management assignments will be formalized in accordance with the provisions of general administrative legislation. When they have to be formalised by agreement, the duration of the agreement may not exceed twenty years.
Article 16 Regime of inter-administrative relations
1. The inter-administrative relations between the municipalities and the island and autonomous administrations in the exercise of their respective town planning powers are in accordance with the provisions of the local regulations, the regulations of the island councils, the legal regime of the Autonomous Community Administration, the regulations of common administrative procedure and, where appropriate, the regulations governing contentious-administrative jurisdiction.
2. When provided for in the organisational rules of each island council, the representatives of the General Administration of the State and of the Government of the Balearic Islands, designated by them, may participate in the collegiate bodies in which competence is attributed to definitively approve the urban planning instruments.
Article 17 Principles of cooperation and collaboration, and subrogation for non-compliance with municipal urban competence
1. Administrations with urban planning powers, by virtue of the principles of collaboration and coordination, and of the power of organisation that corresponds to them, may, in this field, set up managements, consortiums and associations, and use any other legally admitted direct or indirect management formula.
2. The insular councils will encourage the urban action of the municipalities and, in the event that these cannot fully exercise the competences that correspond to them due to their size or lack of resources, they will provide them with sufficient technical and legal assistance.
3. The island councils, in the event of inactivity or manifest non-compliance, will be subrogated in the exercise of the corresponding municipal urban competence, under the terms provided in this law.
Article 18 Soil classes
The general plan, in accordance with the criteria laid down in articles 19 to 21 of this Act, shall classify the entire territory of the municipality in all or any of the following land classifications: urban, developable and rustic.
Article 19 Urban land
1. They constitute the urban land:
a) The lands that the general urban planning expressly includes in this kind of land because they have been legally submitted to the process of integration into the urban fabric and have all the basic urban services.
b) The lands that, in execution of the urban planning, reach the degree of urbanization that this determines.
2. The classification of land as urban will be kept apart from being the object of urban actions, except when these actions involve the transformation of degraded or urbanized spaces for their return to the natural state. These actions will be regulated in the general plan justifying the origin of the declassification of the corresponding soils.
Article 20 Developable land
Constitutes the land for development the land that the general municipal urban planning, in accordance with the determinations and limits of the corresponding island territorial plan, classify so because it considers them adequate to ensure growth and the needs of the population and economic activity.
Article 21 Rustic land
Rustic land is the land that the general urban planning preserves from the processes of urban development or transformation, through its management and protection of the elements of identity that characterize them according to their agricultural values, forestry, livestock, hunting, natural, landscape or cultural, and its contribution to the defense of fauna, flora and the maintenance of territorial and ecological balance.
Land not expressly classified as urban or developable by general urban planning also constitutes rustic land.
According to the intensity of the protection, the planning will differentiate in this kind of soil the basic qualifications of protected rustic soil and common rustic soil.
Article 22 Basic urban services
1. The basic urban services shall consist of the following infrastructure networks:
a) Roads, duly paved with, where appropriate, curbs and which have a sufficient degree of consolidation to allow connectivity with the basic road network.
b) Water supply.
c) Electricity supply.
d) Street lighting.
e) Wastewater treatment.
2. The basic urban services shall have the appropriate characteristics for the use of the land provided for in the urban planning that classifies it.
Article 23 Urban development activities
The planning may distinguish the following urban actions:
1. Building actions. These are those that affect a single plot, located on urban or rural land, with any of the following purposes:
a) The building, which may include simultaneously and, where appropriate, the completion of any urban service in the terms established in Article 29.2 of this law.
b) Building rehabilitation, which may have as its object:
i. The recovery of structural safety conditions and the rest of habitability conditions.
ii. The optimization of its energy efficiency.
iii. Satisfaction of universal accessibility.
iv. Adaptation to the conditions of the environment and of the urban or rural environment in which it is integrated.
c) Substitution of pre-existing buildings for new ones in accordance with the planning in force at this time, provided that the latter maintains the urban use attributed by the previous planning.
2. Urban transformation actions. They are those that affect a set of plots, located on urban or developable land, whose purpose is to transform the pre-existing urban space, according to the determinations of the new planning. The following situations are distinguished:
a) Actuation of new urbanization: it is the one that qualifies for the complete transformation of its original rural situation to the end of urbanized land. The spatial scope of this type of action will be that of a sector of land for development delimited in the general plan.
b) Action of urban renewal: it is that which enables the complete transformation of the situation of the original urban fabric and the integral renovation of its urbanisation, understanding as such that which implies the general redevelopment of its area of land with practically total demolition of the pre-existing buildings and complete redesign and re-implantation of its urban services. The spatial scope of this type of action is that of a unit of action located on urban land delimited in the corresponding detailed development plan.
c) Action of endowment: is that which enables the obtaining of endowment plots on urban land in proportion to the increases in use that the planning attributes to certain specific plots in the terms established in the following paragraph of this section and provided that it does not require comprehensive reform of the urbanization. The spatial scope of this type of action will be delimited as a unit of action, continuous or discontinuous, on urban land and will be identified through the procedure of voluntary reparcelación and according to the criteria established in Articles 78.4 and 90, respectively, of this law, at the time of implementation of planning.
The plots that make up these endowment actions will be of two types: on the one hand, for-profit plots to which the planning attributes an increase in urban use produced by an increase in buildability, housing density and / or a change of overall use, with respect to that established in the previous planning, and on the other hand, plots for public endowments, dimensioned in proportion to the aforementioned increase in use attributed to the for-profit plots.
d) Interior reform: is that which enables the modification, renewal and redevelopment of a specific area of urban land and may contain other types of urban development, except those of new urbanization, in the terms established in Articles 130 and 131 of this Act. The spatial scope of this type of action will require its geometric delimitation in the urban soil of the general plan and its detailed planning will be established through the formulation of a special interior reform plan.
When the spatial scope of the interior reform encompasses, in addition to the objective of resolving the existing functional obsolescence, intervention in areas of generalised social vulnerability, it will be called “urban regeneration action”.
3. Isolated actions: this consideration will be given to planning execution actions that have a different purpose from those mentioned in the previous sections, and in particular:
a) The direct execution of general systems or any of their elements in any kind of soil.
b) Those aimed at obtaining land for public endowments in urban land that do not have the consideration of actions of endowment for not having an increase in urban use.
The identification of the scope of these actions will be established in the corresponding planning.
Article 24 Definition and determination of the urban development objective, public, average and subjective of an action
1. Urban development, measured in units of use (ua), will be the parameter that:
a) It represents the juridical-urbanistic content attributed by the planning to a concrete ground.
b) Determine the economic content of the property right.
2. The objective urban use of a plot or a spatial area of specific planning will be determined by the sum of the products of the buildings (m2 of roof) corresponding to each of the detailed uses of which they are susceptible, multiplied by the weighting coefficients (ua/m2 of roof), calculated in accordance with the provisions of paragraph 6 of this article.
3. The public urban development will be derived from the duty of participation of the community in the capital gains generated by planning. It shall be determined by applying the percentage established by this law to the objective use of a specific plot, or the means in the case of an action of new development or urban renewal.
4. The subjective urban development will be that which corresponds to the owners integrated in the urban action, and will be determined as the result of deducting from the objective or average use the public use that corresponds to the administration.
For the purposes of the development of urban regeneration actions established in Article 131 of this Act, net urban use is understood as the result of deducting from the total urban use the equivalent to the cost of charges and duties that, where appropriate, involves the new arrangement established by the special plan, and will be justified in the formulation of the mandatory economic viability report.
5. For each area of new development actions in urban land and urban renewal actions in urban land, will determine the average use (ua/m2 of land), which will be the quotient of dividing the objective use of this area calculated in the terms set out in number 2, by the total area of urban development action (m2 of land), discounted, where appropriate, the areas corresponding to the pre-existing public endowment soils that maintain this qualification by the new planning.
6. The coefficients of relative weighting between uses (ua/m2 of roof) will be determined by reference to the characteristic use, which will be the one with the greatest edificability attributed in the urban action and to which the value of the unit is assigned (1 ua/m2 of roof). The remaining detailed uses foreseen in the action will be assigned values for comparison with the unit, determined in proportion to the different values of repercussion of the floor (€/m2 of ceiling) corresponding to each of these uses, in accordance with the results of a rigorous market study accredited by an expert appraiser of recognised competence or by an officially approved appraisal society.
Article 25 Concept of solar
1. Land classified as urban land that is suitable for building, according to the urban classification, and meets the following requirements shall be considered a plot of land:
a) Linden with public space.
b) Have effectively, at the foot of the alignment of the facade of the plot adjacent to public space, the urban services set by urban planning and, at a minimum, the basics outlined in Article 22 of this law. When the plot borders more than one public space, the requirement of supply and evacuation services shall only be demanded in one of them. The simple fact that the land borders on highways and connecting roads or roads that delimit the urban land does not imply that the land has the condition of solar.
c) They have marked the alignments and the flush, in the case that the urban planning defines them.
d) Have not been included in an area subject to pending urban development.
e) The land required by the planning has been ceded, where appropriate, to be used for public spaces with a view to regularising alignments or completing the road network.
2. To have the condition of plot of land will be an essential requirement for the building licence to be granted. However, exceptionally and with reasons, simultaneous building and development may be authorised under the terms established by regulation or, failing that, in the general plan or in the detailed development plans, in the cases contained in letters a), b) and d) of article 23.2 of this law.
Article 26 Rural areas
Within the classification of rustic land, rural nuclei are established as a special category, understood as settlements of grouped buildings of a predominantly residential nature.
The delimitation of the rural nuclei, when it is not established by the instruments of territorial planning, will be carried out starting from the layout of a perimetral line that surrounds the buildings that conform the settlement in coherence with its parcelación, without in any case allowing a future peripheral growth.
The general planning will recognize, delimit and order these nuclei according to the following classification:
a) Traditional rural nuclei: are those settlements that, depending on their morphological characteristics, the typology of the buildings and other circumstances that accredit the link of the settlement to the traditional activities developed in the physical environment where it is located, are implanted prior to the Law of May 12, 1956 on land regime and urban planning.
In order to prove the existence of the nucleus before this date, all available documentary, graphic, photographic, legal or literary references may be used.
Its detailed ordering will be established by means of a special plan, if it has not done it another instrument of planning. This planning, which will determine the conditions of the building and service infrastructure, will be directed towards the completion of the settlement.
The conditions of the building may not exceed the average edificability of existing buildings or a number of floors above the ground floor and one floor.
b) Ordinary rural nuclei: are those settlements recognized and delimited in the instruments of territorial planning or, in its defect, in those of general urban planning, prior to the entry into force of this law, which are governed by what these instruments establish or, where appropriate, special development planning.
In any case, the service infrastructures will have among their objectives the preservation of the environmental conditions, and the urban parameters of the building will not be able to surpass the average edificability neither the average height of the existing buildings nor a number of floors superior to ground floor and floor.
The revisions or modifications of the plans will not be able to attribute in any case to these nuclei the classification of urban ground.
Number 2 of article 26 repealed by number 1 of article 5 of Law [BALEARIC] 6/2018, June 22, which amends several rules of the legal system of the Balearic Islands in tourism, public service, budget, personnel, urban planning, pharmaceutical planning, transport, waste and local regime, and authorizes the Government of the Balearic Islands to approve certain rewritten texts (“B.O.I.B.” June 26). Valid: 27 June 2018
Rights and duties of owners of land for development
Article 30 Rights and duties of persons owning land for development
1. Persons owning land classified as developable shall have the right to use the land belonging to them, to enjoy it and to dispose of it in accordance with its rustic nature. In addition, except in cases of promotion by public administrations, they shall have the right to promote their transformation through the formulation of the partial plan, as well as the processing of the corresponding management and execution instruments, in accordance with the provisions of this law.
2. The owners of land for development will have, in addition to those provided for in Articles 29.3 and 31.2 of this law that are proper to their class of land, the following duties:
a) To assign the land necessary for the execution of the general urban systems that the general plan includes or ascribes in the scope of action of urban transformation in which the lands are included, as well as the reserved for the local systems in this scope by the corresponding plan.
b) To transfer the land free of urbanization loads corresponding to 15% of the average use corresponding to the sector or, where appropriate, to the multisectorial area in which the planning had integrated it. Justifiably, in the result of the economic viability report, this percentage may be reduced by urban planning up to 5% when they are actions with an excess of burdens over the average of urban transformation actions of the municipality, or when the area is predominantly allocated to public endowments.
Also, urban planning may justifiably increase the percentage previously provided up to 20% in those cases where the value of the resulting plots is considerably higher than the others in the same category of land according to the result of the economic viability report.
c) To cost and, where appropriate, to execute the connection infrastructures with the general urban systems outside the urban transformation action and the works for the extension or reinforcement of these systems which, where appropriate, are necessary as a consequence of the magnitude of this action, in accordance with the determinations of the general plan.
These works and infrastructures will be understood to include, in accordance with their regulatory regulations, those of drinking water treatment, supply and purification, as well as the obligation to participate in the costs of implementing the public transport infrastructures that are necessary for the connectivity of the sector to be adequate.
d) Guarantee the rehousing of legal occupants who need to be evicted from properties located within the area of urban transformation action and which constitute their habitual residence, as well as their return when they have the right to do so, in the terms established in state land legislation.
3. The owners of land for development will have the right to consult the competent administrations on the criteria and forecasts of urban planning, current and in process, and on the works to be carried out to ensure the connection of the development with the general networks of services and, where appropriate, the expansion and reinforcement of existing and external to the action.
The response to the consultation, which will be notified within two months, will be informative with regard to the urban conditions at the time it is issued; it will not bind the administration in the exercise of its own public powers, especially the planning power; and it will include the period in which this has effects, which may not be less than six months. The expiration of the period of two months without an express response shall not generate any favorable effect with respect to the terms of the consultation.
In the event that the administration alters the criteria or provisions that are provided in the consultation within the period in which it takes effect, the alteration shall be expressly motivated, without prejudice to the right to compensation that may derive from the preparation of the necessary projects that are useless, in accordance with the general system of liability of public administrations.
Rights and duties of persons owning rustic land
Article 31 Rights and duties of persons owning rustic land
1. Persons owning land classified as rustic shall have the following rights:
a) To carry out the activities necessary for agricultural, forestry, hunting and livestock exploitation through the use of technical means and appropriate facilities, in accordance with specific regulations, and without involving, in any case, the transformation of their condition or essential characteristics.
b) To develop, in a way limited to the strict needs duly justified, the building, construction or installation activities to carry out the activities of the previous paragraph and, exceptionally, other uses that are authorized in accordance with urban legislation.
2. Owners of land classified as rustic shall have the following duties:
a) To conserve, maintain and, where appropriate, restore the soil and vegetation in the conditions necessary to avoid risks of erosion, fire or disturbance of public safety and health or the environment and the ecological balance and landscape.
b) To refrain from any uncontrolled activity which may have the effect of polluting the land, water or air.
c) To carry out the plans and programmes that are obligatory for them, in accordance with the legislation regulating the activities.
d) To comply with the obligations and bear, where appropriate, the burdens imposed by law for the exercise of the rights referred to in paragraph 1(b) above.
e) To allow the competent public administrations, without the right to compensation when they do not affect legally developed profitable activities, to carry out works of planting and conservation of vegetation aimed at preventing erosion or natural disasters.
3. Owners of land classified as protected rural land, in addition to the limitations on the right to own property of land allocated to common rural land, shall have those arising from its special protection regime.
Article 32 Acts of division of land classified as rustic land
1. In rustic land, acts may only be carried out which have as their object or consequence the subdivision, segregation or division of land or properties when they are in accordance with urban planning legislation and agricultural legislation, depending on the object of the act of division. These acts will be subject to municipal planning permission, and will be null and void if carried out without this license.
2. The acts of division that are a consequence of the execution of determinations of the planning or of the public infrastructures and of those cases that are established by regulation will be exempted from the need to obtain a licence, and will be substituted in these cases by a certificate of unnecessary, the acts of division that are a consequence of the execution of determinations of the planning or of the public infrastructures and of those cases that are established by regulation.
Article 33 Rights and duties of owners of rustic land ordered as a rural nucleus
1. The lands that the general planning includes and orders as a rural nucleus will be destined to the characteristic uses, complementary or compatible with the residential construction, with the limitations established for each one of the types of nuclei, as indicated in article 26 of the present law, and with the needs of the population that resides there. The owners of this type of land shall have the right to use it and to carry out the actions compatible with their own system.
2. In the absence of a detailed development plan or when this does not contain the complete development of the regime of land included in the delimitations of rural nuclei referred to in Article 26.1 of this law, until the special planning that orders not be approved may not authorize works to implement services or building of new plant or expansion of existing buildings.
3. The planning will specify the system of rights and duties of persons owning land, as well as conditions of use and building in rural areas, and will be prohibited all activities, constructions and uses that undermine the characteristics that have led to the inclusion of land in this category of land.
4. In areas in which the planning provides for actions in rural areas with respect to the implementation or renewal of services, in the degree of demand that the planning determines, land owners will be equally obliged to bear its cost.
Article 34 Planning instruments
1. The urban planning of the municipalities will be fixed by means of two types of hierarchical plans: the general plan and the detailed planning plans.
2. The general plan shall establish the structural determinations defined in Article 37 of this Act. The approval of the general plan shall be prior to and necessary for the approval of the detailed development plans.
3. The detailed development plans shall establish the detailed determinations defined in Article 42 of this Act, with strict respect for the determinations set out in the general plan to which they are linked, and shall be developed through the following development planning instruments: partial plans, special plans and detailed studies, as well as through the development instruments conformed by municipal ordinances of building and urbanization.
Partial plans and special plans may also be developed through detailed studies, when so provided.
4. The protection of historical heritage elements will be carried out by means of special plans and catalogues.
5. The determinations of the planning instruments shall be defined in the graphic and written documentation that is established by regulation. In any case, the plans shall contain, as a minimum, the regulatory regulations and a justifying report in which special mention is made of the environmental, economic and social sustainability of the proposal, as well as all those documents required by the applicable sectoral legislation in the terms established in Articles 36 and following of this law.
Article 35 General plan
1. The general plans, as instruments of integral and structural planning of their territory:
a) They shall comprise the entire municipal area.
b) Classify the land in urban, rustic and, where appropriate, developable, for the establishment of the corresponding legal system.
c) They shall define the fundamental elements of the general and organic structure, and of the structural ordering established in article 37 of the present law.
d) Establish the temporary provisions or priorities for its development and implementation, and the terms and conditions for its review.
2. The general plans shall be drawn up in a manner adjusted to the determinations and guidelines established in the territorial planning instruments and sectoral legislation.
Article 36 Purpose of the general plan
1. In urban land, the general plan will aim to establish structural planning, identifying the elements that correspond to it established in Article 37 and the definition of the areas subject to actions of urban transformation defined in Article 23, both of this law, which will determine the structural characteristics and its implementation forecasts.
2. In the land for development, the general plan will aim to establish the structural arrangement, identifying the elements that correspond to it established in Article 37 of this Act, the marking of the parts of the general structure and organic general systems that are ascribed or included in the sectors, and the provisions to formulate and implement them.
3. In rustic soil, the general plan shall aim to preserve this soil from the process of urban development by establishing, where appropriate, the corresponding protective measures, identifying the two basic categories of common rustic soil and protected rustic soil.
Article 37 Determinations of the general plan
The general plans shall contain the following structural planning determinations:
a) Classification of the soil, with expression of the surfaces of each class, in which it will be specified:
i. In urban land, the delimitation, by uses and homogeneous typologies, that allow to conform zones of urban planning for the application of some ordinances of building in plots, or of urbanization and building in actions of urban transformation of interior reform or urban renovation, to establish in the plans of detailed planning.
ii. In land for development, the delimitation of sectors and the establishment of structural parameters indicated in this article for this type of land.
iii. In rustic soil, the determinations established in this article for this type of soil.
b) Indication of the overall majority, residential, industrial, tertiary or tourist uses, and the indices of gross buildability assigned to each of the delimited development areas as actions of urban transformation into urban land and the sectors of urbanizable.
c) Determination of the maximum capacity of population in each area of urban land management and each sector in the urbanizable. In any case, in areas of urban land consolidated by the building in more than 90% and not subject to urban transformation actions, population capacity will be determined on the basis of existing and demographic forecasts in a minimum horizon of 15 years.
For urban planning areas delimited in urban land and for sectors of urban land for residential use, the maximum population density will be set.
The plan may increase the overall residential density of up to 75 dwellings/Ha, provided that this increase is intended for housing with some type of public protection. This limit shall not apply to urban land when, in the area of urban planning, the existing density is higher.
d) Establishment of the criteria for determining the average urban use of each area of action of urban renewal in urban land and in sector of land for urban development in accordance with the indices of gross buildability, the allocation, where appropriate, of land for general systems and global uses indicated in the land not intended for roads, parks and public gardens and other services and endowments of general interest, homogenized according to their relative values, in the terms established in Article 24.5 of this Act.
In developable land, the areas of distribution of burdens and benefits, or areas of distribution, will be delimited preferably for each of the sectors, and may include or ascribe in its scope the surface of floors of general systems that are considered adequate functionally and economically, depending on the result of the mandatory report of economic viability.
e) Criteria and objectives to be met by the special plans and partial plans foreseen in their development.
f) Definition of the general and organic structure of the territory made up of the general road and communications systems, and the criteria that guarantee sustainable urban mobility, as well as the general systems of open spaces and public green areas in a proportion that, generally speaking, will not be less than 5 m2 per inhabitant; and by the general systems of equipment and infrastructure in an adequate proportion to the population envisaged in the planning, with an indication of the corresponding protection zones.
A lower proportion of public free spaces than that indicated in the preceding paragraph may be established by regulation or through island territorial plans for certain nuclei, always in proportion to their population, typology or traditional character.
See the third transitory provision “Proportion of free spaces in certain nuclei” of this norm.
g) Temporary provisions for the development of their determinations or, if not, the indication of the priorities for action to coordinate public and private actions and investments, in accordance with the plans and programmes of the rest of the public administrations.
h) General regulations for the two basic categories of rustic land and measures for the protection of the environment, nature and landscape, elements and natural or urban areas, in accordance, where appropriate, with the specific legislation applicable in each case.
i) Evaluation of the needs of housing subject to some form of public protection and the determination of the reserves for this type of housing for the planned urban transformation actions, as well as their location. Likewise, this evaluation will also consider the need to have publicly subsidised housing exclusively for rent and on a rotating basis, with the aim of meeting the temporary needs of groups with special difficulties in accessing housing.
In determining the land to be used for the construction of housing subject to some form of public protection, the general plan will analyse the social demand for this type of housing and will apply the criterion of determining the right to obtain housing for those families who cannot have more than one third of their family income at the time of obtaining it. In any case, the plan will reserve, as a minimum, the land corresponding to 30% of the residential buildability foreseen in developable land and urban land that has to undergo urban renewal and interior reform, provided that, in all these cases, residential use is the predominant.
The location of the reserve areas, as a general rule, will be uniform for all areas of action of urban transformation provided for in the plan. If, exceptionally, the uniform distribution is modified, this decision shall be justified in the general plan report, or on account of the incompatibility of the building type envisaged with the construction of subsidised housing, or on account of the result of the report on the economic viability of the urban transformation action according to its size. In any case, it will be accredited the non-generation of spatial segregation. The mixture of public and free social housing will always be sought and, if possible, the two types of housing will coexist in the territory. In any case, the general plan will ensure full compliance with the reserve in terms of new development actions on land for development in which this reserve is required.
Without prejudice to the foregoing, municipalities may reduce the reserve of housing subject to some system of public protection in urban transformation actions that are located in a tourist area for which the territorial insular plan determines its rearrangement, and provided that it is justified in the analysis of social demand for these homes in the terms set out in this section and that the rearrangement involves a reduction in urban development and its profitability, justified in the result of the report of economic viability with respect to the existing scenario previously.
j) Indication of the circumstances in which its revision will be made, based on the total population and its growth rate, resources, uses and intensity of occupation and other elements that justified the land classification initially adopted.
Article 38 Documentation of general plans
1. The general plans shall be formalised by means of the following documents:
a) The informative and justifying memory of the plan, with the complementary studies, in accordance with the content established in the present law.
b) The plans for information and urban planning of the territory, formalised on an appropriate scale, of the layout of the general systems constituting the basic networks for water supply, electricity supply and sanitation; and possibly for gas and telecommunications, the general road system and the green areas and open spaces, as well as those corresponding to the other services or endowments established in the plan. Likewise, the real estate assets that make up the public land patrimony will be located and defined.
c) The general urban planning rules, which shall establish, through an articulated text, the structural determinations defined in article 37 of this law that correspond, in each class and category of land, to this plan. In addition to the determinations referred to, the planning rules shall also contain the basic rules relating to urban execution, in order to regulate, generally, the constructive, technical or similar aspects of urban actions established in Article 23 of this law, which will respect the detailed management plans.
d) The economic studies consisting of the economic-financial study, the economic sustainability report and the economic viability report, formulated in the terms established in article 47 of this law.
e) The environmental documentation required by sectorial legislation.
f) The catalogue of protected elements and spaces.
2. Based on the economic sustainability reports corresponding to each urban transformation action, the general plan shall establish a programme of actions, which shall be updated periodically and, at most, every six years, by agreement of the city council, after a period of one month of public information by means of an announcement in the Official Gazette of the Balearic Islands and at the corresponding address or electronic access point. This agreement will be published in the Official Gazette of the Balearic Islands and at the address or electronic access point, and will be communicated to the corresponding island council and to the Archives of Town Planning of the Balearic Islands, sending the documentation that has been updated.
Article 39 Contents of the general plan report
1. The informative and justifying memory of the general plan will establish the conclusions derived from the urbanistic information that are relevant for the fixation of the determinations of the structural ordering of the territory, will analyze the possible alternatives and will justify the chosen model, as well as the dispositions of general character and the corresponding dispositions to the diverse classes of soil.
2. The informative and justifying report of the general plan shall refer to the following points:
a) The integration of the program of citizen participation that the city council has applied during the process of formulation and processing of the plan to guarantee the effectiveness of the rights of participation recognized by the applicable legislation.
b) The measures adopted to facilitate the achievement of sustainable mobility in the municipality, which will include actions aimed at reducing mobility needs taking into account the locations of residential, commercial and work centers, the promotion of non-motorized mobility, including the implementation of bicycle lanes, and the use and, where appropriate, improvement of the provision of public transport service in the terms provided for by sectoral legislation and local regime applicable. Specifically, the measures to be adopted with regard to the large mobility generating centres envisaged in the plan will be defined.
c) The town planning information, together with the necessary complementary studies, which will be included:
i. The urban planning previously in force and its state of execution at the time of its revision.
ii. The planning of territorial and sectorial ordinance in force with incidence in the scope of the plan.
iii. The characteristics of the territory.
iv. The characteristics of the population settled on the territory. The sex variable will be included in the statistics, surveys and data collection carried out.
v. The sufficiency and availability of the existing basic municipal networks corresponding to water, fire hydrants, gas, electricity, telecommunications and wastewater or rainwater evacuation systems.
vi The sufficiency and availability of works and infrastructures corresponding to general road systems, free spaces and green areas or programmed endowments and the policy of public investments that may influence urban development.
vii. The indication of the environmental, landscape, cultural, agricultural or any other type of values existing within the scope of the plan.
viii. The other relevant aspects that characterize the territorial scope of the plan.
d) The objectives of the structural planning of the plan, the analysis of the various alternatives envisaged and the justification and description of the chosen planning model and, specifically, of the following aspects:
i. The classification of the land, in accordance with the criteria established in this Act.
ii. The observance of the objective of sustainable urban development, taking into account the conclusions of the strategic environmental study that integrates the documentation of the plan, and the adequacy to the criteria set by the instruments of territorial planning.
iii. The analysis of the forecast of alteration of use due to a change in overall use or gross buildability applied to certain areas located in any kind of soil, in relation to the use attributed by the previous planning.
iv. The diagnosis of the deficits of the existing basic municipal networks corresponding to water services, hydrants for fire, gas, electricity, telecommunications and waste water or rainwater evacuation systems, analysis of the available resources, and description and justification of the works and the origin of the resources necessary to adapt, extend or improve these basic networks.
e) An executive summary delimiting the areas or plots in which the projected structural planning alters the current one in the terms established in section iii. of letter d) above, an alteration which will be justified in the economic viability reports, will be located in the planning plans and from which its scope will be determined and, where appropriate, the areas in which the planning or the execution or urban intervention procedures are suspended, and the duration of this suspension.
3. The social memory of the general municipal plan shall be the document evaluating and justifying the determinations of the plan relating to the social needs for access to housing, and shall also form part of an evaluation of the impact of the proposed urban planning on the basis of gender, as well as with regard to social groups requiring specific attention, such as immigrants and the elderly, with the aim that the planning decisions, based on information on social reality, contribute to the development of equal opportunities between women and men, as well as to favouring other groups deserving of protection.
Article 40 Detailed management plans
1. The detailed management plans, in compliance with the structural determinations established in the general plan they develop, shall have as their function:
a) The establishment and the development of the determinations of detailed character defined in article 42 of the present law.
b) The establishment of urban planning rules and detailed building ordinances through the allocation of uses and indices of net edificability corresponding to each of the plots or the same parameters, including the detailed planning of its urban plot in each area of action of urban transformation of interior reform and urban renewal provided for urban land and for each sector of land for development, as well as detailed determinations for all categories into which the rustic land is divided.
2. The implementation of urban development actions established in Article 23 of this law and that are provided for in the detailed management plans, will require:
a) The mandatory administrative authorization applicable to building and isolated actions.
b) The approval of the most detailed planning required in each case, for the actions of urban transformation.
3. The detailed planning plans may be formulated in a single document that includes all the determinations of a detailed nature defined in Article 42 of this Act, or may be formulated in separate documents for each class of soil, or by sectors, areas or categories, provided that the overall coherence of the territorial model established in the general plan is guaranteed and maintains for the rest of soils not innovated the legal-urban regime established in the previous planning.
Article 41 Documentation of detailed management plans
Detailed management plans shall include the following documentation:
a) The informative and justifying memory, as much of its adequacy to the general plan that they develop, as of the determinations of detailed ordination that they establish.
b) The plans of the present state and of the existing affections on the territory, and the plans of detailed planning, to suitable scale, in which the graphic determinations will be established that are necessary for a perfect knowledge of the foreseen urban planning.
c) The urban planning rules and general and particular ordinances of compatible and prohibited uses with regard to the overall established in the general plan and the indices of net buildability applicable to each of the individual plots integrated into the areas of urban land management, and to the building plots derived from the detailed planning for each area of urban transformation into urban land and in each sector of the land for development, supplemented with the corresponding planning and management files applicable to each of the actions of urban transformation envisaged.
They will also include urban planning rules and general and particular ordinances for all categories of rustic land.
d) The economic viability report for those cases in which there is an increase in use over that attributed by the previous planning and the economic sustainability report for those actions that generate transfers of land to the administration for infrastructure or public endowments.
e) The strategic environmental study according to that established in the environmental legislation, unless, due to its purpose and object, the environmental body agrees to the exoneration for the fact that it does not have significant effects on the environment.
Article 42 Determinations of detailed management plans
Detailed management plans shall contain the following determinations:
1. In urban land and land for development directly ordered, with respect to the areas defined by uses and homogeneous typologies that allow to form areas of specific planning for the application of building management:
a) The marking of plots subject to actions of endowment and to building and isolated actions, in the terms established in Article 23.3 of this law, as well as the spatial areas subject to actions of interior reform, regeneration and urban renewal. The delimitation of these areas may be made in the same plan or deferred in a special plan, and will have the effects provided for in state land legislation. In any case, the instrument that makes this delimitation will incorporate the progress of the equidistribution and, where appropriate, the plan of rehousing and return, under the terms provided in state law.
Also, in cases of delimitation of areas subject to actions aimed at restoring the land to its natural state may move part of the use to another area of urban or developable land.
b) The classification of all land included in the areas of development, with the definition of compatible and prohibited uses in relation to the overall established by the general plan and net indices of edificability applicable to isolated plots integrated into the areas of urban land management, or urbanized derived from the development corresponding to the development of areas subject to urban transformation in urban land, determining the average urban use according to the criteria set out in Article 37.d) of this law.
c) The definition of land intended for public open spaces, facilities and centers of infrastructure and services, depending on the potential capacity of the plan and the endowment standards provided for in Article 29 of this law.
d) The layout and characteristics of the road network and of the spaces destined for parking with signposting of the totality of its alignments and flats, and to coordinate them functionally with the structural road system contained in the general plan.
e) The layout and characteristics of the water supply, sanitation, electrical energy and other planned services networks, and to coordinate them functionally with the basic networks of structural services contained in the general plan.
f) Detailed regulation of use, volume, maximum occupation, number of floors above and below ground level, maximum height of buildings, setbacks to boundaries, hygienic-sanitary conditions of land and buildings, as well as aesthetic and typological characteristics of buildings, buildings and their surroundings.
g) The urbanistic norms and the authorized actions in the constructions or buildings inadequate to the new planning, according to the foreseen in the article 129 of the present law.
2. In the sectors of land for development:
a) The same determinations of detailed character indicated in the previous number 1, except those established in letter a).
b) The assignment of the general systems foreseen by the general plan, as well as the connections that, where appropriate, were necessary for the correct functioning of the basic municipal infrastructure networks.
c) If the detailed management plan establishes the detailed management of a sector or sectors, the formulation of a partial plan will not be necessary.
In cases where it is not advisable to defer land use planning to development planning, define it with the same degree of concretion as for urban land. Without prejudice to other cases in which it is considered justified, this category is preferable in areas of reduced size or that are predominantly intended for use endowment or infrastructure. In directly ordered urban land may be chosen:
i. When the magnitude of the action allows it and in the cases of soils destined to industrial and tertiary uses, to apply the reserves for endowments required for the urbanizable soils.
ii. In all other cases, allocate at least half of the gross area of its scope including, where appropriate, the general systems assigned to use endowments, infrastructure or land for public heritage of land additional to those resulting from the determinations of Articles 29 and 39 of this law. These transfers, obligatory and free of charge, will replace those that, generally speaking, are established by urban planning regulations for land for development.
3. In rustic soil:
a) The necessary measures and conditions for the conservation of the characteristics of the common rustic, and for the protected rustic, the protection of each and every one of its relevant natural elements by the values that are accredited, including the ecological, agricultural, livestock, forest and landscape values whose singularity advises its protection.
b) Measures to improve the development of agricultural activity, based on an analysis of the situation.
c) The prevention of natural or technological risks, including those of flooding or other serious accidents.
d) The typological, morphological, aesthetic and constructive characteristics to which the buildings that may be implanted in this type of soil will be subjected. As a minimum, the conditions of volumetry, dimensioning and treatment of empty spaces not occupied by the building, treatment of facades and roofing solutions, as well as admitted materials and finishes shall be defined.
e) Detailed regulation of the conditions and uses of the building, respecting the limits of specific legislation.
f) The conditions of position and implantation within the plot in accordance with the specific legislation.
g) The delimitation of rural nuclei and the establishment of detailed planning and other determinations under the provisions of Article 26 of this Act.
4. In general:
(a) Measures deemed appropriate to ensure universal accessibility, in accordance with the provisions of the specific legislation applicable.
b) The measures and conditions necessary for the conservation and protection of cultural heritage.
Article 43 Partial plans
1. The partial plans will aim to develop the detailed management plan and the criteria established in the general plan and in a manner consistent with its determinations, define the detailed management of a sector of land for development with the same degree of detail as urban land and directly ordered urban land for development, determining the scope or areas of the units of action of new development, where appropriate, are provided depending on the outcome of the economic sustainability report.
2. For the purposes of section 1 above, partial plans:
a) Qualify the soil.
b) Regulate the detailed uses, both those that are compatible and those that are prohibited, depending on the overall established by the general plan, and the parameters of the building through the attribution of indices of net edificability applicable to each plot depending on what corresponds to the gross edificability established by the general plan, in order to allow the granting of licenses.
c) They will indicate the alignments and the rasantes.
d) They will define the basic parameters of the parcelación and of the ordering of volumes, by means of the establishment of the maximum occupation of parcel, maximum number of plants and heights of the building and setbacks of borders.
e) Establish the system of action, management conditions and deadlines to promote the corresponding instruments and to execute the works of urbanization and building, without prejudice to these may be modified by an alteration of the programming established in the general plan.
f) Provide for the specific location of land where it will materialize, where appropriate, the reserve for the construction of public housing, in accordance with this Act and the general planning, and establish the mandatory periods in which the administration acting and the owners awarded land for public housing will start and finish the construction of these homes.
3. Optionally, they may directly specify the characteristics and layout of the basic urbanization works in the case of a sole owner or by agreement of all owners. In this case, the partial plan will define the works with the sufficient degree of detail to allow their immediate execution, evaluate their cost and foresee the stages of execution for each field of action of urban transformation, and will establish some criteria and an indicative budget of the other works and expenses of urbanization, without prejudice that the projects of complementary urbanization concreten them. Optionally, the basic urbanization works may be specified in a separate document by means of an urbanization project.
4. The areas of the land endowed or destined for parking shall be independent of those corresponding to the structural planning of the general plan and shall conform to the minimum areas established by regulation and which shall be at least the following:
a) In areas of predominant residential or tourist use:
i. For public open spaces: 10% of the surface area of the sector that is not less than 20 m2 per dwelling or per 100 m2 of residential building, and 7 m2 per tourist square, depending on the application of the corresponding indices of edificability.
ii. For public facilities: 21 m2 per dwelling or per 100 m2 of residential building, or 7 m2 per tourist square.
b) In industrial and tertiary use:
i. For public open spaces: 10% of the surface area of the sector.
ii. For public facilities: 5% of the surface area of the sector.
c) In the two previous cases, the area destined for parking on public domain land will guarantee a minimum of one parking space per 100 m2 of building, of which at least 50% will be located in public parking areas outside the road. In any case, there will be places for charging electric vehicles.
d) In the case of mixed-use areas, the general plan may establish specific standards that may be set through the proportionality of the buildability assigned to each use or through other duly justified criteria.
5. Likewise, partial plans:
a) Determine the period for starting and finishing the execution of the new development actions they foresee or, where appropriate, determine a plan of stages.
b) They will contain the economic viability report and the economic sustainability report in the terms established in the present law and in the state legislation.
Article 44 Documentation of partial plans
Partial plans shall formally consist of the following documents:
a) The report and the supporting and complementary studies.
b) Information, planning and project plans and, where appropriate, details of the development.
c) The rules governing the parameters of parcelling, use and building land.
d) The economic sustainability report that will analyze the impact produced in the public treasury by the maintenance and the conservation of the dotacionales soils and roads that are yielded to the administration, and the economic viability report that will analyze the profitability that the action produces in the landowners, formulated both studies in the terms established in the present law and in the state legislation.
e) The budget of works and services.
f) The plan of stages or the term to begin and to finish the execution of the actions, in accordance with the paragraph 5 of the previous article.
g) The division into action units, where appropriate, according to the result of the economic sustainability report.
h) The justification that the determinations of the general urban planning on sustainable mobility are complied with.
i) The strategic environmental study according to that established in the environmental legislation, unless, due to its purpose and object, the environmental body agrees to the exoneration for the fact that it does not have significant effects on the environment, and, in the corresponding cases, an evaluation study of the mobility generated. In any case, the measures that will be adopted with respect to the large mobility generating centres that are foreseen will be defined.
j) Studies that guarantee compliance with the right to universal accessibility under non-discriminatory conditions for the use of public endowments and collective equipment for public use, as well as in residential and tourist buildings in accordance with the sectoral legislation of the Autonomous Community of the Balearic Islands.
Article 45 Special plans
1. Special plans are planning instruments that may be autonomous, when they are formulated for the establishment of sectorial, partial or specific ordinances, or development, when they develop territorial or municipal planning instruments. In the case of the self-employed, they shall justify the coherence of their determinations with those of those plans. When they are special development plans, they will adjust to the forecasts of the plans they develop.
In no case may special plans replace the general municipal plan in its function of comprehensive land management, or alter the classification of soil.
2. Without prejudice to those which may be approved under the sectoral legislation applicable by reason of the subject-matter, special plans shall have as their object:
a) The management of elements or groups protected by the legislation on historical heritage.
b) The protection of the landscape or communication routes.
c) The management, protection and conservation of the natural and rural environment.
d) The development and implementation of elements of the general and organic structure, and the management of general systems of road infrastructure, services and endowments not assigned to actions of urban transformation into urban land and urbanizable.
e) The ordering of the actions of interior reform, regeneration or urban renewal of those provided for in Article 23 of this law to be developed on urban land.
f) The adaptation of the networks of facilities to the historical-environmental conditions of the population nuclei.
g) The arrangement of transport and communications network installations and the service area of ports and airports in accordance with their specific legislation.
h) The development of spatial planning instruments.
i) Urban renewal and interior reform actions.
j) The planning of rural nuclei.
k) Any other similar purposes.
3. The approval of the special plans will enable the promoter and the competent administration to carry out the corresponding works and installations, without prejudice to the enforceability of the licenses and administrative authorizations that are mandatory and the provisions of sectoral legislation.
4. The special plans shall contain the determinations required by the corresponding territorial or general planning instruments or, in the absence of these, those proper to their nature and purpose, duly justified through an informative and justifying memory of the need or convenience of the formulation of the plan.
5. They shall also have, as a minimum, the development of the necessary supporting and complementary studies, the corresponding information and planning plans, and the appropriate standards and catalogues. It will include an evaluation study of the mobility generated which, where appropriate, will define the measures to be adopted with regard to the large mobility generating centres that are foreseen, and will incorporate the strategic environmental study as established in environmental legislation unless, due to its purpose and object, the environmental body agrees to the exoneration for the fact that it does not have significant effects on the environment.
6. When the special plan delimits and orders urbanistic actions of those foreseen in article 23 of the present law will incorporate:
a) An economic viability report analysing the profitability of the action, as well as an economic sustainability report, in which particular weight will be given to the impact of the action on the affected public finances, both formulated in the terms established by this law and, specifically, by article 47 and the state land legislation for the implementation and maintenance of the necessary infrastructures or the commissioning and provision of the resulting services, as well as the sufficiency and suitability of the land destined for productive uses.
b) An advance of the equidistribution.
c) The plan for rehousing and return under the terms provided for in the aforementioned state law, where appropriate.
Article 46 Detailed studies
1. The purpose of the detailed studies shall be, where necessary, to complete or, where appropriate, adapt the determinations of the detailed planning of urban and developable land, and to this end may provide or readjust, as the case may be:
a) The adaptation and readjustment of alignments and gradients indicated in the urban planning, with the conditions that this fixes and provided that the surfaces destined for road network or open spaces are not diminished.
b) The arrangement of the volumes in accordance with the specifications of the plan.
2. The detailed studies shall respect both the structural and detailed determinations of the urban planning of a higher hierarchy, without altering the use, the overall majority use, the maximum heights envisaged and the population density corresponding to the land within its scope. In no case shall they cause damage or alter or be able to alter the planning conditions of the confronting properties.
Article 47 Content of economic planning studies
1. The economic and financial study of the general plan shall contain the estimate of the economic cost of the urban transformation actions envisaged in the study, the identification of the public or private subjects responsible for its execution and the analysis of the public financing forecasts of those corresponding to the administration, as well as the establishment of the deadlines in which its development is foreseen.
2. The economic sustainability report, based on the determinations established in the general plan and in the development planning instruments updated at the time of its execution, is applicable to the actions referred to in article 23.2 of this law, except in those of endowment when they do not involve transfers of public land that require maintenance by the current administration. The report shall assess the impact of the action on the public finances affected by the implementation and maintenance of the necessary infrastructures or the commissioning and provision of the resulting services, in the terms established in state legislation.
Specifically and in relation to the economic impact on the local treasury, the maintenance costs for the implementation and provision of the public services necessary to meet the urban growth envisaged in the general plan will be quantified, and the amount of municipal income derived from the main local taxes will be estimated, depending on the planned building and potential population, evaluated according to the foreseeable socioeconomic scenarios until the buildings that the action entails are finished.
3. The economic viability report will be included in the general plan and in the planning instruments that develop it and will refer to the actions that increase the gross buildability index or change its global use with respect to the structural determinations established in the previous planning, applicable to those of new urbanization, endowment and urban renewal, as well as to the rehabilitating buildings, and will include a comparative balance relative to the economic profitability, in the terms established in the state legislation.
4. In the economic evaluations that will be carried out, an expert appraiser of recognised competence or an officially approved appraisal company will accredit the values of repercussion of land or sale of real estate products derived from the relevant market studies.
Article 48 Catalogues of protected elements and spaces
1. The municipalities shall draw up a catalogue in which assets such as monuments, buildings or spaces of historical, artistic, architectural, palaeontological interest, geological formations and singular geomorphological, archaeological, ethnographic, ecological or scientific elements shall be provided, either according to their singular characteristics or according to the sectoral legislation on assets of cultural value of the Balearic Islands, shall be subject to preservation, establishing the appropriate degree of protection and the types of intervention permitted in each case.
The cultural goods protected in accordance with sectoral legislation will be expressly included in these catalogues, and the degree of protection envisaged and the regulation of the permitted actions on these goods will be in accordance with the protection derived from this legislation.
They shall be formulated as normative documents forming part of the general plans and shall have as one of their purposes or, as the case may be, as their sole object the conservation of the elements indicated in paragraph 1 above.
3. The catalogues shall identify the goods subject to protection, contain the physical and legal information necessary in relation to these goods and shall establish the degree of protection to which they are subject and the types of interventions or possible actions, in accordance with the determinations established by the general or, where appropriate, partial or special planning of which they form part.
Article 49 Municipal ordinances on building, urbanization and advertising
The municipalities may formulate and approve as instruments of direct management applicable to urban land, urbanizable and rustic, ordinances of building, urbanization and advertising without in any case can regulate material aspects that this law reserves to the instruments of urban planning. Regulations shall determine the object and scope of these ordinances and the procedure for approving them.
Formation and approval of urban planning instruments
Article 50 Drafting of planning instruments
1. The professionals involved in the preparation and drafting of urban planning instruments, both as personnel at the service of the administration, as in the case of liberal professionals hired for this purpose, must have the qualifications required, in accordance with applicable law, to carry out the tasks entrusted. The identity and qualifications of the professionals involved shall, in any case, be included in the processing file of the instrument in question.
2. The bodies and administrative entities managing public interests and private persons shall collaborate in the drafting of town planning instruments and shall provide the bodies responsible for their formulation with the necessary documents and information.
Article 51 Suspension of approvals and granting of authorizations and licenses
1. The competent bodies for the initial approval of urban planning instruments may agree, for the purpose of studying the formulation or reform, the suspension of the processing and approval of development plans, management instruments, as well as the granting of all kinds of authorizations and planning licenses for specific areas or uses, and the possibility of submitting prior communications.
2. The initial approval of urban planning instruments will determine by itself the suspension provided for in the previous paragraph at least in those areas in which the new determinations involve a modification of the urban regime. The agreement by which the initially approved planning instrument is submitted to public information shall necessarily express the areas of the territory covered by the planning affected by the suspension. The publication of the provisional approval agreement of the planning instruments shall in itself determine the extension of the suspension.
3. While the processing of procedures, the granting of licenses and the presentation of prior communications in application of the provisions of this provision is suspended, the instruments may be processed, the licenses granted or the presentation of prior communications that are based on the current regime and are compatible with the determinations of the new planning initially or provisionally approved.
4. The suspensions of procedures, licenses and prior communications provided for in the preceding sections shall be effective:
a) For one year or until the initial approval of the planning instrument, in the case of paragraph 1 above.
b) During two years or until the provisional approval or, when there is no such procedure, the definitive approval of the planning instrument, in the case of paragraph 2 above.
c) During one year or until the final approval of the planning instrument, in the case of the last paragraph of paragraph 2 above.
5. When the public information procedure subsequent to the initial approval must be repeated, it may be expressly agreed to extend the term of paragraph 4.b) above up to a maximum of three years, counting from the entry into force of the first suspension.
6. The periods provided for in this provision may be accumulated up to a maximum of four years, provided that the successive initial and provisional approvals that determine them are agreed.
7. The final approval of the planning instrument in process shall in itself entail the lifting of the suspensions in force. They shall also be lifted by the express agreement of the competent body in the event of paragraph 1 above when it is agreed to render null and void the processing of the new planning instrument or its modification or revision.
8. Once the effects of the suspension are extinguished in any of the cases provided for in this provision, no new suspensions with an identical purpose may be agreed on all or part of the same areas, until at least five years have elapsed from the date of extinction of the effects.
The same purpose shall be understood to be the formulation of a planning instrument that has the same objectives as the one that gave rise to the first suspension.
9. All the agreements mentioned in the previous sections shall be published in the Official Gazette of the Balearic Islands, in one of the most widely distributed newspapers in the Balearic Islands and at the corresponding address or electronic access point.
10. Applicants for licences who have applied for or who have submitted communications prior to the publication of the suspension and who are unviable under the proposed arrangement shall be entitled to compensation for the cost of the projects or the part thereof that must be rectified and to the refund, where appropriate, of municipal taxes.
Article 52 Progress of the plan
1. In the procedures for the first formulation or revision of the general plan and prior to its initial approval, an advance of the plan shall be formulated, setting out the criteria, objectives and general solutions adopted. The advance will be submitted to public information for a minimum period of one month so that suggestions or other planning alternatives can be formulated.
An advance of a modification of the general plan or of the first formulation, revision or modification of any other planning instrument may also be formulated and shall be subject to the same procedure.
Article 53 Formulation of the planning
1. The town councils shall formulate the general plans within the periods established for this purpose by the territorial planning instruments. If there is no provision to this effect in the aforementioned instruments of territorial planning, they should be formulated within the period set by the respective island council. In the event that the general plans are not formulated within these periods, the Island Council may subrogate itself to the powers of the municipality to draft and process them.
When the town council agrees to draw up the general plan, it must request the necessary information from the bodies of the General State Administration, the Government of the Balearic Islands and the corresponding island council. This information, in the case of the bodies of the Government of the Balearic Islands and the island councils, shall be provided, together with the technical and legal justification, where appropriate, within a maximum period of two months.
2. Detailed planning plans and protection catalogues shall be formulated by the municipalities; partial plans, special plans and detailed studies may be formulated by the municipalities and special town planning entities, as well as by private individuals. The bodies responsible for the direct execution of the elements of the general and organic structure and of the general systems provided for in this provision may formulate the special plans referred to in Article 45.2.d) and g) of this Act.
3. When it comes to actions on the urban environment in the terms established by state land legislation, public administrations and public entities that are attached, as well as communities and groups of communities of owners, housing cooperatives formed for the purpose, people owning land, buildings, buildings and urban estates, persons holding rights in rem or use, and companies, entities or societies intervening on behalf of any of the foregoing subjects, may promote urban planning through the corresponding planning instruments and whose object is the interior reform, regeneration and urban renewal, in accordance with the provisions of this law and state land legislation.
4. Partial plans, special plans and detailed studies established by the planning shall be formulated within the time periods provided in the general plan. In the event that the general plan had not provided for deadlines, these shall be eight years.
5. The adaptations of the planning instruments to the instruments of territorial planning will be formulated in accordance with what is determined by the regulatory legislation.
Article 54 Powers in the approval of planning
1. Municipalities shall be responsible for the initial approval and processing of all urban planning instruments provided for in this Act. The Island Council shall be responsible for the final approval of the general plans and the rest of the urban plans, subject to provisional approval by the municipality, except in the following cases:
a) The urban planning instruments of the municipality of Palma, whose final approval will correspond to the municipality itself in the terms set by Law 23/2006 of 20 December, capital.
b) Detailed development plans, partial plans and special plans, as well as their modifications, the final approval of which shall correspond to the municipalities in municipalities with more than 10,000 inhabitants.
c) Detailed studies, which shall be approved by the municipality.
In cases of municipal final approval of the planning instrument, there shall be no provisional approval after the initial approval has been carried out and after public information and participation has been submitted.
2. The body that definitively approves the plans provided for in this article shall send a completed copy to the Archives of Town Planning of the Balearic Islands and to the town hall or island council, depending on who has approved it.
Article 55 Processing of planning
1. The period for adopting the agreement for the initial approval of planning instruments for a particular initiative shall be three months from receipt of the complete documentation, including that relating to the mandatory environmental processing.
2. Once the urban planning instrument has been initially approved, all the documentation, including the required feasibility reports and economic sustainability reports, shall be submitted to public information together, where appropriate, with the documentation corresponding to its environmental processing.
3. This public information procedure shall have a minimum period of forty-five days for those instruments that involve ordinary strategic environmental assessment and thirty days for those that do not and shall be announced, at least, in the Official Gazette of the Balearic Islands, in one of the newspapers with the greatest circulation on the corresponding island and in the electronic headquarters of the administration that handles the procedure, and shall include the complete documentation that integrates the instrument.
The publication of the public information announcement, both in the newspaper and in the Official Gazette of the Balearic Islands, will clearly state the uniform resource locator of the electronic headquarters for accessing the documentation.
During the public information period, a report will be requested from the administrations or the state, autonomous or insular entities whose competences may be affected. In any case, a mandatory report will be requested from the body exercising the urban planning powers of the corresponding island council.
4. In view of the results of the public information, of the reports issued and of the environmental processing, the appropriate modifications will be introduced, submitting to a new public information if these were substantial. If they are not, or once the new public information procedure has been resolved, the issuance of the preceptive previous reports will be requested, if applicable, and, once the resulting modifications have been introduced, they will be provisionally or definitively approved, as the case may be.
5. The term to adopt the provisional approval agreement of the planning instruments of development of the general plan that are of particular initiative and that are subject to this procedure will be of six months from the initial approval. The calculation of the period will be interrupted for the obtaining of reports from other administrations and the contribution of complementary documentation on the part of the promoter.
6. When the council makes the final approval of general plans, detailed development plans, partial plans and special plans of municipal or private initiative, may only be carried out with the prior report of the island council in relation to the appropriate considerations for reasons of supramunicipal interest, legality, adequacy to instruments of regional planning and, where appropriate, to urban instruments of higher rank. In the case of adaptations of general plans to island territorial plans, and with regard to their adaptation to territorial planning instruments, the report will be binding. This report shall be sent within three months of receipt of full documentation, in the case of first formulations or revisions of general plans or detailed management plans, and one month in the rest of plans. Once this period has elapsed, it will be understood that the report has been issued in a favourable manner and it will be possible to continue with the processing.
7. For the final approval of the general plan by the island council, the municipality, once the plan has been provisionally approved, will send the complete file to the island council so that, if necessary, it can make its final approval within a maximum period of six months.
In the processing of the formulations, of their revisions or of the alterations of the general plans that correspond definitively to approve the insular councils, it will be understood that there is positive administrative silence if the definitive resolution is not notified within six months from the reception of the complete file by the competent organ of the insular council for its definitive approval.
8. The same rule foreseen in the previous section will apply to the rest of the town planning plans, the definitive approval of which corresponds to the corresponding bodies of the Island Council, except for private initiative plans, in which it will be understood that there is positive administrative silence if the definitive resolution is not notified within three months of the receipt of the complete file by the competent body for its definitive approval.
9. In the processing of the detailed development plans and the rest of the urban development plans to be definitively approved by the municipalities, the positive administrative silence provided for in the previous paragraph will occur if the final resolution is not notified within three months of receipt of the prior report of the island council or from the expiry of the period available for its issuance, or, if it is later and mandatory, from receipt of the pronouncement of the environmental body.
Silence will be negative when the report of the Island Council is unfavourable in matters within its competence in accordance with the provisions of section 6 above.
10. In no case shall it be understood that definitive approval is produced by positive administrative silence if the corresponding urban plan does not have the documentation and determinations established by this law and its regulatory development for each type of instrument. Likewise, the act of approval may not be considered to exist when the determinations of the instrument are contrary to this law, to the regulatory development, to the instruments of territorial planning or, as the case may be, to an urban plan of a higher hierarchy, or when the approval of the urban plan is subject to special requirements in accordance with this law or other sectoral legislation.
Article 56 Municipal inactivity and subrogation of island councils
1. The corresponding insular council may be subrogated ex officio upon request, for reasons of public interest, in the municipal competence for the formulation or processing of the figures of urban planning provided for in this law, if there is a failure to meet the deadlines established. In the event of non-compliance with the processing deadlines established with respect to urban development plans, subrogation may occur at the request of the interested parties.
2. When the period established for adopting the resolution relating to the initial or provisional approval of the development plan has elapsed, it shall be understood as initially or provisionally approved, as appropriate, by positive administrative silence, provided that the documentation is complete at the beginning of the period’s calculation. In this case, the persons who promote it may urge the subrogation of the competent organ of the Island Council for the definitive approval of the development plan, which will be responsible for continuing the processing of the file until its final approval. Subrogation may also occur at any time during the process if there is municipal inactivity.
3. The body that initiates a subrogation file shall grant a hearing to the originally competent body and shall require it to exercise its powers. If, within two months, it has not exercised them, it will ask it, once the subrogation has been agreed, to send it a certified copy of the documentation included in the file, which will be sent to it within ten days following the complaint.
4. The costs of drawing up the documents for the formulation and processing of the urban planning of municipal initiative and the necessary administrative activity shall be borne, in any case, by the respective municipality.
Validity, modification and revision of urban planning
Article 57 Indefinite validity of urban planning instruments
The instruments of urban planning shall have indefinite validity and shall be subject to suspension, modification and revision.
Article 58 Revision of the general plan and detailed management plans
1. The general plan shall be subject to review upon expiry of the time limit set or upon the occurrence of the circumstances specified for that purpose.
2. The island councils, if the circumstances so require, may order ex officio, having granted a hearing to the affected municipalities, the early revision of a general plan, setting for this purpose a period which, if exceeded, will enable the respective island council to subrogate the municipal competence for its drafting and processing.
3. Circumstances justifying the adoption of the agreement to revise a general plan, without prejudice to the processing of a specific modification when it occurs, shall be substantial alterations to urban implementation models, land classification or determinations for urban development, as well as malfunctions arising from the exhaustion of the capacity of the plan by real needs for land for certain uses and economic activities.
4. The general plan shall also be subject to revision when, due to a cumulative effect of successive modifications undergone since its formulation or last revision, the circumstances referred to in paragraph 3 above are present. In any case, its alteration will be cause for revision by means of a modification that entails, by itself or in union with those approved in the two previous years, the forecast of urban transformation actions that suppose an increase of 20% of the population of the municipality or 10% of the urban land surface, of any use, of its territorial scope.
5. The detailed planning plans will be revised according to what they foresee, also when the council appreciates it and so agrees for justified reasons of opportunity or change in the urbanistic situation of the real estate market in your municipality.
Article 59 Modification of urban planning instruments
1. The modification of the determinations of the instruments of urban planning shall be carried out in accordance with the provisions of this law governing its formulation.
In the case of the general plan, modification shall be understood as the introduction of any type of change in its determinations that does not entail its revision in the terms established in the previous article.
2. If the modification of an urban planning instrument involves an increase in building roof or a change in land use, whose impact value was higher than the use attributed by the previous planning and is justified in the formulation of an economic feasibility report based on a market study in the terms established in Article 47.4 of this law, proceed to carry out the assignments of land for endowments and for the public percentage of capital gains established in Articles 29 and 30 of this law, applied to the increase in use attributed.
3. Proposals to modify an instrument of urban planning will reason and justify the opportunity and convenience of the initiative in relation to competing public and private interests. The body competent to process the modification will adequately assess the justification of the proposal and, in the event of a negative assessment, will reject it with reasons.
4. Proposals for modifications to urban development plans shall contain determinations appropriate to their specific purpose, content and scope, from among those of the modified planning instrument and, in any case:
a) Identify and describe, in written and graphical documentation, the determinations and planning regulations subject to modification.
b) They shall establish, by means of the urban planning regulations and the corresponding planning plans, the determinations that are introduced with the modification and that replace the previous ones.
c) Incorporate, in cases subject to strategic environmental assessment, the documents required by environmental assessment legislation.
d) Incorporate an evaluation study of the mobility generated, in cases where its specific purpose requires it.
e) Incorporate the economic viability report and the sustainability report, in the case of its mandatory formulation, in the terms established in the present law and in the state legislation.
5. Proposals for the modification of any urban planning instrument which indirectly or directly involve an increase in the building or density parameters in force, or a modification of land use, shall include in the file to be processed the identity of all the owners or holders of other real rights over the affected properties during the five years prior to their initiation, as stated in the register or instrument used for the purpose of notifications to interested parties, in accordance with the relevant legislation.
Article 60 Modification of urban systems of free spaces or green zones
1. The modification of figures of urban planning whose purpose is to alter the zoning or urban use of free spaces or green areas considered by urban planning as general or local urban systems, shall ensure the maintenance of the surface and functionality of the systems subject to the modification, with reference to the nucleus of settlement affected.
2. In the event that the modification referred to in paragraph 1 above affects elements that make up general urban systems, it shall be subject to the opinion of the Consultative Council of the Balearic Islands. In this case, the definitive resolution of the file may only be approved if the opinion of the Consultative Council is favourable. The lack of express resolution within the term in the case of the modifications regulated in paragraph 1 above shall be understood as negative.
3. The procedure regulated in section 2 above shall not apply to the aforementioned modifications that are included in the procedure for revising a general plan, nor to the adjustments in the delimitation of the aforementioned spaces that do not alter their functionality, nor their surface, nor their location in the territory.
4. The proposed modifications regulated in paragraphs 1 and 3 above shall justify in the relevant memorandum and by means of the necessary graphic documentation that the provisions of this Article are complied with.
Article 61 Adaptation to flood regulations
Without prejudice to the direct application of the determinations of the regulations that have this character and when the latter does not establish a specific transitory regime:
a) The full adaptation of the planning instruments to this regulation shall only be required in the procedures of first formulation or revision of those that have not yet begun their public information procedure upon its entry into force.
b) The rest of the modifications of the planning instruments shall only be adapted to the determinations of the regulations that affect their specific content, which shall only be required when these regulations have entered into force prior to the commencement of the public information procedure for them.
Article 62 Suspension of the planning period
1. The island councils, for justified reasons of public interest, after hearing the municipality or affected municipalities, may suspend the validity of the urban planning instruments referred to in this law, with the effects indicated in article 51 above, in all or part of its scope, and agree to its modification or revision.
2. In the event of suspension of the validity of a planning instrument referred to in the preceding paragraph, the corresponding island council shall determine in the agreement adopted, simultaneously, the initial approval of provisional planning rules that supersede the plan subject to suspension, until its modification or revision is approved.
3. The provisional rules referred to in the previous section, which shall include a report – analysis regarding the possible significant effects on the environment, shall be the object of public information by means of their full publication in the Official Gazette of the Balearic Islands and at the address or electronic access point of the Island Council, for a period of twenty working days; provisional approval thereof shall not be necessary.
Before their final approval, which will take place within six months of the initial approval agreement, they will be submitted to the decision of the environmental body.
4. The powers attributed to island councils by virtue of this article shall also be applied at the request of the municipalities concerned when they demonstrate justified reasons of public interest, and in particular in the case of judicial annulment of plans to avoid the negative effects arising from the recovery of the validity of the planning prior to that annulled. In this case, the provisional rules may include the determinations of the cancelled plan not affected by the declaration of nullity. During its processing, the regime foreseen in article 51.3 of the present law will be applicable.
5. Justifiably, the time limits may be reduced by half, except for that corresponding to public information.
Article 63 Private initiative plans
1. Without prejudice to the provisions of Article 53.3 of this law, public entities and individuals may draft and submit to the competent administration for processing the instruments of urban planning development of the general plan when it so provides and within the time limits set.
2. For the formulation of private initiative planning instruments, prior municipal authorization, the necessary information may be requested from public agencies, which must provide it, and occupy the private properties necessary for this formulation, in accordance with the state law of compulsory expropriation.
3. The planning instruments of a particular initiative shall contain, in addition to the documentation that is generally necessary, the following:
a) Memory justifying its necessity or convenience.
b) Name, surname and address of the affected owners.
c) Mode of execution of the urbanization works and provision for their future conservation.
d) Commitments to be entered into between the developer and the town council, and between the developer and future owners of plots.
e) Guarantees of the exact fulfilment of the commitments.
f) Economic means of all kinds with justification of the economic viability of the development.
g) Times foreseen for the commencement and completion of the urbanisation works, as well as those relating to the building from the completion and reception of the urbanisation works, in the terms established in article 114 of this law.
4. In these cases, on the occasion of the processing of public information and for the same period, personal notification shall be made to the owners of the land within its scope, and the act of final approval may impose the conditions, modalities and deadlines that are appropriate.
Effects of approval of plans
Article 64 Publication of plans
1. The complete content of the urban planning instruments shall be public and any person may at any time consult it and be informed of it, in person, at the town hall of the term to which it refers or at the corresponding island council, or at the corresponding address or electronic access point, or at the Archives of Urbanism of the Balearic Islands.
2. Interested parties may apply to the competent town hall for the issue of urban development certificates for specific properties. The certificate, signed by the secretary or the secretary of the town hall, will be issued within a maximum period of one month from the submission of the application, will express the urban planning regime applicable to the property or estates at this time, and will indicate whether or not it can be built on. The certificate will be valid for six months from its notification to the person who has requested it.
3. Advertising relating to private initiative developments will express the date of approval of the corresponding plan and may not contain any indication against its clauses.
Article 65 Execution of urban planning instruments and response to the participation process
1. The urban planning instruments will be executive from the publication in the Official Gazette of the Balearic Islands of the definitive approval agreement and the corresponding urban planning regulations.
2. For the purposes provided for in state land legislation, the administration that has completed the public information procedure of the planning instrument shall communicate a reasoned reply to the citizens who have made allegations during the aforementioned procedure. In the case of the procedures for the first formulation or revision of the planning instrument, this communication may be made jointly by means of an announcement in the Official Gazette of the Balearic Islands, in the most widely distributed newspaper in the Balearic Islands and in the electronic access point of the administration that has submitted the instrument to the public information procedure, by means of which it shall be indicated that the participation memory document and the reports that have analysed the respective allegations are made available to citizens.
Article 66 Mandatory nature of the plans
1. Individuals, like the administration, shall be obliged to comply with the provisions on urban planning contained in this law and in the instruments of urban planning.
2. The approval of the plans shall not limit the powers corresponding to the different administrations for the exercise of their powers, according to the legislation applicable to the matter.
Article 67 Declaration of public utility
The approval of the plans will imply the declaration of public utility of the works and the need to occupy the goods, rights and legitimate patrimonial interests necessary for their execution, for the purposes of expropriation or imposition of easements.
Directly applicable rules
Article 68 Directly applicable rules
1. In accordance with state land legislation, installations, constructions and buildings shall, in their basic aspects, be adapted to the environment in which they are located, and to this effect:
(a) Constructions in immediate locations or forming part of a group of buildings of an artistic, historical, archaeological, typical or traditional character shall harmonise with those buildings, or where, in the absence of sets of buildings, there is one of great importance or quality of the characteristics indicated.
b) In places with open and natural landscapes, whether rural or maritime, or in the perspectives offered by urban areas with historical-artistic characteristics, typical or traditional, and in the vicinity of roads and pathways of picturesque trajectories, the situation, the mass, the height of buildings, the walls and enclosures or the installation of other elements shall not be allowed to limit the visual field in order to contemplate the natural beauties, to break the harmony of the landscape or to disfigure the perspective of the landscape itself.
2. The urban planning, when defining the ordination, will respect the established in the previous point.
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Article 69 Spheres of public and private action
The public administration shall be responsible for the management and control of the execution of urban planning. The activity of execution will correspond to the public administrations or to the private initiative according to the system of management that is determined and of conformity with the established in the present law.
Article 70 Budgets and modalities of execution
1. The execution of planning requires the approval of the most detailed planning instrument required by the soil class in question.
2. The execution of the planning has to be carried out by means of the development of the urbanistic action that corresponds between those established in the article 23 of the present law.
Article 71 Instruments of execution
1. The material execution of the actions will be carried out by means of urbanisation projects and projects for the provision of services or ordinary works.
2. Urbanization projects shall be aimed at the comprehensive development of urbanization works derived from the determinations of the detailed planning defined by the planning instruments and:
a) May not contain determinations on planning or regime of land and building.
b) They will detail and program the works that they understand with the necessary precision so that they can be executed by competent technical personnel different from the person who is the author of the project.
c) They may not modify the provisions of the planning instrument that they develop, without prejudice to the fact that they may make the adaptations required by the material execution of the works.
d) Respect the conditions of accessibility and removal of architectural barriers regulated in the sectoral legislation.
The town councils will approve initial and final urbanization projects following the procedure established in Article 79.4 of this law. Once the project is initially approved, a report will be requested from the public bodies and a period of one month will be established for the affected service supply companies to give their opinion on the project.
The promoters of urbanizations of particular initiative will constitute, before the beginning of the works, the guarantees required by regulation, that in defect of express regulation will be of 6% of the budget of the works.
3. The projects of endowment of services or ordinary works will have as object the development of partial aspects for the execution of some individualized service of the urbanization as complement of the projects of building or rehabilitation. They shall be governed by the provisions of local legislation and shall be subject to the limitations established for urbanization projects.
4. The projects to which the two previous sections refer will resolve the connections of the services that are implanted with the pre-existing general ones and they will justify that these have the endowment or the sufficient capacity.
Article 72 Scope of actions
1. The areas of arrangement of the isolated and building actions will be identified in the corresponding planning and its execution will be established in the agreements approving the actions themselves.
2. The scope of the town-planning actions carried out by means of action units, in accordance with the provisions of Article 23 of this Act, must be delimited in such a way that these units allow the joint fulfilment of the duties of cession, equal distribution and urbanisation of the entire surface depending on the result of the corresponding economic sustainability report.
3. Immediate units of action may not be delimited to land of compulsory and free transfer without including in these the corresponding part of the land indicated, or define units of action within the same sector of land for development between which there are differences in urban use greater than 15%.
4. The areas of the units of action may be defined by general plans, detailed management plans, partial plans and special plans, as well as by the delimitation procedure regulated in Article 73 below.
Article 73 Procedure for delimitation of units of action
When the delimitation of the action units is not contained in the planning instruments or when its modification or suppression is necessary depending on the results of the economic sustainability report and the economic viability report, the municipality may approve it in accordance with the following procedure:
a) Once the delimitation has been initially approved, the complete file, including the sustainability report and the economic viability report, shall be submitted to the public information procedure for a period of twenty days, by means of an announcement in the Official Bulletin of the Balearic Islands and at the corresponding address or municipal electronic access point. The affected owners will also be given a hearing for an identical period.
b) The final approval of the delimitation will be pronounced on the allegations presented. If there were to be an increase or decrease in the surface area of the higher area by 10% with respect to the initial proposal, prior to the final approval, the procedure for hearing the affected owners shall be repeated.
c) The effectiveness of the approved delimitation will be deferred until the publication of the final approval agreement in the Official Gazette of the Balearic Islands. Likewise, the approved delimitation will be published at the corresponding address or municipal electronic access point and will be communicated to the Archives of Town Planning of the Balearic Islands and to the corresponding insular council.
Article 74 Obtaining land
1. The acquisition of the land necessary for the implementation of the endowments and public infrastructure provided for in the planning shall be carried out by means of:
a) The free and compulsory transfer resulting from the corresponding equidistribution derived from the mandatory reparcelación project.
b) The assignment by virtue of an urban development agreement.
c) The free and obligatory or, where appropriate, voluntary cession, for the purpose of complying with the condition of site of article 25 of this law.
d) Acquisition by expropriation, direct occupation, purchase or exchange.
2. The acquisition of the land referred to in paragraph 1.a) above may be carried out prior to the approval of the instrument of equidistribution, by means of its direct occupation in the terms established in article 96 of this law.
Article 75 Systems of action
1. The obtaining of land and the direct execution of the general systems not attached and not included in actions of urban transformation will be carried out by means of expropriation.
2. The execution of the actions of urban transformation will be carried out by means of the system of reparcelación in any of its modalities or by means of the application of the system of expropriation.
The modalities of the reparcelación system will be:
The current administration shall choose the applicable system of action and its modality according to the needs and economic-financial means at its disposal, the collaboration of the private initiative and other concurred circumstances, and shall give preference to the reparcelación system, in the compensation modality, except when reasons of opportunity, urgency or necessity demand the application of the cooperation or expropriation system.
3. When the planning does not establish the system, its determination shall be carried out with the delimitation of the unit of action. If the owners who represent more than 60% of the total surface area of the unit of action request, in the process of public information of the procedure for its delimitation, the application of the modality of compensation, the administration shall agree with prior hearing of the other owners of the unit of action.
4. In any case, the expropriation or cooperation system shall be applied in the direct or indirect management modality when the Compensation Board or, as the case may be, the person who is the sole owner of all the land in the action unit fails to comply with the obligations inherent to the compensation modality.
5. The modification or the first indication of the system and the modality of action shall be carried out by means of the procedure provided for in article 73 above.
6. In the reparcelación system it shall always be feasible to formulate the voluntary reparcelación, which may be accompanied by specific procedures for the material execution of the urbanization provided that this is carried out by the affected owners.
Article 76 Development costs to be borne by the owners and right of rehousing
1. The following concepts shall be included in the development costs to be borne by the owners concerned:
(a) works on the road network, drainage, water and electricity supply, public lighting, trees and gardening and other urban services provided for in the plans and projects and which are of interest to the sector or unit of action, without prejudice to the right to reimbursement of the costs of installing water and electricity supply networks at the expense of the undertakings providing the services, except for the part to which users must contribute in accordance with the regulations.
b) Compensation for the demolition of constructions, destruction of plantations, works and installations required for the execution of the plans, as well as compensation for forced relocation or, as the case may be, cessation of activities.
c) The cost of partial plans, urbanisation projects and compensation or reparcelling projects and all those technical, legal or economic documents required for the approval and execution of the urban transformation action.
d) The costs of formalisation and registration in the corresponding public registers of the agreements and legal operations derived from the urban management instruments, as well as the management costs and the benefit of the promoter of the action, duly justified, in accordance with the principles of proportionality and unjust non-enrichment.
e) Compensation arising from the extinction of real or personal rights, in accordance with applicable valuation legislation.
f) The expenses generated, if any, for the effectiveness of the right of rehousing in the terms established in state legislation and in section 4 and following of this article.
2. The owners affected by the action will make the payment of all development costs preferably in cash, by paying the corresponding development fees. It may also be carried out, with prior agreement with the interested owners, with the transfer (by these persons) free of charge of building land of equivalent value to the expenses and in the proportion deemed sufficient to compensate them, on the basis of the results of the mandatory economic viability report.
3. Will be expenses of urbanization that will be assumed by the people owners as individualized load of the corresponding lands, and that will not be in charge of the set of the community of reparcelación, the following ones:
a) The necessary expenses to prepare the land to execute the urbanization works when the mentioned preparation requires disproportionate actions as a consequence of the actions or omissions of the corresponding owners. For these purposes, actions or omissions involving actions that cannot be assumed by the reparcelación community will be the works, installations, earthworks, discharges, extraction of aggregates, topographical and morphological alterations and any other objective variation of the land that have been executed without licenses, orders or administrative authorizations or without complying with them. This regime will also apply when land preparation works are a consequence of the obligations imposed on land owners by the regulations relating to contaminated soils, or the failure to implement restoration programmes imposed by licences or authorisations granted, as well as when this obligation has been imposed by administrative resolution issued by the competent administration in accordance with the applicable sectoral legislation.
b) Indemnities corresponding to the extinction of leases and other personal rights that have been constituted after the initial approval of the project of reparcelación or planning. These expenses shall be assumed by the persons who own the contracts in question.
4. In the development of the modalities of the system of urban action by reparcelación, the right of rehousing shall be recognised in favour of legal occupants of dwellings that constitute their habitual residence, provided that they fulfil the conditions demanded by the protective legislation and provided that, in the case of owning persons, they are not awarded a contract for urban use or a substitute compensation, equivalent or superior to a building that can be used freely without urbanisation, greater than double the maximum surface area established by the public protection housing legislation.
5. The reparcelación community shall be obliged to make effective the right of rehousing and to compensate the legal occupants affected by the costs of relocation and temporary accommodation until this right is made effective.
6. Housing shall be made available to the legal occupants affected with the sale or rental conditions in force for public protection housing, within the limits of the surface area of the protective legislation, in order to give effect to the right of rehousing. Where the occupant is an occupant by virtue of a right in rem, access to the new dwelling shall be offered under the same title. If the occupation takes place by virtue of a personal right, the rehousing shall take place by virtue of the same right and with the same duration as that corresponding to the original title.
The right of rehousing shall become effective in the same field of action, except in cases where this is not possible due to the type of building or the intended uses or, exceptionally, for other duly justified reasons. In these cases, the criterion of greater proximity to the original location shall apply. It shall include, where appropriate, the right to temporary accommodation or its economic equivalent, in conditions analogous to those of the original dwelling, as long as the rehousing is not effective.
Article 77 Obligations and charges
1. The obligations and burdens of the persons owning the land referred to in this Chapter shall be fairly distributed among them, together with the benefits derived from planning, as freely agreed through reparcelling.
2. Failure to comply with the obligations and burdens imposed by this Act shall entitle the competent administration to expropriate the land concerned. Likewise, in cases of non-compliance, the enforcement procedure may be applied.
Article 78 Reparcelation
1. The reparcelación is a system of action that consists of the grouping of properties within the scope of an action of urban transformation for its new division adjusted to planning, with allocation of the resulting plots to interested persons in proportion to their respective rights, and to the administration of land and plots that correspond to it in accordance with this law and planning.
2. The reparcelación will aim to distribute fairly the benefits and burdens of urban planning, regularize the configuration of the farms and locate their use in areas suitable for building in accordance with the planning.
3. The reparcelación can be simply economic when its effects are limited to the determination of replacement compensation that proceed between the people affected.
It will have this character, unless all the owners affected decide otherwise, which is done in the areas of urban land with the building consolidated in more than two thirds of the area suitable for building and in which the planned management maintains the existing parcel structure and does not provide for the demolition of buildings except in the unique cases in which it is necessary to obtain endowments.
4. Reparcelling may also be voluntary, in continuous or discontinuous areas, when so agreed by all persons owning the action or requested by the sole owner. It will also be applicable to the normalization of properties.
5. In the actions of endowment, the equidistribution of the increase of use will take place in regime of horizontal property and in proportion to the respective quotas when corresponds the adjudication, even forced, of parts of the building in exchange of the primitive properties or of the expenses of the corresponding building, rehabilitation or improvement.
Article 79 Procedure
1. The file of reparcelación will be understood initiated with the definitive approval of the delimitation of the sector or the unit of action that will be executed by this system, or by that of the instrument of urban planning that contains this delimitation.
2. The initiation of the reparcelación file will entail, without the need for an express declaration, the suspension of the granting of licences for parcelling and building within the scope of the action until the agreement approving the reparcelación is signed administratively.
Applicants for licences applied for prior to the initiation date of the reparcelación file shall be entitled to compensation in the manner indicated in article 51.10 of the present law. Licenses granted prior to the date of initiation of the file that are incompatible with the execution of the planning may be annulled after the corresponding compensation for damages.
3. They may formulate the reparcelación project:
a) Interested owners who represent more than 60% of the reparcelable surface, in the three months following the approval of the delimitation of the scope of action.
b) The city council or the urban entity acting:
i. By direct management, ex officio or at the request of any of the owners affected, when they had not made use of their right or had not remedied, within the period set for them, the defects that had been appreciated in the project they had formulated.
The projects drawn up ex officio shall endeavour to comply with the criteria expressly stated by the interested parties in the three months following the approval of the delimitation of the unit of action.
ii. By indirect management, when the acting administration chooses to select a private concessionaire for the public service of urbanization of municipal ownership, as established in Article 25.2.d) Law 7/1985, of April 2, regulating the bases of local regime, on the basis of application of public sector contract legislation, with the prior formulation and approval of a set of conditions that guarantees the principles of transparency, publicity and competition, and the weighted regulation of lower execution costs attributable to the affected owners, shorter development periods and the lesser benefit of the manager for the development of the service.
4. The projects will be submitted to public information for one month, with a personal summons from the interested parties, and will be approved by the city council or, where appropriate, by the urban planning body that is subrogated to municipal powers.
Article 80 Proposed reparcelling
1. The reparcelling project shall take into account the following criteria:
a) The right of the owners shall be proportional to the area of the respective plots at the time of approval of the delimitation of the scope of action. However, in discontinuous polygons it will be necessary to take into consideration the weighting of the location in the valuation of the properties, on the basis of the formulation of the economic viability report.
b) The resulting plots to be awarded will be evaluated with objective and general criteria for the whole area in accordance with their use and buildable volume, and depending on their location, their characteristics, the degree of urbanization and the destination of the buildings.
In order to guarantee the fair distribution of benefits and burdens in the equidistribution process, the weighting coefficients shall be updated in the terms established in article 24.6 of this law. The updating, by means of the corresponding modification of the plan, will be processed and approved jointly with the reparcelación project.
c) Whenever possible, an attempt shall be made to ensure that the awarded properties are located in a place close to that of the old properties of the same owners.
d) When the small amount of the rights of some owners does not allow independent properties to be awarded to all of them, the resulting plots will be awarded pro-indiviso to these owners. However, if the amount of these rights does not reach 15% of the minimum building plot, the award may be replaced by cash compensation.
e) With the purpose of avoiding proindivisos, after the public exhibition of the reparcelación and during a maximum period of fifteen days, the interested persons may make reciprocal requirements to replace the condominium quotas foreseen in the project with cash compensations. The request will be made with a notarial deed and will offer simultaneously and alternately the payment or collection of the compensation in cash, and a period of ten days will be given for the required person to choose whether to pay or charge at the same unit price. The payment or consignment of the compensation will be subject to financial guarantee prior to the approval of the reparcelación project. If an owner does not comply, within the established period, with a duly formulated request, it will be understood that he chooses to collect and the reparcelación will be approved accordingly. The payment of compensation shall be made within one month of notification of the reparcelación agreement to the purchaser of the condominium quotas.
f) In any case, the award differences will be the object of economic compensation between the interested persons and will be valued at the average price of the resulting plots.
g) Plantations, works, buildings, constructions, installations and improvements that cannot be conserved will be valued independently of the land and their amount will be paid to the interested owner, charged to the project as urbanization expenses.
2. In no case may separate areas of less than the minimum building plot or which do not have the appropriate configuration and characteristics for building in accordance with the planning be awarded as separate estates.
3. They will not be the object of new adjudication, conserving the primitive properties, without prejudice to the regularization of boundaries when necessary and the economic compensations that proceed:
a) Land built in accordance with the planning.
b) Farms not built in accordance with the planning, when the difference in more or less, between the use that corresponds to them according to the plan and that would correspond to the owner in proportion to his right in reparcelación, is less than 15% of the latter.
4. In urban land, the rights of owners in the reparcelación will be regulated by the value of their respective plots, in accordance with the provisions of basic state legislation.
Article 81 Effects of the reparcellation project
1. The agreement to approve the reparcelación project shall have the following effects:
a) The transfer of rights to the municipality in which it acts, in full ownership and free of charge, of all land of compulsory transfer for incorporation into the patrimony of the soil or its affectation in accordance with the uses provided for in the plan.
b) The subrogation, with full real effectiveness, of the old plots by the new plots.
c) The real affectation of the awarded plots to the fulfillment of the charges and to the payment of the inherent expenses to the corresponding modality of action.
2. The approval of an equidistribution project in a horizontal property regime applicable to the endowment actions will produce the following effects:
a) The adjudication of the property in proindiviso for the purposes of its distribution in a horizontal property regime in the proportion resulting from the successful bidder, in the event of its selection by tender, together with the owners and the occupation of the plot by the former, for the purposes of the execution of the works.
b) The constitution of a guarantee for the amount of the building or rehabilitation action programme in the terms established in article 117.2.b) of the present law, which will include, where appropriate, urbanisation costs.
3. The effectiveness of the reparcelación project will require notification of its definitive approval to all the interested owners and proof that payment or deposit of the corresponding indemnities has been made, as the case may be.
Article 82 Entry in the Land Registry
1. The competent body for the final approval of a project of reparcelación, both land and a project of equidistribution in horizontal property, will issue a certificate, in accordance with the provisions of the mortgage legislation, for the registration of the project in the Land Registry. In the certificate, in addition to the final approval agreement, it will be recorded compliance with the conditions of effectiveness indicated in the previous article and the administrative firmness of the final approval of the project.
In the case of voluntary reparcelación, the presentation of the public deed and the certificate of the agreement of approval of the reparcelación will be sufficient for the inscription in the Registry of the Property.
2. The physical and legal situation of the properties or rights affected by the reparcelación and the resulting one will be reflected in the Land Registry, in accordance with the provisions of the mortgage legislation in the form to be determined.
Modality of compensation
Article 83 The Compensation Board
1. In the modality of compensation, the owners will constitute a Compensation Board, unless all the land belongs to a single owner, provide the land of compulsory transfer, formulate the reparcelación project and carry out at their expense the urbanization in the terms and conditions determined in the planning or in the agreement approving the modality.
2. The Compensation Board shall have an administrative nature, its own legal personality and full capacity for the fulfilment of its purposes.
3. A person representing the administration acting shall form part of the governing body of the Board, in any case.
4. The acting administration shall approve the bases of action and the statutes of the Compensation Board. To this end, the owners representing more than 60% of the total surface area of the unit of action shall submit to the acting administration the corresponding draft bases and statutes. The term to agree on the initial approval will be three months from the presentation of the complete documentation.
Once this period has elapsed without the pertinent agreement being reached, the corresponding Island Council shall act by subrogation when so requested by the interested parties, and the initial approval period shall be the same as that indicated by the owner administration, from the time the application is submitted to the Island Body.
Before the final approval, the other owners will be given a hearing, for a period of fifteen working days. The statutes and the bases will be understood to be approved if three months elapse from their initial approval, without either the acting administration or the corresponding island council having communicated an express resolution, in all cases passing the public information procedure.
5. Subject to what is established in the bases for action, the General Meeting shall formulate the corresponding reparcelación project. The definition of the rights contributed, the valuation of the resulting properties, the award rules, the approval, the effects of the approval agreement and the registration of the aforementioned project shall be in accordance with the provisions for reparcelación. However, by unanimous agreement of all the affected persons, different criteria may be adopted provided that they are not contrary to the applicable law or planning, nor harmful to the public interest or to third parties.
6. The resolutions of the Compensation Board may be appealed to the administration acting.
Article 84 Incorporation into the Compensation Board
1. The persons owning the unit of action who have not been promoters of the Compensation Board may join the Compensation Board with equal rights and obligations, if they have not done so at an earlier time, within one month from the notification of the resolution approving the statutes of the board. If they do not do so, their properties shall be expropriated in favour of the Compensation Board, which shall have the legal status of beneficiary.
2. Urban development companies that have to participate with the owners in the management of the unit of action may also join the Board.
Article 85 Transfer of land, works and installations
The transfer to the municipality concerned, in full ownership and free of charge, of all land of compulsory transfer and works or facilities to be executed by the owners will take place by ministry of law at the time of approval of the reparcelación through the corresponding project, under conditions to be determined by regulation.
Article 86 Powers of the Compensation Board over the properties
1. The incorporation of the owners to the Compensation Board shall not presuppose, unless the statutes provide otherwise, the transfer to it of the buildings affected by the results of joint management. In any case, the land will be directly affected to the fulfillment of the obligations inherent to the modality with annotation in the Registry of the Property in the form that is indicated reglamentariamente.
2. The compensation boards shall act as trustees with full power of attorney over the estates belonging to the owners who are members of those estates, with no limitations other than those established in the statutes.
Article 87 Liability of the Compensation Board
1. The Compensation Board shall be directly responsible, before the competent administration, for the complete development of the unit of action and, where appropriate, for the building of the resulting plots, when so established.
2. The amounts owed to the Compensation Board by its members shall be payable by way of urgency, at the request of the Board to the administration acting. Likewise, the Board may collect from its members, by delegation of the municipality, the urbanization quotas by means of pressure, and may formulate an appeal against the liquidations before the competent organ of the town hall.
3. Failure by the members of the Board to comply with the obligations and burdens imposed by this law shall entitle the administration acting to expropriate their respective rights in favour of the Compensation Board, which shall have the legal status of beneficiary.
4. The dissolution of a compensation board may only be agreed upon if:
a) It has fulfilled its obligations and has delivered the urbanization works, in accordance with the approved project.
b) The competent administration has received the land for compulsory and free transfer.
c) The appraisal has been paid, once it is final for all purposes, if the Board is the beneficiary of the expropriation.
Modality of cooperation
Article 88 Modality of cooperation
1. In the cooperation modality, the owners will contribute the land of obligatory transfer and the administration will execute the works of urbanization with charge to the same ones, in regime of direct management or of indirect management by means of the delegation to a private concessionaire of the public service to urbanize selected according to the state legislation of contracting of the public sector and of local regime, as it is specified in the article 79.3.b).ii of the present law. The resulting estates are awarded to the owners of the contributed estates in accordance with the criteria of article 80 of this law.
2. The application of the cooperation modality will require the reparcelación of the lands included in the unit of action, unless this is unnecessary to be sufficiently equitable distribution of benefits and burdens.
3. Administrative associations of owners may be set up on their initiative or by agreement of the town hall, with the aim of collaborating in the execution of urbanisation works.
4. In the case of urban renewal actions, the acting administration may replace the owners of the properties by assuming the power to build or rehabilitate them at their expense, by their own means or by selecting a private developer-builder under a substitute execution regime.
Article 89 Distribution of the burdens of the development
1. The loads of the urbanization will be distributed between the proprietors in proportion to the value of the estates that are adjudicated to them in the reparcelación.
2. The acting administration may require affected owners to pay amounts on account of urbanization costs. These amounts may not exceed the amount of the investments planned for the next two months from the request made to the owners. In the event of non-compliance, the administration may resort to the means of enforcement.
3. The administration may also, when the circumstances so advise, agree with the owners affected a delay in the payment of urbanization costs.
Development and execution of endowment actions
Article 90 Specificities applicable to the development of endowment actions
1. The endowment actions, as defined in Article 23.2.c), shall have as their object the building of the plots or the rehabilitation of the buildings that have an increase in use over that attributed by the previous planning, with prior or simultaneous assignment to the compulsory obtaining of the building permit of the endowment soils and of those corresponding to public use established in Article 29.3 of this Law, determined in proportion to the increases in use referred to above, as well as, and where appropriate, the carrying out of the urbanization works necessary for conversion to solar and its connection with the networks of infrastructures and services existing in its immediate surroundings.
2. The following objective criteria shall be respected for the identification on urban land of lucrative building plots and those linked to those intended to be subject to the system of endowment actions:
a) In the lucrative building plots will try that in case they already have some pre-existing building, the increase in edificability to be attributed in relation to the already materialized allows to guarantee the profitability of the action, justifying it in a report of economic viability that considers the costs of the eventual demolition of the pre-existing building to be able to proceed to its replacement by the new planned building.
b) In the plots of dotational use linked to the increases in use attributed to the building plots, an attempt will be made to find building vacancies or, if they have any pre-existing construction, the compensation derived from its demolition, rehabilitation or adaptation does not compromise the profitability of the endowment action, justifying it in a report of economic viability.
3. The scope of the endowment action may be continuous or discontinuous and shall be made up of a buildable or built plot, in the event that the satisfaction of the urban duty is carried out in the manner of application of the economic compensation in the terms established in article 91.3 of this law, or the constitution of a real estate complex in the terms established in article 29.5.a) of the present law, or by one or several building plots or built plots with attribution of increase of use and by another or several plots of public endowment use for the case of the application of the modality of land transfer, determined in the terms established in article 29.3.b) of the present law.
The identification of the plot or plots of endowment use that are linked to the building plot equipped with increased use to meet the urban duty arising from the system of the action of endowment in the modality of transfer of land, will be determined voluntarily between the owners of both plots, under the procedure established for voluntary and discontinuous reparcelación regulated in Article 78.4 of this law.
4. The building plots and buildings with an increase in use will be built or rehabilitated in the maximum periods set by the planning or by the order of execution concerned, once justified the favorable economic returns generated in the personal assets of interested parties derived from the result of a report of economic viability. These periods may not exceed 24 months from the final approval of the increase in this use in planning. In the event that the action of endowment comes from a specific modification of the plan, its execution must be simultaneous or immediate to the approval of the action of the endowment.
Article 91 Execution of endowment actions
1. The execution of the actions of endowment, when they are within the term and conditions established in Article 90.4 of this law, will be carried out through the granting of the mandatory license of works to the building plot that has an increase in use attributed, granting that will be simultaneous or subsequent to the effective realization of the assignments of land to the administration acting established in Article 29.3.b) of this law.
2. Failure to comply with the conditions established in Article 90.4 of this law to exercise the power to build, rehabilitate or improve buildings subject to an action of endowment, shall be resolved by the application of the regime of non-compliance with the duty to build and rehabilitate provided for in this law. In its case, it will entail the direct application of the procedure of forced substitution referred to the formulation, the processing and the approval of the programs of building or rehabilitating action, in the terms established in article 117 of the present law.
3. The transfer of land to deliver to the administration for public endowments and to materialize the percentage of urban development that corresponds to the duty of public participation in the capital gains that the action generates, determined according to the increase in use attributed to lucrative building plots subject to an action of endowment, in the event of the impossibility of materialisation in an exempt plot of land or in a real estate complex, and always exceptionally under the conditions permitted by basic state legislation, may be replaced by an economic compensation of equivalent value which must be paid into the public land patrimony for the purpose of obtaining the land it replaces or, as the case may be, the public financing of the action, if legally appropriate.
Article 92 Expropriation system
1. The expropriation system shall be applied by complete units of action and shall include all the property and rights included therein.
2. A list of owners and a description of the property or rights affected shall be attached to the delimitation of the units of action by the expropriation system, when it does not exist nor results from the planning instrument, in accordance with the provisions of the State legislation on forced expropriation.
3. Likewise, the expropriation system may also be applied with the purpose of increasing the public patrimony of land to satisfy social demands motivated by reasons of general interest.
Article 93 Constructions on the surface of the delimited area
No construction may be carried out on the area included in the area delimited for expropriation purposes, nor may existing constructions be modified, except in specific and exceptional cases, with the prior express authorisation of the expropriating body which, if it is not the town hall, will communicate this to the latter for the purpose of granting the appropriate licence.
Article 94 Procedure
The expropriant may choose between continuing the expropriation individually for each property or applying the procedure of joint appraisal in accordance with the provisions of Title VI of this law and the regulations established in development of this.
Article 95 Release of goods in the expropriation system
1. In the application of the expropriation system, the expropriating administration may release, exceptionally and by imposing appropriate conditions, certain privately owned or patrimonial assets of public administrations and other public entities.
2. The release from expropriation may be granted ex officio or at the request of a party when, for reasons of public interest related to the importance of the urbanization works and, as the case may be, of the construction to be carried out, or by virtue of other circumstances that make it advisable, the expropriating administration deems it appropriate to adopt this measure, and the latter is compatible with the public interests that legitimize the action.
3. Requests may be made during the public information period of the joint appraisal project, as well as at any time prior or subsequent to payment and taking possession.
4. If the expropriating administration deems the request for release to be justified, it shall indicate, by means of a proposed resolution, the property affected by the release, the conditions, the terms and the proportion in which these will be linked to urban management, and the obligations that the incumbent persons will assume as a consequence of this link. The requirements to guarantee their participation in the execution of the planning will also be established. The proposal will be submitted to public information for a minimum period of twenty days and to a hearing of the beneficiary person, where appropriate, as well as of the property, for the purposes of pronouncing on the acceptance of the conditions mentioned, also for a minimum period of twenty days.
5. If the property accepts the fixed conditions, the expropriating administration, in view of the allegations formulated, where appropriate, by the beneficiary person and other allegations that may have been derived from public information, shall issue the corresponding resolution, which shall be notified to the interested persons and published in the Official Gazette of the Balearic Islands. In the adoption of this resolution it will be taken into account that:
a) Its effectiveness will require the express acceptance of the conditions that it imposes on the property.
b) The resolution will specify the property or rights affected by the release, as well as the terms and proportion in which the owner will be linked to urban management and the guarantees required, as well as, in any case, the affectation of the property to the payment of urbanization charges in the terms established by this law.
c) If the expropriating administration was not the council, the release will require in any case their conformity.
6. The breach by the property of the urban duties set out in the resolution of release will determine the enforcement of the guarantees and the use of the means of enforcement or expropriation for breach of the social function of the property.
7. In accordance with state land legislation, shall not have the character of exceptional and may be discretionally agreed by the administration acting the release of expropriation in actions of building rehabilitation, urban regeneration and renovation, provided that the released owner provides sufficient guarantees in relation to compliance with the obligations to which it is entitled.
Article 96 Direct occupation
1. By means of direct occupation, the administration shall dispose of the land destined for systems and public endowments of compulsory transfer included in an area subject to reparcelación before the definitive approval of this and after recognition of the subjective use and of the right of the affected owners to participate in this reparcelación.
2. In order to process the direct occupation it will be necessary:
a) Justify its urban planning need, without the consent of the individual being required.
b) Identify the unit of action that has a surplus of use that is capable of compensating the subjective use that corresponds to the person owning the endowment land that is occupied directly and in advance.
c) Observe the principle of publicity.
d) Notify the affected persons individually.
e) To grant the certificate of occupation and certify its content, with the application of the determinations of the mortgage legislation on this matter.
3. The owners of the occupied lands shall have the right to be compensated for the damages caused by the anticipated occupation and, in addition, after four years of the granting of the act of direct occupation, if the corresponding reparcelación instrument has not been definitively approved, they may advise the competent administration of their intention to initiate the file to determine the appraisal, in accordance with article 142 of this law. In this case, the administration acting shall be subrogated to the position of the original owners in the subsequent reparcellation procedure, and the fixing of the appraisal shall take into account the cases in which non-compliance with duties occurs.
4. Direct occupation may be processed as from the publication of the definitive approval of the instrument specifying the scope of the reparcelación in which the owners will have to make effective their rights and obligations.
5. In the case of direct occupation, the holders of other property and rights that are incompatible with the occupation shall be entitled to the corresponding compensation for the temporary occupation, without prejudice to their subsequent participation in the reparcelación file, by means of the pertinent administrative recognition.
6. In cases of direct occupation, the right of rehousing shall apply under the conditions and with the requirements provided for in this law.
Urban development agreements
Article 97 Concept, principles, object and limits of conventions
1. Island councils and town councils, jointly or separately, may enter into agreements with public or private persons to collaborate in a more efficient and effective urban activity, always with the participation of the owners and all those who hold Sunday faculties on the land.
2. The negotiation, formalisation and fulfilment of the urban development agreements referred to in paragraph 1 above shall be governed by the principles of transparency and publicity.
3. Urban development agreements may have as their object the determinations and conditions relating to the organisation, management and execution of the planning in force at the time of the formalisation of the agreement.
4. The stipulations of urban planning agreements which contravene, infringe or defraud objectively, in any way, imperative legal or regulatory norms, including those of territorial or urban planning, shall be null and void, unless the object is precisely to modify them following the procedure and complying with the requirements that correspond according to the legislation in force. They may not establish additional or more burdensome obligations or benefits than those that proceed legally, to the detriment of the owners affected.
5. Urban development agreements shall be of a legal-administrative nature and questions relating to the performance, interpretation, effects and extinction of these shall be within the jurisdiction of the contentious-administrative order.
Article 98 Municipal planning and management agreements
1. Urban planning agreements are those that have as their object the approval or modification of current planning.
When these agreements modify any determination of the structural arrangement of the municipality must have the favorable report of the island council to ensure the viability of the proposal, prior to signing.
The agreements signed do not bind the power of planning whoever its owner. In the case of non-approval of the plan or of its modification according to the agreement, this will be understood to be automatically resolved without the right to compensation.
2. Urban management agreements are those that have as their object the terms and conditions of execution of the planning, without any alteration of that planning being derived from their fulfillment.
The agreements in which it is agreed, in an exceptional manner and only in the specific cases in which the present law foresees it, the fulfilment of the legal duty of cession of urban development corresponding to the town hall in exchange for the payment of a substitute amount in cash will include the corresponding expert valuation, in accordance with the regulations in force in the matter of urban development valuations, expressly validated by the competent municipal technical personnel.
Individuals who sign the agreement, with the agreement of all affected owners, and assume full responsibility for urbanization in an area of urban action, may define its implementation.
3. The agreements, prior to their approval, will be subject to a period of public information for a minimum period of one month, which will be announced in the Official Gazette of the Balearic Islands and on the corresponding official website or electronic access point. The announcement must include the full content of the agreement.
4. The approval of these agreements will be the responsibility of the town councils; the approval of the planning agreements will in any case be the responsibility of the Plenary.
Article 99 Publicity and contestation of agreements
1. The full text of the agreements, together with the approval agreement, shall be published in the same terms and requirements as are required for the publication of planning instruments, in accordance with local legislation or with this law.
2. In all municipalities there shall be a register of urban administrative agreements, in which the name of the agreement shall be noted, and a file of urban administrative agreements, in which a complete copy of the definitive text and, where appropriate, of the documentation making up the file, as well as that of the management instrument to which it refers, shall be kept.
3. The copy kept in the file referred to in paragraph 2 above shall attest, with all legal effects, to the content of the agreement.
4. All citizens shall have the right to consult the registers and archives referred to in this article, and to obtain certificates and copies of the annotations made and the documents kept therein.
5. The administrative acts of approval of the urban development agreements and their contents shall also be subject to the public action regime regulated by article 14 of this law.
Public land heritage
Article 100 Classes and constitution of public land patrimonies
1. The autonomous community, the insular councils and the municipalities will constitute and will exercise the ownership of the public patrimonies of land with the following purposes:
a) Create land reserves for public actions.
b) To facilitate the execution of planning instruments.
c) To obtain a public intervention in the land market of sufficient size to have an effective impact on price formation.
d) Guarantee a sufficient supply of land for the implementation of social housing or other public protection regimes.
e) To protect, conserve, maintain or improve the cultural heritage of the Balearic Islands.
f) To carry out soil preservation actions in rural situations, in favour of protected spaces and heritage assets, the environment or the landscape.
2. The assets and resources that, in accordance with the provisions of Article 103 of this Act, must legally integrate the public land assets will be subject to the regime provided for them by this title, regardless of the fact that the owner administration has not yet proceeded to the formal constitution of the corresponding assets.
Article 101 Nature and registration of public land assets
1. Each public land patrimony will integrate a separate patrimony with general character separated from the remaining patrimony of the titular administration.
2. The administrations owning public land assets shall keep a register of this, which shall be of a public nature, including, in the terms to be determined by regulation, the component assets and cash deposits, the disposals or assignments of assets and the final destination of the same.
Article 102 Management of public land assets
The management of public land shall include all the powers necessary to ensure compliance with the purposes set out in Article 100 of this Act. When in the same municipality there is land of public heritage of land belonging to different administrations for its management will be established appropriate channels of inter-administrative collaboration.
Article 103 Assets and resources constituting the public soil heritage
They will integrate the public patrimonies of land:
a) The patrimonial assets incorporated by decision of the corresponding administration.
b) Land and buildings obtained by virtue of transfers for urban use that involve the actions of urban transformation in accordance with the provisions of Articles 29 and 30 of this law, or acquired with the income from the replacement of these transfers by cash payments.
c) Land and buildings acquired by the administration for incorporation into the corresponding land patrimony and, in any case, those that are as a consequence of the exercise of the rights of pre-emption and retraction provided for in this law.
d) The income derived from the substitution of the transfers corresponding to the participation of the administration in the urban development for payments in cash, under the terms provided by law.
e) The resources derived from its management and the goods acquired with the application of these resources.
f) The income obtained by virtue of the compensatory service in rustic land and the fines imposed as a consequence of the urban infractions, without prejudice to deducting the expenses derived from the management of the services of urban discipline.
Article 104 Destination of the constituent goods of the public patrimonies of land
1. The land and buildings that make up the public land patrimonies will be allocated, according to their urban qualification:
a) To residential land, preferably to the construction of social housing or other public protection regimes. Justifiably, to uses of social interest in accordance with the provisions of urban planning instruments.
b) In the rest of the land, to uses of social interest in accordance with the provisions of the urban planning instruments.
2. The income, as well as the resources derived from the management of the public patrimonies of land, will be destined:
(a) preferably, to the acquisition of land for social housing or other public protection schemes.
b) To the conservation, improvement, extension, urbanization and, in general, urban management of the corresponding public land assets.
c) To the promotion of social housing or other public protection regimes.
d) To other uses of social interest.
For the purposes of this article, uses of social interest are understood to be those relating to the execution of actions whose purpose is the improvement, conservation, maintenance and rehabilitation of the existing city, preferably of degraded areas, as well as the implementation of endowments or improvements to natural spaces, the landscape or real estate of cultural heritage.
Article 105 Provision on the property of public land patrimonies
The goods of the public patrimonies of ground can be:
a) Allied by means of any of the procedures provided for in the legislation applicable to the owner administration, except that of direct adjudication, and mandatorily by means of a competition when they are destined for officially protected housing or other public protection regimes and for the uses provided for in section 1.b) of the previous article.
b) Granted free of charge or for a price that may be lower than their urban value when they are destined for subsidised housing or other public protection systems and for the uses provided for in paragraph 1.b) of the previous article, directly or by means of an agreement established for this purpose, to any of the other territorial public administrations, and to wholly public capital entities or companies.
c) Granted free of charge or at a price that may be lower than its urban value, for the promotion of subsidised housing or other public protection systems, to non-profit organisations, cooperatives or charitable or social organisations, by means of a public tender.
d) Allied by direct adjudication within the year following the resolution of the procedures referred to in letter a) or the call for tenders provided for in letter c) above, when both have been deserted, subject in any case to the specifications or bases by which they have been governed, but may not be sold for a price lower than their urban value.
Article 106 Surface right
1. Administrations and other public entities, as well as natural or legal persons, may constitute the right of superficies in goods owned by them or members of the corresponding public patrimony of land destined for any of the uses permitted by urban planning, whose right shall correspond to the person superficiaria.
2. The concession of the surface right for any administration and other public entities and its constitution by natural or legal persons shall enjoy the benefits derived from the legislation on publicly subsidised housing, provided that the requirements established are met.
3. With regard to its legal system, the provisions of state and regional legislation shall apply.
Preliminary and retraction rights
Article 107 Delimitation of areas
1. In order to guarantee compliance with the planning instrument programming, increase public land holdings, intervene in the real estate market and, in general, facilitate compliance with its objectives, municipalities may delimit areas in any kind of land in which onerous transfers of land and buildings will be subject to the exercise of the rights of first refusal and retraction by the administration acting, for a maximum period of ten years, unless when delimiting the area another smaller one has been fixed.
2. The delimitation of the areas referred to in the preceding paragraph may be carried out by urban planning or through the procedure of delimitation of units of action.
3. Likewise, the transfer of properties of certain characteristics with the objective of paragraph 1 and by the procedure of paragraph 2 of this article may be subject to the rights of pre-emption and retraction, provided that the affected properties are perfectly identified.
Article 108 Notification of transmission
1. The owners of property included in one of the areas referred to in article 107 of this law shall notify the administration of the decision to sell, with the expression of the projected price and payment method and the other essential conditions of the transmission, for the purposes of the possible exercise of the right of first refusal, within a period of sixty days from the date of notification.
For the purposes of the provisions of this Chapter, the transfer or transfers of more than 50% of the shares or holdings in commercial entities, the assets of which consist of more than 80% of the land or buildings subject to the pre-emption or pre-emption rights, shall be considered a transfer for consideration.
Article 109 Exercise of the right of withdrawal
1. The current administration may exercise the right of withdrawal when the notification provided for in the previous article has not been made, when any of the requirements demanded have been omitted, or when the effective price of the transfer has been lower or less onerous the remaining conditions of the transfer.
2. This right shall be exercised within a period of sixty calendar days from the day following the notification of the transfer effected, which the acquirer shall in any event notify to the acting administration, by means of the delivery of a copy of the deed or of the document in which it was executed. In the event that the notification does not take place, the previous term will be counted from the moment in which the municipal administration has knowledge of it.
Article 110 Expiry of notification
1. The effects of the notification of transmission to the administration acting for the exercise of the right of pre-emption shall expire six months after the transmission without the transmission being effected.
2. A transfer made after this period shall be deemed to have been made without such notification for the purposes of exercising the right of withdrawal.
Article 111 Payment of the price
1. The price may be paid in cash or by delivery of land of equivalent value, if the parties so agree.
2. Where the price is paid in different instalments, failure by the administration of any of these instalments shall entitle the creditor to request the resolution of the transfer made in favour of the creditor.
Article 112 Transmissions without prior notification
Transmissions may not be made on the properties included in the above-mentioned delimitations if it is not proven that the notifications provided for in the previous articles have been made.
To this end, the municipality shall send to the corresponding property registers a certified copy of the plans reflecting the delimitation and detailed list of the streets or sectors included in those areas and of the owners and the specific goods affected, by means of transfer, where appropriate, of a copy of the delimitation agreement, with an indication of the scope and extension of the preferential acquisition right.
Obligation to develop and to build and consequences of not exercising the right to build within the time limit
Article 113 Obligation to develop
1. All planning instruments that legitimise actions of urban transformation or others that require the execution of urbanisation works shall fix the deadlines for their start and completion.
2. The declaration, made by the town hall, that the promoting party or the Compensation Board has failed to comply with the obligation to develop, within the time limits established by the urban planning, will entail, after hearing the person or entity responsible, the suspension of the effects of the planning in execution, until these guarantee the total amount budgeted for the works pending execution, without prejudice to the fact that the administration may agree to change the system of action or may modify the urban planning, with the corresponding previous procedures.
Article 114 Obligation to build and rehabilitate
1. The urban planning will fix the terms to begin obligatorily the construction of the plots produced after the urban execution of the sectors and the units of action, and of the existing ones in the concrete areas that it determines. Likewise, by means of a specific execution order, the administration will fix the term to rehabilitate the buildings susceptible of it.
The obligation to build will also be enforceable, even if the site contains buildings paralyzed, dilapidated, demolished or necessary demolition by the fact of being an obstacle to the implementation of planning.
However, it will not be mandatory to set a deadline for building residential plots with a maximum capacity of up to four homes.
2. If the planning has not determined the period for building the plots, it shall be understood that this is four years, counting from the time the plot has acquired the condition of plot. Exceeded this term, hypothetical compensations will not be exigibles for reduction of the urban use that derives from alterations of the urban planning, nor for the revocation of the effectiveness of the licenses granted on the basis of the substituted planning.
3. The terms established in this article will not be altered even if in the course of these transfers of ownership are made, and will be extendable exceptionally if the council agrees motivated, for reasons of land policy or housing.
Article 115 Municipal Register of Unbuilt Plots and Buildings for Rehabilitation
1. Under the terms established by regulation by the respective island councils, local councils may create a municipal register of undeveloped plots and buildings for renovation, which shall be public.
2. The purpose of this register shall be to register the declarations of non-compliance with the obligation to build referring to specific plots of land or to rehabilitate the buildings identified in the corresponding order of execution and shall express, in respect of each property, the circumstances established in a regulatory manner or, in any case, by the same agreement creating the register. Entries in this register shall be cancelled by registration of the fulfilment of the obligation in question.
3. The non-existence of the municipal register referred to in the previous paragraphs shall not affect the validity and effectiveness of the resolutions declaring non-compliance or the obligation of the administration to communicate them to the Land Registry, in accordance with the provisions of state legislation.
Article 116 Consequences of registration in the Municipal Register of Building Lots and Buildings for Rehabilitation
1. Registration in the Municipal Register of Building Sites and Buildings for Rehabilitation or, failing that, the resolution declaring the non-compliance, will enable the initiation of the file of forced replacement of owners or expropriation, which will determine the valuation of the site through an individualized procedure or joint appraisal, with a reduction of 25%.
2. The forced replacement execution may be initiated ex officio or at the request of a party interested in the building or refurbishment process, it shall be awarded by means of a tender through the procedure established in the regulations, and it shall guarantee the principles of publicity, competition and non-discrimination.
In the case of application of expropriation, the municipality may expropriate the land to build it and apply its own resources in direct management, or through the selection of a private developer designated as the beneficiary of the expropriation, in indirect management.
3. Under the terms of state legislation, once the resolution declaring non-compliance with the duties of building and agreed the application of the system of expropriation or forced replacement, the acting administration will transfer to the Land Registry the certification of the corresponding act for proof by marginal note of the last registration of domain.
4. When a public tender reaches a price higher than the valuation of the site entered in the Municipal Register of Building Plots and Buildings for Rehabilitation, the difference will correspond to the municipality, which will integrate it into the municipal public land.
Article 117 Procedure for the development of forced substitute execution
Replacement performance shall follow the following procedure:
Declaration of non-compliance:
a) Once the period established for building a plot of land has elapsed or as indicated in the execution order to rehabilitate a building, the administration, ex officio or at the request of a party, shall initiate the declaration of non-compliance with this duty.
b) Interested private persons shall formulate their request by submitting to the Town Hall a technical report justifying the expiry of the term, with a provisional guarantee quantified at 3% of the cadastral value of the property.
c) The municipality, after issuing technical reports that formally establish the expiry of the periods, will carry out the precautionary suspension of the granting of licences and the effects of those granted, if any, in the property object of the action -this precautionary suspension will be recorded in the Property Registry by means of a marginal note- and will request from the Property Registry a certification of ownership and charges of the property. This suspension shall be subject to public information for a period of one month announced in the Official Gazette of the Balearic Islands and in a newspaper widely distributed on the island, and shall expressly notify the owners to argue what they deem appropriate to their right.
d) Once the period of information has elapsed, the council, after issuing the mandatory reports, shall summon the interested individuals and the owners so that, in view of the actions taken, they may express their conclusions with regard to the breach of duty.
e) The declaration of non-compliance shall correspond when this occurs for reasons attributable to the owners not derived from administrative decisions that have prevented compliance. The declaration will entail registration in the Municipal Register of Building Sites and Buildings for Rehabilitation, the authorization for the call for tender of building or rehabilitation action programs, the reduction of the appraisal in accordance with the provisions of Article 116.1 of this law and communication to the Land Registry for the practice of marginal note of the registration of the property.
f) However, prior to the resolution of non-compliance and through the signing of an agreement between the municipality and the persons owning the property, it may be agreed to call for tender for programmes to replace the owner in exclusive mode of execution in the mode of distribution in horizontal property, without express declaration of non-compliance and without application of the system of forced replacement execution.
2. Announcement of a tender for building or rehabilitation action programmes in replacement execution:
a) The council, within a maximum period of two months from the resolution corresponding to the fulfilment of the duty, shall call, ex officio or at the request of a party, a tender for the presentation of building or rehabilitation action programmes, prior approval of a set of conditions governing the awarding of the programme, which shall provide, in a weighted manner, for the following factors: the higher or lower execution costs, the modalities for placing the built products on the market (maximum sale prices, rentals, surface rights, percentages of protected housing in residential actions), shorter execution periods, better quality of urban design and integration, etc.
b) The programmes shall contain the following documents:
i. Technical alternative, consisting of a preliminary building or refurbishment project and, where appropriate, works to complete the development, together with a quality report of the works that allows the execution costs to be estimated and a provisional guarantee of 3% of the cadastral value of the property, in the event that it has not been presented in the procedure established for the declaration of non-compliance with the duty of execution.
ii. Proposal of the agreement to be signed between the town hall and the successful bidder in which commitments, deadlines, guarantees and penalties will be stated to regulate its execution.
iii. Legal-economic proposal that foresees the total cost of the building or restoration work and that separates the cost of contracting from general and financial expenses; the benefit of the developer, which will be expressed as a percentage of the total cost, and will be justified on the basis of the economic viability report, as well as the proposed purchase price of the property as a private beneficiary in the form of compulsory expropriation, or proposal to award parts of the building equivalent in value to the total costs of execution in the form of contribution in horizontal property.
iv. Report on economic viability under the terms established in this law and in state legislation.
v. Sustainability report, in the event that the programme involves the transfer of land to the municipality.
Article 118 Processing and awarding of building or rehabilitation action programmes.
1. The competition established in article 117.2.a) of the present law will consist of two phases:
a) A first, with a period of two months, for the presentation of technical alternatives in open escrow, for all individuals who so wish. Once this period has elapsed, within a maximum period of another two months, after issuing the mandatory technical reports and requesting a non-binding academic report from the professional association concerned, the municipality will select a technical alternative justified by compliance with the specifications.
(b) A second phase, lasting two months, for the submission, in closed escrow, of proposals for agreements, legal and economic proposals and reports on economic viability and, where appropriate, economic sustainability of the selected alternative.
Once this period has elapsed, the tenders will be opened within the next ten days, and will remain on public display for twenty days in order to collect any possible allegations on this subject.
At the end of this period, within a maximum of two months, the Town Hall, after issuing the mandatory technical reports, will award the building or rehabilitation action programme to the proposal that best meets the requirements established in the specifications.
2. Consequences and effects of approval:
a) The approval of the programme will be formalised through the signing of the regulatory agreement between the municipality and the successful bidder, with prior satisfaction of the definitive guarantee which will be 5% of the total execution costs established in the award, and the provisional guarantees will be returned to the non successful bidders.
b) The approval of the program in the modality of equidistribution in the system of horizontal property will produce the adjudication of the property in proindiviso in the resulting proportion to the person awarded together with the owners, and its occupation with fiduciary character by that one, to the effects of the accomplishment of the works of edificatoria execution or rehabilitadora.
c) In the expropriation modality, the approval of the program shall entail the transfer of the property to the successful bidder with the previous debt, if any, of the reduction of the price established in article 116.1 of the present law.
d) The approval of the programme shall be published in the Official Gazette of the Balearic Islands and shall be communicated to the Island Council so that it may be aware of it and to the Land Registry for the registration of the new properties and their owners.
Article 119 Obligations of purchasers
1. Persons acquiring title to the building plots or buildings to be rehabilitated, or those awarded the compulsory replacement execution, shall be obliged to start or resume construction within the period established in the execution procedure and, at the latest, within one year from the date on which they take possession of the property or obtain or update, as the case may be, the relevant municipal licence. If the purchasers fail to comply with the obligation to build or rehabilitate, after the corresponding declaration, the property will be returned to the situation of expropriation or forced replacement.
2. Owners of property in the situation of expropriation or compulsory replacement execution, as long as the former subsists and the procedures for expropriation or public bidding for the replacement execution have not been initiated, may directly dispose of the property, if the purchasers have previously undertaken before the Town Hall the commitment to build in the terms set out in the previous section.
In this case, the situation of expropriation or forced substitute execution shall be suspended, but its registration in the Municipal Register of Building Lots and Buildings for Rehabilitation shall not be cancelled.
3. The persons awarded the substitute execution, the beneficiaries of the expropriation and the owners of the property included in the Municipal Register of Unbuilt Plots of Land and Buildings for Rehabilitation, who intend to fulfil this obligation directly or through a third party purchaser, shall be obliged to guarantee compliance with the obligation to build or rehabilitate.
Works and constructions
The works of urbanization
Article 120 Duty of conservation of urbanization works
1. The conservation of urban development works, including the maintenance of endowments and the corresponding public services, shall be the responsibility of the municipality or, temporarily, of the owners grouped in an urban conservation entity in the cases provided for in this article.
2. Except as provided in the following section, the municipality shall be responsible, on the basis of the result of the mandatory economic sustainability report in the terms established in Article 47.2 of this Act, for the conservation of urban development works carried out by private persons or as a result of an action taken through one of the systems of action. The assumption by the municipality of the conservation will only occur at the time of receipt by the same of all the corresponding works.
3. The conservation of the urbanization works will correspond to the persons who own the plots generated in a new urbanization action far from the existing population nuclei, previous constitution of the guarantee foreseen by regulation by the respective insular councils, and legally grouped in urban conservation entity, when it has been assumed voluntarily by any procedure or when the planning so determines.
This obligation will be maintained until the scope comes to have consolidated the building at 50%, and then correspond to its conservation to the municipality, at which time the guarantees will be returned constituted.
4. The urban entities of conservation are entities of public right, of obligatory ascription and personality and own legal capacity for the fulfillment of its ends, from its inscription in the Registry of Collaborating Urban Entities. They will be subject to the tutelage of the municipality and may request and obtain from it the application of the way of constraint for the requirement of the conservation quotas that correspond to satisfy the owners.
5. The participation of the owners in the costs of conservation will be determined in accordance with that which has corresponded to them in the corresponding system of action, unless otherwise provided in the statutes of the urban conservation entity.
Article 121 Reception of development works
1. The reception of urbanisation works shall always correspond to the municipality, ex officio or at the request of the person responsible for the execution, conservation and delivery of the works, and shall be carried out in accordance with the provisions of this article. However, when the municipality carries out the urbanisation works, the reception shall be carried out in accordance with the provisions of public sector contract law.
2. The reception of the works will require the presence of the person in charge of the mayor’s office or the person to whom it delegates, assisted by municipal facultative personnel or designated by the town council, of the facultative in charge of the direction of the works and of the person or entity responsible for the action in accordance with the system of action applied, assisted by facultative personnel if it considers it opportune.
If the works are in good condition and in accordance with the planned projects and prescriptions, they will be received by means of the corresponding act, starting then, without prejudice to the assumption of conservation by the municipality or by the responsible entity, the guarantee period, which will be two years. During this period, the person or entity that has delivered the works to the municipality shall be liable for all defects and vices of construction that are appreciated, which must be repaired or corrected. In the event of non-compliance with this obligation, the municipality may execute the guarantee provided to insure the development works, which may only be cancelled and returned at the end of the guarantee year.
All this without prejudice to the application of the system on hidden defects, in accordance with the legislation on contracts of public administrations.
3. If deficiencies are found, the applicant shall be notified, indicating the time limit for rectification. Once they have been remedied by the promoters or, subsidiarily and at their own expense, by the town council, they shall be received. The municipality, at this stage, will not be able to point out other different deficiencies, unless they occur.
4. The act of reception will take place in the four months following the presentation of the application together with the certificate issued by the technical management of the works and the documentation required by law, unless the municipality agrees, in the first two months of this period, to extend the period by two months. The extension agreement will be motivated by the number of pending applications or by the entity or complexity of the works to be received.
Once the maximum period for the reception of the works has elapsed without this having taken place, it shall be understood that the Ministry of Law has produced the works, and the applicant shall be relieved of his duty of conservation and from this moment the calculation of the guarantee year referred to in paragraph 2 above shall begin.
5. The respective island councils shall establish the procedure for reception by regulation, which shall arrange for the necessary documentation to be submitted, including the reception and commissioning agreements of the supplying companies. Receptions shall be documented by means of minutes, the administrative certification of which shall be sent to the Land Registry for the purposes of the applicable legislation. In the same way, by regulation, the procedure to which the reception of the urbanization will be subject will be established, in case the person or the promoter entity is in an ignored domicile.
Building works and other works and actions in real estate in general
Article 122 Legal duties of use, conservation and rehabilitation
1. Persons who own land and other real estate are obliged to use it for the purposes envisaged by urban planning. Owners of land, buildings, installations and other real estate are obliged to comply with the duties of use, conservation and rehabilitation established by this law, by the applicable state and sectorial sectorial land legislation and by municipal ordinances.
They are included in these duties:
a) The maintenance or replacement of security conditions, universal accessibility, salubrity and public ornament of real estate.
b) The conservation and rehabilitation of the objective habitability conditions of the dwellings or of the functional conditions of the other types of constructions, in accordance with their destination.
c) The duties of conservation, maintenance, restoration and rehabilitation determined by the sectorial norms of historical heritage or the norms of urban planning, in particular the special plans and the catalogue of elements and protected spaces.
d) Compliance with the rules on urban rehabilitation established by municipal planning for specific areas.
In particular, when it comes to buildings, the legal duty of conservation, with the limit established in article 126.2.b) of this law, will include, in addition, the carrying out of the works and the necessary works to satisfy with general character the basic requirements of the building established in article 3.1 of the Law 38/1999, of November 5, of ordination of the building, and to adapt them and to update their facilities to the legal norms that are explicitly exigible in each moment.
2. The owners or the administration shall bear the cost of the duties referred to in paragraph 1 above, in accordance with the applicable legislation in each case and taking into account the excess over the limit of the duties of the owners when it comes to obtaining improvements of general or aesthetic interest not provided for in the planning.
Article 123 Execution orders
1. Municipalities shall, either ex officio or at the request of any interested person, order the execution of the works necessary to preserve the conditions referred to in Article 124(1), depending, if necessary, on the outcome of the evaluation reports provided for in Article 125 of this Law.
The orders of execution shall conform to the rules of local government and common administrative procedure, always observing the principle of administrative proportionality, in accordance with the following requirements:
a) They shall be dictated with the prior hearing of the interested person and with the report of the technical services and, if applicable, of the legal services of the entity that promotes them.
b) They shall be formalised in writing, and shall be reasoned with explicit reference to the rule or rules justifying them. Likewise, they shall indicate the period for the presentation of the documentation necessary for compliance with the order, which may not exceed six months, and shall detail the works and actions to be carried out and the period for their compliance, which may not exceed one year from the start of the works.
(c) A prior planning permission shall not be required for the execution of works or actions constituting the subject matter of an execution order, unless, in accordance with the applicable regulations, they require the preparation of a technical project. In this case, the execution order shall indicate the deadline for the submission of this project and the rest of the required documentation.
Nevertheless, the actions that for reasons of urgency or necessity do not admit delay will be executed immediately and under the corresponding technical direction, in the conditions and with the characteristics that are determined in the same order.
2. Unjustified non-compliance with the execution orders referred to in paragraph 1 above entitles the administration to adopt any of the following measures:
a) The subsidiary execution by the obligated person or the granting of a new term to carry out the ordered actions. In the event that the administration chooses to execute the execution order subsidiarily, the obligated person shall also be responsible for the cost of the technical project that, if applicable, has to be drawn up.
b) The imposition of coercive fines, in the same terms as provided for in article 187 of this law, until the conservation obligation is fulfilled.
c) The call for tenders for the award, by means of the forced substitution of the owner, of a programme of rehabilitative action in the terms established in article 118 of this law.
3. Island councils and town councils may also order, for reasons of aesthetic interest and conservation of historical, artistic and architectural heritage, the execution of conservation works, reform of facades or spaces visible from the public highway, without prejudice to the specific measures provided for in the legislation on the historical heritage of the Balearic Islands.
Article 124 Rehabilitation of buildings for improvement and adaptation to the environment
1. In order to satisfy the improvement of the energy efficiency of buildings, the implementation of facilities to satisfy the right to universal accessibility, as well as to make formal and material adaptation to urban and rural environments, the administration may issue execution orders with these objectives, formulated ex officio or at the request of a particular person interested in its resolution.
2. These actions of improvement and adaptation to the environment may be dictated individually and applicable to specific buildings, or integrated into building actions, or any other action of urban transformation, as an additional complement.
3. The order of execution shall be based on specific state, regional or local regulations that expressly establish the obligation of the action to improve or adapt to the environment in question in each case. In the absence of this regulation, the execution order may only be issued when it attaches a report of economic viability justifying the profitability of the actions, in the short and medium term, for the owners affected by them.
Article 125 Evaluation of buildings and inspection of constructions and buildings
1. Owners, natural and legal persons, or communities of owners of buildings that are more than 30 years old, in the case of the assessment of the state of conservation or 50 years, in all other cases, shall submit, with a periodicity of ten years, the report on the assessment of buildings.
Those constructions of little constructive entity and technical simplicity, in accordance with the ones defined in the state legislation, are exempted from their consideration as buildings.
In the report of evaluation of buildings the following will be accredited:
a) The assessment of the state of conservation of the building made by competent facultative technical personnel according to the established in the state legislation.
For these purposes, the person who holds any of the academic and professional qualifications that qualify for the drafting of projects or works management and works execution management according to the use of the building object of evaluation, according to what is established in the state legislation, will be considered a competent facultative technician.
b) The evaluation of the basic conditions of universal accessibility and non-discrimination of persons with disabilities for the access and use of the building, in accordance with the regulations in force, to establish whether the building is susceptible or not to make reasonable adjustments to satisfy them.
c) Certification of the energy efficiency of the building, with the content and by means of the procedure established by the regulations in force.
2. When, in accordance with the regulations in force, there is already a technical inspection report that makes it possible to evaluate some of the points mentioned in paragraph 1, it may be complemented with the evaluation referred to in point (b) and the certification referred to in point (c) above, and it will have the same effects as the report on the evaluation of buildings provided for in the State land legislation.
3. The reports issued as a result of the evaluations and inspections shall identify the real estate, with the expression of its cadastral reference, and shall record its result with a description of the defects and deficiencies found, their possible causes and recommended measures, as well as the degree of effectiveness of the measures adopted in relation to the recommendations contained in technical reports of previous inspections.
4. Both the assessment report and the technical report provided for in this article may give rise to requirements for rectification of deficiencies observed. When the reports contain all the elements required by the norm that foresees them, they will have the effects derived from the same, both with respect to the possible demand for the correction of the deficiencies observed, and with respect to the possible execution of these in substitution and at the expense of the obligated persons, independently of the application of the disciplinary and sanctioning measures that proceed, in accordance with the regulations in force.
The constructions and buildings or parts of these that are in situation of out of management, according to what is indicated in the article 129 of the present law, that require works derived from the report of evaluation of buildings, these works will not be able to be executed while the situation of out of management persists, and thus it will have to be stated in the notifications of the city council to the interested one.
5. The reports made on behalf of the community or the grouping of communities of property owners that refer to the entirety of a building or real estate complex will extend its effectiveness to each and every one of the existing premises and housing.
6. The owners of real estate obliged to carry out the evaluation report regulated by this article shall present a copy thereof to the Town Hall so that, when the report is favourable, it may forward it to the competent Department for Housing, so that the information it contains may be incorporated into the Register of Building Evaluation Reports.
The same shall apply in relation to the report that accredits the execution of the corresponding works that have been derived from the need to correct the deficiencies observed in the building, when this report is definitively favourable.
7. In the case of buildings belonging to the public administrations listed in article 2 of Law 39/2015, of 1 October, on the common administrative procedure of public administrations, the evaluation reports may be signed, where appropriate, by those responsible for the corresponding technical services which, due to their professional training, may assume the same functions referred to in the second paragraph of section 1.a) above.
Article 126 Declaration of ruinous condition
1. A declaration of ruinous condition shall be made by the municipality, ex officio or at the request of any interested person, if a property, or part thereof, in accordance with paragraph 3 below, is in ruinous condition, after hearing the owners and residents, unless a situation of imminent danger prevents it.
2. A building or part of it shall be declared in ruins in accordance with paragraph 3 below in any of the following cases:
a) In the technical case, when the damage entails the need for an authentic reconstruction of the building because the damage cannot be technically repaired by normal means.
The case in which the property presents a generalized exhaustion of the structural elements or of some of its fundamental structural elements shall be considered included in the technical case.
b) In the economic case, when the cost of the repair work necessary to comply with the minimum safety and health conditions exceeds the legal duty of conservation, understood as that which exceeds, in the case of dwellings or other similar for other uses, 50% of the cost of a new plant construction with similar characteristics to the existing one, with respect to size and use.
The economic assumption shall be accredited by means of an assessment of the works that must be carried out in order to comply with the minimum habitability conditions applicable to existing buildings, or the functional conditions of other types of constructions, as well as an assessment of the cost of constructing a new floor of a building of equal dimensions and uses, and with qualities analogous to the existing building. Under no circumstances may these valuations take into consideration the value of the land. The valuation of the works to be carried out will be contained in a budget by items, which will include plans of the building specifying the works necessary to maintain the construction, or the part of this construction that is affected, in the appropriate structural conditions to grant a license of rehabilitation of the building for its structural adequacy, so that its stability and mechanical resistance are guaranteed.
c) In the case of urban planning, when it is necessary to carry out essential works to ensure the stability of the building and the safety of people, not authorized under the urban planning ordinance in force.
In any case, it will be considered that there is urban assumption when the property is in the situation of out of development provided for in Article 129.2.a) of this law, and the works necessary to maintain it in conditions of stability and safety of people and goods exceed those admitted for constructions and buildings in that situation of out of development.
3. The partial state of ruin of a building may only be declared in the case of complex constructions made up of functionally and structurally autonomous and separable bodies which do not constitute a material unit from the point of view of construction and architecture.
4. The declaration of ruinous state will entail the obligation of the owners, within a period to be determined by the competent body, which will be a maximum of one year, to carry out the actions set by the administration. In the event of non-compliance with the time limit, the subsidiary execution shall be carried out by the interested party.
5. When the declaration of ruinous state affects a catalogued or declared property of cultural interest or is the object of a cataloguing or declaration procedure, it shall be subject to the provisions of Law 12/1998, of 21 December, on the historical heritage of the Balearic Islands.
Article 127 Imminent physical ruin
1. When it is considered that there is urgency and danger due to the delay in processing the file of declaration of ruinous state of a building, the competent municipal body shall provide the necessary protective measures to be adopted, including the shoring of the construction or building and its eviction.
2. When the existence of danger for persons or property is apparent from the document in which the initiation of the file is requested for the declaration of ruinous state, or from the complaint presented by any private person, the competent municipal body shall, as a matter of urgency, arrange an inspection visit of the municipal technical services as well as the adoption of the appropriate protective measures, and shall adopt the appropriate resolution within a maximum period of 72 hours from the receipt of the technical report which concludes that there is a situation of imminent ruin, without it being necessary in this case to hear the interested persons referred to in the previous article, without it being necessary in this case to hear the interested persons referred to in the previous article.
3. Whenever urgency permits, urgent execution orders shall be issued. If the situation were to recommend it, the municipality would adopt the measures directly and pass on their cost to the persons owning them.
4. The municipality shall be liable for damages resulting from the measures referred to in paragraph 1 above, without this implying an exemption from the liability of the person owning the property. The compensation paid by the municipality will be passed on to the owner up to the limit of the normal duty of conservation.
5. The adoption of the measures provided for in this Article shall not presuppose or imply the declaration of ruin.
Article 128 Provisional uses and works
1. Exceptionally, without prejudice to the provisions for each class and category of land, provisional uses, works or installations may be admitted which are not residential or industrial or which are expressly prohibited by urban planning, nor can they hinder their execution, and provided that their necessity and their non-permanent nature are justified, given their technical characteristics or the temporality of their system of ownership or exploitation.
2. The owner shall undertake to suspend the use or demolition of the works and installations when the town council, stating its reasons, so requests, expressly waiving to be compensated. The municipal licence shall state the provisional nature of the same and, where appropriate, the period indicated for its expiry, which shall be registered in the Land Registry, in accordance with the provisions of the mortgage legislation.
3. In order to ensure compliance with this limitation and guarantee the replacement of the land to its previous or original state, a deposit or guarantee will be required in the amount that is established by regulation.
Article 129 Inadequate and unordered buildings and constructions
1. Constructions and buildings in a situation of inadequacy shall be considered to be those with the following characteristics:
a) They have been legally implemented in accordance with a repealed or replaced urban planning.
b) In the urban planning in force it is not foreseen that they have to be subject to expropriation, compulsory and free transfer or demolition.
c) Do not conform to the determinations of the current planning.
The new planning will establish the planning rules and authorized actions applicable to the elements that remain in this situation. In any case, as a minimum, works of hygiene, security, health, reform and consolidation, rehabilitation, modernization or improvement of the aesthetic conditions and functionality, as well as those necessary for compliance with the rules of fire prevention, accessibility, technical code of the building and infrastructure facilities proper to the building.
The pre-existing uses legally implemented in a new urban planning may be maintained provided they are adapted to the limits of nuisance, harmfulness, unhealthiness and danger established for each area by the new urban regulations and the applicable sectoral legislation. The planning may provide and regulate the authorization of uses permitted in the applicable planning when the license was granted for works in existing and executed premises.
2. The following shall be considered constructions, buildings, installations and uses in situation of out of order:
a) Buildings that according to the current planning are subject to expropriation, compulsory and free transfer or demolition.
In the buildings or facilities that are in a situation of out of order, by virtue of this letter a), consolidation, volume increase or modernization works may not be authorized. However, repairs that require public health, safety and hygiene of persons residing in them or occupying the aforementioned buildings shall be authorized, exceptionally and in a reasoned manner, with express waiver of their possible increase in the expropriation value.
b) Buildings or constructions executed without a license or with an annulled license, even though the adoption of measures to re-establish urban legality that involve demolition is no longer applicable in each case.
In the buildings or facilities that are in a situation of out of order, by virtue of this letter b), no type of work may be carried out. In addition, in the event that these buildings have been built after 1 March 1987, the contracting of services for the supply of electricity, gas, water, sanitation, telephone, telecommunications or similar services cannot be obtained either. This regime will be applicable as long as the legalization of the constructions or buildings is not obtained in accordance with the legislation and planning in force.
c) Buildings or constructions implanted legally in which works have been carried out, of extension or reform, or change of use without having a licence or with a licence that has been annulled.
In the buildings or facilities that are in a situation of out of order, by virtue of this letter c), and as long as they do not affect the part of the building or construction carried out illegally, any work of health, safety, hygiene, repair, consolidation and also reform will be allowed.
In addition, the works necessary to comply with fire prevention and accessibility regulations and the technical building code may be authorised.
However, as long as the legalization of the constructions or buildings is not obtained, no type of work may be carried out on the illegal part.
3. In the buildings and constructions in regime of horizontal property, the limitations established in the previous sections will be applied only to the flats, premises and other constituent elements of estates or independent registry units that are in the situation of inadequacy or out of order and therefore not to the totality of the building.
The actions of interior reform and urban regeneration
Article 130 Content of interior reform and urban regeneration measures
Interior reform and urban regeneration actions, in accordance with what is foreseen in the corresponding special interior reform plan, include two or more of the following situations:
a) Building actions constituted by plots of land or plots to which the special plan maintains the urban development attributed by the previous planning, subject or not to rehabilitation actions, in the terms established in Article 23.1 of this law.
b) Individual plots to which the plan attributes an increase in urban development attributed by the previous planning, developable in a system of endowment actions.
c) Units of action that can be developed under a system of systematic reparcelling.
Article 131 Development of interior refurbishment and urban regeneration actions
1. The development of these complex urban transformation actions of interior reform and urban regeneration may be established in the general plan as a determination of a structural nature, as established in article 37.a).i of this law, or may be delimited or redefined subsequently by means of the procedure established for the delimitation of units of action regulated in article 73.2 of this law.
2. In the actions of interior reform and urban regeneration will be guaranteed, as a minimum, the net urban development, in the terms established in Article 24.4 of this law, attributed by the previous planning to each of the plots integrated in its spatial area without the determination of an average urban development attributable equally to each of the plots in it integrated.
3. Consequently, the land included in these actions of interior reform and urban regeneration will be developed by applying the execution regimes that correspond to them according to their specific legal-dominical situation, through the application of the techniques of the building or rehabilitation action programs established in articles 118 and 119 of this law, of the actions of endowment of articles 90 and 91 of this law, or of what is regulated for the units of systematic action in application of a system of action of those established in article 75 of this law and, all of it, submitted to the principles and objectives that the special plan of interior reform establishes with the purpose of the interior reform and urban regeneration of these spatial areas of the urban land.
4. The costs derived from the urbanization works of the actions of interior reform and urban regeneration, without prejudice of the applicable public aids, will be able to be financed with charge to the additional increases of use that could be attributed in relation to those established by the previous planning.
In the event of the legal impossibility of attributing increases in use for this purpose or if its content does not meet all the costs, its financing will be made through the application of part of the public use that corresponds to the administration as public participation in the capital gains generated by the increases in use attributed to the land subject to the actions of interior reform and urban regeneration, or may be supplemented by the approval of special contributions, distributed among the owners and owners of property especially benefited by the action.
5. The approval by the planning of the delimitation of these areas of interior reform and urban regeneration will exempt from compliance with the deadlines established for building or rehabilitation, and will proceed to immediate execution without the adoption of possible punitive measures for breach of the urban duty to build or rehabilitate.
Assumptions and procedures
Article 132 Expropriation cases
1. Forced expropriation by reason of town planning shall proceed in any of the following cases:
a) The determination of this system by the corresponding unit of action.
b) The destination of the land, due to its urban classification, to endowments and, in general, to the public domain of public use or service, provided that they have to be acquired forcibly by the administration acting because they are not subject to the legal duty of compulsory and free transfer or because there is an urgent need to anticipate their acquisition. For the purposes of expropriation, the imposition of easements or temporary occupation, as the case may be, affected adjoining land shall be deemed to be included to the extent that it is necessary to implement the endowments, equipment or services provided for in the planning instrument or that are specially benefited by these works or services and are delimited for this purpose.
c) Acquisition of property for incorporation into public land assets or for constitution and enlargement, in accordance with this law.
d) The performance of acts of parceling or reparcelación, use of land or building legally constituting a serious or very serious urban infraction.
e) Non-compliance with the social function of the property, in the following cases:
i. Failure to comply with the deadlines set for the formulation or processing of the planning instrument or for the total execution of this or any of the phases into which it has been divided.
ii. Course of the term provided for in the planning instrument for the commencement or completion of social housing or other public protection regimes that have been reserved in the corresponding area or sector.
iii. Inobservance of the legally required duties of conservation and rehabilitation of real estate.
f) The pre-existing building, or part of it, is in the legal situation of out of planning and it is expressly foreseen in the planning instrument its adaptation to the urban planning because it is manifestly incompatible and inadequate.
g) The inclusion of land, in respect of which the duty to build has been breached, in a situation of execution by substitution.
h) The approval of projects of ordinary public works, with respect to the lands that are necessary for their execution.
i) Obtaining land destined by the planning instrument for the construction of subsidized housing or other public protection regimes, as well as for uses declared to be of social interest.
j) Others provided for by the applicable general legislation.
2. The delimitation of the unit of action or of the zones or areas in the cases provided for in letters b), d) and e) of section 1 above, as well as the list of entitled persons and the specific and individualised description of the property and rights subject to expropriation in the rest of the cases listed in the same section 1, shall determine that the need for occupation must be declared and that the corresponding expropriation proceedings must be initiated.
3. The approval of an urban plan or the declaration of the existence of any of the cases of paragraph 1 above shall determine the declaration of public utility.
4. Legal occupants of property affected by an urban expropriation who have their habitual residence shall have the right of rehousing or return, under the terms established by the applicable legislation.
Article 133 Expropriation of isolated actions
1. Forced expropriation may be applied individually for the direct execution of those isolated actions established in article 23.3 of the present law, for general systems or any of their elements, as well as to obtain the land corresponding to isolated actions of endowment destination located on urban land and intended for local systems not subject to the system of endowment actions.
2. The compulsory expropriation for the execution of the isolated actions referred to in the previous number of this article shall require the formulation of the list of owners and the description of assets and rights referred to in Article 92.2 of this law, which shall be approved by the expropriating body, after opening a period of public information for a period of twenty days.
Article 134 Procedures to be followed for compulsory expropriation
In all expropriations derived from this law, including those carried out in the context of the systems of action, the administration acting may choose to apply the procedure of joint appraisal regulated in the following articles, or to carry out the expropriation on an individual basis, in accordance with the procedure of the Law of 16 December 1954 on forced expropriation.
Article 135 Processing of the joint appraisal procedure
1. The expropriation file, in the cases of the joint appraisal procedure, shall contain the following documents:
a) The determination of the territorial scope, with the documents that identify it in terms of location, surface and limits.
b) The fixing of prices, in accordance with the general legislation on valuations.
c) The individualized appraisal sheets for each property, which will contain not only the value of the land, but also that corresponding to the buildings, works, installations and plantations.
d) The appraisal sheets corresponding to other compensations.
2. The expropriation file shall be exposed to the public for a period of one month, so that the persons who may be interested may make such observations and claims as they deem appropriate, in particular with regard to the ownership or valuation of their rights. Errors not denounced or justified within the period indicated shall not give rise to nullity or reinstatement of actions, although the persons concerned retain the right to be compensated in the corresponding manner.
3. Public information shall be provided by inserting advertisements in the Official Gazette of the Balearic Islands.
4. Likewise, the resolution or agreement of initial approval of the project and the corresponding appraisals shall be notified individually to the persons who appear as owners of goods or rights in the file, by means of the literal transfer of the corresponding appraisal sheet and of the proposal to establish the appraisal criteria so that, within a period of one month, counted from the date of notification, they may make observations and claims concerning the ownership or appraisal of their respective rights.
5. Once the procedures set out in the previous sections have been carried out, in the event that the expropriating administration is a municipality with a population of less than 25,000 inhabitants, a complete copy of the completed and duly completed file will be sent to the corresponding Island Council, so that within a maximum period of three months it issues a non-binding report prior to final approval, which will evaluate the sufficiency of the documentation, the correctness of the procedural procedures and the suitability of the values proposed in the project.
6. The final approval of the expropriation project will be the responsibility of the expropriating administration.
7. The competent body of the expropriating administration shall individually notify the final resolution of the expropriation project to the owners of the affected property and rights, so that they may express in writing their disagreement with the valuation established in the approved file. The notification shall warn the interested persons that the lack of a pronouncement within the following twenty days shall be considered as an acceptance of the fixed valuation, in which case it shall be understood that the appraisal has been definitively determined. If, within the aforementioned period, the interested parties express their disagreement in writing with the approved valuation, the competent body of the expropriating administration shall send the file to the Expropriation Valuation Commission of the Balearic Islands, so that it may establish the appraisal which, in any case, shall be made in accordance with the valuation criteria established in the general applicable legislation.
Article 136 Approval and effects of the joint appraisal
1. The resolution approving the file processed by the joint appraisal procedure shall imply the declaration of urgency of the occupation of the property and rights concerned.
2. The payment or deposit of the amount of the valuation established by the competent body when approving the expropriation project shall produce the effects provided for in Article 52 of the Law of 16 December 1954 on compulsory expropriation, without prejudice to the fact that the appropriate procedures may continue to be carried out with regard to the fixing of the appraisal.
3. When the time comes for payment of the appraisal, it will only proceed to make it effective, and if not, it will be sent to those interested persons who provide a registration certificate in their favour, in which it will be stated that the note in article 32 of the Mortgage Regulation has been issued or, if not, the titles justifying their right, completed with negative certificates from the Land Registry referring to the same property described in the titles. If there are charges, the owners will also appear.
4. When there are registry pronouncements contrary to reality, the appraisal may be paid to the persons who have rectified or distorted them by any of the means indicated in the mortgage legislation or with a notoriety certificate processed in accordance with article 209 of the Regulations of the organisation and system of notaries, approved by the Decree of 2 June 1944.
Article 137 Individual appraisal procedure
1. If the joint appraisal procedure is not followed, the current administration shall approve the list of owners and the description of affected property and rights, after a public information period of twenty days, unless this list is already contained in the delimitation of the unit of action, the urbanization project or the ordinary public works project.
2. In this type of procedure, the declaration of urgency in the occupation referred to in article 52 of the Law of 16 December 1954 on forced expropriation, which corresponds to the competent administration for its resolution, shall be accompanied by a report justifying the particular reasons for its urgency.
Occupation and acquisition of properties
Article 138 Occupation and entry in the Land Registry
1. Once the payment or consignment has been made, one or more acts of occupation may be drawn up and all or part of the area covered by its action may be registered as one or more properties in accordance with the terms laid down in the mortgage legislation.
2. For the purposes of registration, the minutes or minutes of occupation shall be provided together with the minutes of payment or the proofs of payment of the appraisal of all the properties occupied, which shall be described in accordance with the mortgage legislation. The requirements established in the general legislation will be attached to this title, as well as to those that are necessary to carry out the inscriptions.
3. If when proceeding to the inscription founded doubts arise as to whether within the occupied surface there is any registered property that has not been taken into account in the expropriatory file, without prejudice to carrying out the inscription, such circumstance shall, for the purposes of the following article, be brought to the knowledge of the expropriating organism.
Article 139 Acquisition of property
1. Once the expropriation procedure has been processed in the manner established in the foregoing articles and the act or acts of occupation have been drawn up, it shall be understood that all the properties included therein have been acquired free of charge by the expropriating administration, which shall be maintained in its acquisition once its right has been registered, no real or interdictal action can be brought against them, even though interested third parties appear later who have not been taken into account in the file. However, they will keep and may exercise all the personal actions that may correspond to them in order to receive the justifiable price or the expropriatory indemnities and discuss their amount.
2. If, subsequent to the registration of the joint occupation certificate, properties or rights previously registered appear which were not taken into account in the expropriation file, the expropriating administration, ex officio or at the request of the interested party or the registrar itself, shall request the latter to carry out the corresponding cancellation, without prejudice to the provisions of the previous paragraph.
Article 140 Payment of the appraisal and valuation of expropriated goods and rights in actions of urban transformation of public promotion
1. In the case of urban transformation actions of public promotion for the creation of urbanized land, the administration acting may make payment of the appraisal of the expropriated goods and rights, in accordance with the expropriated persons, with plots resulting from the action itself.
However, it will not be necessary the consent of the owner to pay the justification in kind in the case of actions of transformation into urban land, provided that it is carried out within the scope of own management and within the deadlines established for completion of the works.
2. The valuation of the expropriated goods and rights and of the resulting plots will be made in accordance with the criteria established by basic state legislation, taking into account the costs of urbanization in accordance with the provisions of Article 76 of this law. All this in the form and conditions determined by regulation.
3. The cost of the expropriations referred to in this article may be passed on to the owners who are especially benefited by the action of urban transformation, through the imposition of special contributions.
Reversion and expropriation by ministry of the law
Article 141 Reversal of expropriated land
For the determination of the cases in which the reversion proceeds, the provisions of state legislation shall apply.
Article 142 Expropriation by ministry of law
1. When five years have elapsed since the entry into force of the planning without the expropriation of land which, in accordance with its urbanistic qualification, cannot be built by the owners, nor have to be compulsorily transferred because the fair distribution of benefits and burdens in the unit of action is not possible, the person owning the property or his successors in title shall advise the competent administration of his intention to initiate the appraisal file, which may be carried out by the ministry of the law if another two years have elapsed from the time of issuing the warning, which may be carried out by the ministry of the law if another two years have elapsed from the time of issuing the warning. For this purpose, the person owning the property may present the corresponding appreciation sheet, and if three months elapse without the administration accepting it, that person may address the Valuation Commission of Expropriation of the Balearic Islands, which will set the price in accordance with the applicable basic legislation and with the procedure established in Articles 31 and following of the Law of 16 December 1954 on compulsory expropriation.
2. For the purposes of the provisions of the previous section, the applicable legislation shall be that in force at the time of the initiation of the appraisal file by ministry of the law by means of the presentation of the appraisal sheet, and the appraisal shall be understood to also refer to this date. The interest for late payment will accrue from the presentation by the owner of the corresponding appraisal.
3. The calculation of the deadlines for advising the corresponding administration to present the corresponding assessment sheet and to address the Expropriation Valuation Commission of the Balearic Islands to set the price established in paragraph 1 above will be suspended if the competent bodies initiate a procedure for modification or review of municipal planning involving the suppression of the determination involving the expropriation of land, with the adoption of the relevant agreement in accordance with Article 51 of this Act.
In the areas affected by this agreement, the suspension shall also entail the suspension of the valuation procedures instituted before the Expropriation Valuation Commission of the Balearic Islands in accordance with paragraph 1 above. The calculation of the time limits and the processing of expropriation proceedings by ministry of the law initiated will resume if the period of suspension agreed without its publication had occurred for the purposes of the enforcement of the figure of urban planning processed.
If the publication took place before the Valuation Commission of Expropriation of the Balearic Islands fixed the value of the goods and the new planning figure did not determine their expropriation, the expropriation files by ministry of the law initiated will be without object. In this case, the resolution that puts an end to the corresponding procedure will manifest these circumstances and will order the archiving of the actions, without the expropriation of the goods taking place.
Balearic Islands Expropriation Valuation Commission
Article 143 Nature, function and composition of the Commission for the Valuation of Expropriation of the Balearic Islands
1. The Valuation Commission for Expropriation of the Balearic Islands is a permanent collegiate body specialising in the procedures for determining the price of compulsory expropriation.
It will be attached to the competent council in matters of territorial planning, and will act in the performance of its functions with full functional autonomy and without being subject to hierarchical instructions.
2. The Commission for the Valuation of Expropriation of the Balearic Islands shall be competent to determine the appraisal for all expropriations, whether or not due to urban planning, in which the expropriating administration is that of the autonomous community, that of the island councils or that of any of the municipalities of the Balearic Islands.
The acts dictated by this commission will put an end to the administrative route.
In proceedings for patrimonial liability in matters of territorial and urban planning directed against the administration of the autonomous community may be requested to the Valuation Commission of Expropriation of the Balearic Islands to issue a technical report on compensation, if any, may be appropriate in accordance with the valuation criteria legally applicable.
This report may also be issued at the request of island councils or town councils in relation to procedures of this type that affect them.
3. The Balearic Islands Expropriation Assessment Commission shall be composed of the following members, appointed in the manner determined by regulation:
a) A president: a person with a degree in law, architecture or engineering of recognised prestige, with more than ten years of professional experience in the public or private sector or in the free exercise of the profession, who will be proposed by the holder of the competent council in matters of territorial planning.
i. A lawyer from the Directorate of Lawyers of the Autonomous Community.
ii. Two senior facultative technicians, accredited experts in the field of valuations of the speciality corresponding to the nature of the goods or rights subject to expropriation, at the service of the Autonomous Community, who will be the rapporteurs.
iii. A freelance professional, with accredited experience in valuation matters, representing the official associations of architects or engineers, depending on the nature of the goods or rights to be expropriated.
iv. A higher optional technician proposed by the Federation of Local Entities of the Balearic Islands (FELIB) among professionals who have accredited the status of experts in this field.
v. In the case of island or local expropriations, a representative of the corresponding administration, who must be accredited as an expert in the field of valuations in the corresponding speciality or in the nature of the goods or rights subject to valuation. This representative of the administration shall act with voice but without vote.
(c) A secretary: a lawyer at the service of the competent regional planning council shall act as secretary.
4. Any of the senior technical facultative officials, accredited experts in the field of valuations, at the service of any of the public administrations, with the exception of the author of the appreciation sheet of the expropriating administration, may also act as rapporteurs for the purposes of preparing the proposals for agreement or opinion and intervene in the deliberations of the Commission with the right to speak but not to vote.
5. The organization and functioning of the Commission shall be determined by regulation.
6. The administrative support tasks of the Expropriation Valuation Commission of the Balearic Islands shall be carried out by the corresponding service of the competent council in matters of territorial planning.
Article 144 Administrative powers and budgets of the implementing activity
1. The administration shall ensure compliance with legislation and town planning through the exercise of the following powers:
a) The preventive intervention of acts of building or construction and use of land, including subsoil and flight, in the forms provided in this law.
b) Inspection of the execution of acts subject to municipal planning permission or prior notice.
c) The protection of urban legality and the re-establishment of the altered physical reality, in the terms provided for in this law.
d) The sanction of urban infractions.
2. Urban planning discipline will involve the exercise of the powers of paragraphs b), c) and d) above and is regulated in Title VIII of this Act.
Preventive intervention in building and land use
Article 145 Concept of planning permission and prior communication
1. The planning permission is the administrative act by means of which the faculty is acquired to carry out the acts of transformation or use of the ground or of the subsoil, of parcelling, building, demolition of constructions, occupation, exploitation or use relative to a land or determined building, previous concretion of what they establish and they make possible to the respect this law, the general municipal plans, those of detailed planning and those of development, and the rest of legislation and normative application.
2. The prior communication is the document by means of which the interested persons inform the municipal administration of their identification data and other requirements established for the exercise of the powers referred to in the previous paragraph, in the cases provided for in Article 148 of this Act, allowing the commencement of the activity in question under the conditions set out in Article 153 below and without prejudice to the powers of verification, control and inspection that correspond to the municipalities or island councils.
Article 146 Acts subject to municipal planning permission
1. The performance of the following acts shall be subject to prior municipal planning permission, provided that they are not subject to the regime provided for in Article 148 of this Act:
a) Urban parcels, groupings, segregations or other acts of division of properties, unless they are contained in approved reparcelación projects.
b) Earthworks and levelling, as well as discharges under the terms established by regulation.
c) Urbanization works to be carried out outside duly approved urbanization projects.
d) Construction works and new building, and any intervention in existing buildings, provided that it is required technical project in accordance with Law 38/1999 of November 5, ordenación de la edificación. In these cases, the licences shall necessarily contain a forecast of the number of dwellings or establishments. Interventions in existing buildings will be understood as those defined as such in the Technical Building Code.
e) The location of prefabricated houses and similar installations, whether provisional or permanent, except in campsites or legally authorised camping areas.
f) Total or partial demolition of constructions and buildings.
g) Change of use in buildings and facilities. Regulations shall specify the actions which, due to their small size, are exempt or which the authorisations of the competent agrarian authority exempt from obtaining a licence.
h) The felling in arboreal masses and arbustiva vegetation, as well as of isolated trees, that are object of protection by the instruments of planning.
(i) Placement of billboards visible from the public highway.
j) Closure of plots and land.
k) Radioelectric, telematic and similar networks, without prejudice to the provisions of the sectorial regulations applicable to them.
l) The opening of roads and accesses to plots.
m) The first occupation or use of buildings and facilities in general.
n) Provisional works and uses referred to in article 128 of this law.
o) Underground facilities dedicated to parking, industrial, commercial or professional activities, public services or any other use for which the subsoil is intended.
p) Any other acts determined by regulation or by the general plan.
2. Not be subject to the planning permission urban development works provided for in plans and projects duly approved, or parcels or the division of land into urban or developable land included in a project of reparcelación.
3. The actions of improvement and maintenance of the public works, as well as the special cases foreseen in article 149 of the present law, will be excluded from the obligatory license. Likewise, works that are the object of the execution orders referred to in article 123 of the present law shall be excluded from the prior licence, without prejudice to the need to present the technical project, if this were required.
4. For the purposes of this Law, when acts of construction or building, installation and use of land are promoted by the municipalities in their municipal area, the municipal agreement that authorizes or approves them shall be subject to the same requirements and shall produce the same effects as the planning permission, without prejudice to the provisions of local legislation.
Article 147 Full nullity
1. Town planning licences, execution orders or agreements approving the projects referred to in paragraph 4 of the preceding article shall be null and void:
a) They have been granted without the incorporation in the file of the authorisations or concurrent reports that are mandatory in accordance with this law or other applicable sectorial regulations.
b) That they have been granted without the proposed action having been submitted to public information, when this procedure is expressly demanded in the granting procedure by this law or other specific applicable urban legislation.
c) That they have been granted with manifest and serious infraction, and evident confrontation of the determinations of the ordering that derive directly from this law and of the urban plans with respect to the acts of parcelación, of urbanization, or of those relative to the number of housings, or to the conditions of use of the ground and of the subsoil, height, volume, situation of the constructions and maximum authorized occupation.
d) That have been granted in breach of the provisions of this Act, urban plans or municipal ordinances, with respect to acts of parceling, urbanization, building and use of land and subsoil, when carried out on land classified in the planning as public green areas or free building spaces of a public nature, parks, gardens, infrastructure and endowment reserves, goods or spaces catalogued in the planning or declared of cultural interest or catalogued and also those that are carried out on land classified as protected rustic land.
e) That they incur in cause of nullity of full right when it is so determined by a sectorial norm with the rank of applicable law by reason of the matter.
2. These licenses will not produce any effect, and with respect to the actions that could be carried out under its protection, will apply the measures of protection and defense of urban legality and review of administrative acts provided for in this law for acts without license, without limitation of term.
Article 148 Acts subject to prior notice
1. Works of simple technique and scarce construction entity or building works that do not require a project, in accordance with Law 38/1999, of 5 November, on building ordinance, shall be subject to the prior communication regime, under the terms provided for in this Law.
2. The island councils may regulate, by regulation, subject to the regime of prior communication for works and actions among those provided for in Article 146.1 above and for all or some municipalities of the island. However, under no circumstances may the following acts of transformation, construction, building and use of land and subsoil be subject to this system:
a) In general, any acts carried out on protected rustic land, and in buildings declared as goods of cultural interest or catalogued.
b) Movements of land, levelling, parcelling, segregation or other acts of division of properties in any kind of soil, when they do not form part of a reparcelación project.
c) Building and construction works that affect the configuration of the foundation and the load-bearing structure of the building.
d) Works that involve alteration of the volume, facilities and services of common use or the number of dwellings and premises of a building.
e) Total or partial demolition of constructions and buildings, except in cases of imminent ruin.
(f) The location of prefabricated houses and similar facilities, whether temporary or permanent.
g) The felling of tree masses or shrub vegetation which, due to their characteristics, may affect the landscape.
h) The first occupation of new buildings and houses referred to in letter f) above.
i) The provisional works and uses referred to in article 128 of the present law.
3. The authorisation or prior notification of works linked to the installation or the adaptation of permanent activities or to common infrastructures linked to these shall be governed by the provisions of the legislation regulating activities and, additionally, by the provisions of this law.
4. The installation of thermal or photovoltaic solar panels on the roof of buildings and the installation of recharging points for electric vehicles, with natural gas or liquefied petroleum gas (LPG), shall be subject to the prior communication regime.
Installations will not be subject to this regime:
a) That they are made in buildings declared as goods of cultural interest or catalogued.
b) That affect the foundations or the structure of the building.
c) That require an environmental impact assessment in accordance with the applicable environmental regulations.
Article 149 Acts promoted by public administrations
1. The acts specified in articles 146 and 148 of the present law that are promoted by bodies of public administrations or their instrumental bodies under public law shall also be subject to prior licence or communication, with the exceptions expressly provided for by sectoral legislation.
Notwithstanding the provisions of paragraph 1 above, infrastructure and equipment construction works that have been planned with sufficient detail, such as works to be executed in a special plan, an island territorial plan or a duly approved sectoral master plan, shall be excluded from being subject to a licence or from the prior communication regime.
3. The Government of the Balearic Islands, by reason of the matter, may agree, for reasons of urgency or of exceptional public interest requiring it, to send the project in question to the corresponding town hall, so that, within a period of one month, it notifies its conformity or disagreement with the urban planning in force.
During the same period, the Government of the Balearic Islands shall submit the project to a period of public exhibition by means of an announcement in the Official Gazette of the Balearic Islands with express indication of the address or the electronic access point where the project can be consulted.
In the event of disagreement, the interested body, following a report from the corresponding island council, shall send the file to the Governing Council, which shall decide whether to execute the project immediately and exempt from the licence or communication regime and, in this case, shall order the initiation of the procedure for modifying or revising urban planning, in accordance with the procedure established by this law.
4. The city council may only agree to the suspension of works when they are intended to be carried out in the absence of notification in accordance with urban planning, or in contradiction with it, and without the decision of the Governing Council on the appropriateness of implementing the project. The suspension shall be communicated to the drafting body of the project and to the Governing Council.
5. The powers referred to in paragraph 3 above shall also be exercised by the island councils, with strict reference to the exercise of powers relating to the matters established in Article 70 of the Statute of Autonomy of the Balearic Islands, and the decision on the appropriateness of the implementation of the project shall be taken by the plenary of the respective island council.
Article 150 Jurisdiction for the granting of town planning licences
The power to grant planning permissions shall be vested in the municipal body that determines the legislation and regulations applicable to the local regime. When the action to be taken is located in a property located in two or more municipalities, the power to grant planning permission will be the responsibility of the island council.
Article 151 Procedure for granting town planning licences
The arrangement of the procedure for the granting of municipal planning permission shall conform to the following rules:
1. The application shall sufficiently define the acts of construction or building, installation and use of land and subsoil that are intended to perform, through the appropriate document that, where appropriate, will be a technical project. In the case of a building project, the content and phases shall conform to the conditions established in the Technical Building Code for these projects, which shall be drafted by competent technical staff in accordance with the provisions of current state regulations.
2. The application shall be accompanied by the authorisations or reports required by the applicable legislation prior to the licence. Likewise, when the act involves the occupation or use of the public domain, the authorization or concession of the administration that owns it shall be provided.
3. Licences shall be granted in accordance with the provisions of the legislation and urban planning in force at the time of granting them, provided that they are resolved within the time limit. If they are resolved out of time, they will be granted in accordance with the regulations in force at the time they had to be resolved. In any case, the corresponding technical and legal report on the adequacy of the intended act in these provisions will be included in the procedure.
4. The express resolution shall be notified within a maximum period of three months, without prejudice to the origin of the interruption of the period in the terms established in Article 22 of Law 39/2015, of 1 October, of the common administrative procedure of public administrations. Once this period has elapsed, the licence requested may be understood to have been granted, without prejudice to the provisions of article 5.2 of this law, except in those cases in which a regulation with the rank of state or autonomous law expressly foresees the negative nature of the lack of resolution within the term.
5. The commencement of any work or use under the protection of this shall require, in any case, at least ten days’ notice to the municipality.
6. Town planning licences shall be granted or refused in accordance with the provisions of this Act, other directly applicable legislation and the provisions of town planning and, where appropriate, town and country planning. Any administrative act that refuses the license will be motivated, with explicit reference to the rule or provision of urban planning that the application contradicts.
Article 152 Technical project and planning permission
Where, in accordance with the applicable sectoral legislation, the action subject to the licence requires a technical project, its presentation shall constitute a requirement for the admission of the application to commence the grant procedure. The technical project shall specify the guarantee measures sufficient for the adequate performance of the action, and shall define the necessary data so that the competent municipal body can assess whether it complies with the applicable regulations.
2. The technical project will have a sufficient degree of definition of the works to allow facultative personnel other than the editor to direct the works or the corresponding works; it will necessarily be complemented with a town planning report as a specific and independent document in which the purpose and use of the construction or the projected action will be indicated, and its adaptation to the ordinance in force will be reasoned.
3. The project referred to in the previous section shall consist of the basic project and the execution project. For the purposes of this law it is understood that:
a) The basic project is the one in which the general characteristics of the work or action are defined in a precise manner by means of the adoption and justification of specific solutions.
b) The execution project is the one that develops the basic project in the complete determination of details and specifications of all materials, elements, construction systems and equipment.
4. The documentation that integrates the projects referred to in the previous section will be defined in accordance with the regulations and the strict effects of its necessary content for the processing of the procedure for granting the urban planning licence. In any case, once the technical project has been presented to the town hall, it shall become an official document, and the accuracy and veracity of the technical data provided shall be the responsibility of the author to all intents and purposes.
5. When the works licence has been applied for and obtained by means of the presentation of a basic project, the presentation of the execution project adjusted to the determinations of the former shall be mandatory, within a maximum period of six months from its concession. The administrative act of granting the license shall expressly indicate this duty, and the failure to present the execution project within this period shall imply, by legal ministry, the extinction of the effects, in which case a new license shall be requested.
6. The council will have one month to check the adequacy of the execution project with the basic project. Once this period has elapsed without the competent municipal body notifying the person concerned of a decision to the contrary, work may commence. If the municipal body detects, after a period of one month, alterations in the determinations of the basic project in accordance with which the licence was granted, the works shall be immediately halted and the project modification file shall be initiated, except in the cases provided for in article 156.2 of this law.
Article 153 Procedure for prior communication
1. The prior communication procedure shall be initiated by means of a communication signed by the promoter and addressed to the corresponding town hall at least one day in advance, with respect to the date on which the act is intended to begin, of one day, in the cases provided for in article 148.1, and of fifteen calendar days, in the cases of article 148.2 of this law. The communication shall attach the documentation that is determined by regulation or by municipal ordinance and that, as a minimum, shall consist of:
a) When it involves the execution of works or actions, the complete project of the action that is intended to be carried out when it is required under current legislation and, otherwise, the graphic documentation expressing the location of the property object of the action, sufficient description of it and its budget. Likewise, for all types of acts subject to the system of prior communication that affect the structure, exterior design, habitability or security conditions of buildings and installations, it will be necessary to present a document signed by competent technical personnel in which they assume the management of the work, enclosing the graphic documents and writings that are determined by regulation as well as, where appropriate, documentation referring to compliance with the Technical Building Code in accordance with state legislation on the matter.
b) The fixing of the term for the execution of the action, which in no case shall be more than two years. This period may be extended on the same terms as those laid down for licences.
c) Prior authorisations of a sectoral nature that are legally required.
d) Proof of payment of the corresponding taxes if, in accordance with local tax legislation and, where appropriate, with the respective tax ordinance, it is established that the self-assessment regime is applicable.
e) In the cases contemplated in article 148.4 of the present law, together with the previous communication, the project or the technical report required by regulation shall be attached, as well as the sworn declaration of not incurring in any of the cases of letters a), b) and c) contemplated in article 148.4 mentioned.
2. In the cases of article 148.1 of the present law, the interested person will be able to initiate the works on the day following the presentation of the previous communication to the competent administration. In all other cases, the competent body shall have ten days from the submission of the communication to check compliance with the requirements of this article. In the event that deficiencies are detected as a result of the non-compliance or lack of concreteness of any of the requirements, the promoter will be required to correct them and the period for the commencement of the works or actions will be interrupted.
3. Without prejudice to the cases provided for in article 187 of this law, the administration shall order the suspension of the works or actions when, after the actions have been initiated following the presentation of a prior notice, it is detected that the action sought is subject to the system of licences or authorisations in accordance with this law and any other applicable regulations.
Article 154 Temporary effectiveness and expiry of the planning permission
1. Licences which, due to the nature of the acts so protected, so require shall be granted for a specified period, both for their commencement and for their completion, which shall be expressly reflected in the act of granting.
2. In any case, the planning permissions to carry out works shall fix a period to start them and another to finish them, in accordance with the provisions of the rules of the general plan. In the event that the general plan does not establish it, it shall be understood that the period for starting the works shall be six months, and the period for completing them shall be three years.
These periods shall be calculated from the date of communication of the act of granting the licence, in the case of having obtained it in accordance with a basic and execution project; and from the express communication of the act of validation of the execution project or of the expiry of the period of one month from the submission referred to in Article 152.6 above.
3. Persons holding an urban planning licence shall have the right to obtain an extension of both the period for commencement and the period for completion of the works, and shall obtain it, by virtue of the law, for half of the period in question, if they request it in a justified manner and, in any case, before the established periods have expired. The licence extended by this procedure shall not be affected by the agreements governed by Article 51 of this Law.
4. They shall be entitled to obtain a second and final extension of the period for completion of the works, for half of the period established in the first extension, if they request it in a justified manner, provided that the coefficient of construction executed is at least 50% and that the façades and roofs are completed, including exterior joinery, and all this is reflected in a certificate from the facultative management of the work. The term of presentation of the application and the effects derived from the article 51 of the present law, and will be the same of the previous point.
5. The planning permission will expire if at the end of any of the periods established in this article or the corresponding extensions, which will be expressly indicated in the administrative act of granting, work has not begun or has not been completed. To these effects, the licence document shall incorporate the corresponding warning.
6. Once the town planning licence has expired, the competent municipal body shall declare it and agree to the extinction of the effects, ex officio or at the request of third parties and after hearing the owner.
7. If the planning permission has expired, the works may not begin or continue unless a new one is requested and obtained, in accordance with the planning ordinance in force applicable to the new application, except in cases in which the suspension of the grant has been agreed.
Article 155 Effects of planning alterations on granted authorizations
In the case in which the alterations of the planning affect qualifying administrative titles for the accomplishment of buildings, constructions and works foreseen in this law, in the sense that they are discordant with the new ordinance, the following regime will be applied:
1. In the cases in which the authorized action has not been initiated and the term of beginning foreseen in the previous article has been exceeded, the effectiveness of the license will be declared extinguished, previous hearing to the interested persons.
2. In the event that the time limit for the commencement or completion of works has not been exceeded, the administration may, if so recommended by the public interest, initiate the revocation or modification of the license, after hearing the interested parties, assuming the appropriate compensation in accordance with state legislation.
Article 156 Modifications during the execution of works
1. The works will be brought to a timely halt when, once an urban planning licence has been granted or a prior communication has been made legitimising the execution of works, a modification is to be carried out with the aim of varying the number of dwellings authorised or if these works entail alteration of the conditions of use of the land, the height, volume, location of the buildings or maximum authorised occupancy. The regulations applicable to this type of modification shall be those in force at the time of the authorisation to modify the licence, provided that they are resolved within a period of time; otherwise, they shall be granted with the regulations in force at the time when they are to be resolved, or, where appropriate, those in force at the time of the modification of the previous communication.
2. Notwithstanding the provisions of the previous section, if in the course of the execution of the works the structure or interior layout or external appearance is modified, without alteration of any of the parameters provided for in section 1 above, the works shall not be halted during the administrative processing of the request for modification of the project or list of works to be executed. The authorization or the refusal of the modifications will correspond to the organ that granted the original license. In this case, the regulations applicable to the modifications shall be those in force at the time of granting of the original licence or presentation of the initial prior notification, provided that the period set for the execution of the works has not been exceeded.
3. Under no circumstances may the benefits of section 2 of this article be invoked for works carried out in buildings catalogued or included in historical-artistic ensembles, subject to legislation for the protection of the historical heritage of the Balearic Islands or catalogued or protected by urban planning.
4. If it appears from the content of the modification of the prior communication referred to in the previous paragraphs that the works to be executed may no longer be the subject of this procedure, the competent municipal body shall notify the person concerned that the works shall be halted and that an application for an urban planning licence shall be made under the terms established in this Act.
Article 157 Information on works
The exhibition of an informative poster of the enabling title of the performance, the identification of the promoter and any other data that is established in a regulatory way or in the general plan will be obligatory in the place of the work.
If the event is not subject to licensing, a copy of the previous communication will be exhibited.
The information contained in the information poster or in the copy of the prior communication must be clearly legible for the duration of the performance.
Article 158 Urban planning authorizations for the occupation of buildings and the contracting of services
1. The occupation or first use licence shall have the objective of verifying compliance with the conditions of the prior urban planning licence, verifying the suitability of the buildings or installations carried out for the authorised project and authorising their putting into use. The processing of these licences shall be preferential, and the express resolution shall be notified within one month from the request of the interested party, with the documentation determined by regulation, without prejudice to the interruption of the term in the terms established by legislation on administrative procedure.
The license of occupation or of first use will not be required when the sectorial legislation so determines, supposition in which the city council will emit a certificate of no necessity, with expression of the norm that thus establishes it.
2. In any case, in order to be able to occupy any building intended to house people, it must have a valid certificate of habitability.
3. The provisional contracting of the respective services by the distributing, supplying and marketing companies shall require proof of obtaining the works licence, and the duration of the contracts shall be, as a maximum, the period established by this licence for the completion of the acts of construction, building or installation. Once this period has elapsed, the service may no longer be provided, unless one of the following circumstances occurs:
a) Before the end of the period established in the licence, it must be proven that the municipality has granted the corresponding extension on the terms established in this law, and therefore the duration of the contract may be extended until the end of the extension.
b) That, before the end of the initial or extended term of the contract, it is presented to the distributing, supplying or marketing company as proof that the occupancy or first use licence has been requested, or the certificate of no need for this licence, or the certificate of habitability or equivalent document, accompanied by a sworn statement that all the documentation required by the applicable regulations has been attached to the application, so that the term of the contract may be extended by 9 months, starting from the date of the end of the initial or extended term of the contract.
4. The companies mentioned in the previous section, in any case, will require for the definitive contracting of electricity, water, gas and telecommunications services, the obtaining of the corresponding valid certificate of habitability or the equivalent document, in accordance with the regulatory regulations.
Article 159 Urban plots
1. Urban plots are the simultaneous or successive division of land into two or more lots in order to constitute building plots that can give rise to the constitution of a nucleus of population.
2. They shall be illegal for urban purposes:
a) Any urban parceling in urban land and urbanizable contrary to the provisions of the implementation planning, or that violates the provisions of Article 160 of this law.
b) All urban parcels in rustic land.
Article 160 Indivisibility of plots
1. In urban land and urbanizable will be indivisible:
a) The plots determined as minimum in the planning in order to constitute independent estates.
b) Plots whose dimensions are equal to or smaller than those determined as minimum by the planning, except if the resulting lots are acquired simultaneously by persons owning adjacent land, in order to group them and form a new farm.
(c) Plots whose size is less than twice the area determined as the minimum in the planning, unless the excess over the minimum can be segregated for the purpose indicated in the preceding letter.
d) Building plots in a proportion of volume in relation to their area when the corresponding to the whole area was built or, in the case that it was built in a smaller proportion, the excess portion, with the exceptions indicated in the previous letter.
2. The indivisibility of plots in rustic soil shall be determined by specific legislation.
3. Notaries and land registrars shall record in the description of the properties the indivisible quality of those that are in any of the cases expressed.
4. The granting of a building licence on a plot included in letter d) of paragraph 1 above shall be communicated to the Land Registry so that it may be recorded in the registration of the property.
Article 161 Authorization of parcels
1. No urban parcelling may be carried out without prior approval of the general plan when it affects urban land or directly ordered land for development, or without prior approval of the partial plan of the corresponding sector for land for development not directly ordered.
2. Any urban parceling will be subject to license and any reparcelación to the approval of the corresponding project.
3. Notaries and property registrars will require to authorize and register, respectively, deeds of land division in which the granting of the license or approval of the project is accredited, and the first must testify in the document.
4. In no case shall plots of land be considered or allowed to be built on the lots resulting from a subdivision or reparcelling that have been carried out in violation of the provisions of this article or of those that precede it.
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Article 162 Urban inspection
1. Nature and functions of the urban inspection:
a) The urban inspection is a power directed to verify that the acts of urban subdivision, urbanization, construction or building, installation and use of land and subsoil conform to legislation and urban planning and, in particular, to the provisions of this law and the regulations that develop it.
b) Municipalities, island councils and the entities provided for in Article 15.5 of this Act shall carry out these inspection functions within the scope of their respective competences, within the framework of their planning and of inter-administrative cooperation and collaboration.
c) Inspection functions may be exercised ex officio or by means of a complaint from private persons or other administrations. In any case, the denunciations will comply with the requirements demanded by the legal system.
2. Practice of town planning inspection:
a) In the exercise of their functions, the inspecting personnel shall enjoy full autonomy and shall, in general, have the status of agent of the authority. They shall be empowered to require and examine any type of documents relating to the planning instrument and its execution, to check the adequacy of the acts in relation to the applicable legislation and town planning and to obtain the information necessary to carry out their task.
b) The inspecting personnel shall exercise their functions with an official document accrediting their condition, with which they shall have free access to the buildings, to the premises or to the lands where the works or uses they intend to inspect are carried out, in accordance with the applicable legal provisions.
c) When inspections have to be carried out that involve entering homes and other places whose access requires the consent of the owner, if such consent is not expressly recorded, prior authorization shall be obtained from the corresponding contentious-administrative court. Premises, warehouses, buildings and constructions not intended for human habitation, nor unfinished dwellings, shall not be considered domiciles when it is proved in the file that they are not effectively and permanently occupied. Consent may be requested by means of a request addressed to the person recorded as the owner, which, if not replied to within the period conferred by the administration acting, shall be tacitly denied.
d) Except in the cases of the previous paragraph, the administration acting may require the appearance of the person owning the works in order to facilitate access for inspection purposes. To this end, the administration shall contact the property, by any means admitted in law, to communicate the date and time for the visit of the inspection staff, which shall be within 15 working days following the date of receipt of the request. Failure to respond within the period indicated of 15 days or refusal without just cause shall be considered an obstacle to the power of inspection, with the sanctioning consequences provided for in this law, and so the owner shall be warned in the request made to him.
e) The minutes of the inspection drawn up by the inspecting personnel in the exercise of their own competences in matters of urban discipline shall have a presumption of veracity as to the facts contained, unless there is proof to the contrary.
f) The facts which appear in the inspection reports shall give rise to the ex officio action of the competent urban planning body.
3. Obligations before the town planning inspection:
a) Both public administrations and private individuals shall be obliged to collaborate with urban inspectors and to provide them with access to buildings, constructions or installations, the examination of all documentation related to compliance with urban legality, as well as the obtaining of copies or reproductions thereof.
b) In the case of personnel at the service of public administrations, an unfounded refusal to provide the information requested by the inspecting personnel, especially that relating to the content and background of the relevant administrative acts, will constitute an obstacle to the exercise of the power of inspection and will be considered an administrative offence, without prejudice to the appropriate disciplinary measures.
c) The administration acting may require the appearance of persons allegedly responsible for an infringement in their offices and summon them at least 10 working days in advance, in order to facilitate the practice of the power of inspection, provide documents or information as appropriate. The summons shall expressly state the place, date, time and object of the appearance, and shall indicate to the addressee that failure to appear without just cause shall be considered an obstacle to the power to inspect, with the sanctioning consequences provided for in this law.
Pursuant to section 1 of the eighth transitory provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved on the date of its entry into force, regardless of the date on which the alleged offence was committed.
Urban infractions and their consequences
Article 163 Concept, classes and legal consequences of planning offences
1. Urban infractions are actions or omissions that are typified and sanctioned as such in this law.
2. Types of infringements:
a) Urban infractions are classified as minor, serious and very serious.
b) They shall be considered minor offences:
i. Providing, distributing, marketing or supplying services by the corresponding companies on a provisional basis, without requiring accreditation of the corresponding planning permission, when appropriate or when the period established in the provisional contract has elapsed.
ii. Not subjecting the building to the technical inspection or evaluation of buildings provided for in article 125 of this law, when obliged by the regulations in force.
iii. All those that in the following section are expressly exempted from classification as serious.
iv. Failure to comply with the duty of information and publicity established in article 157 of the present law.
(c) They shall be regarded as serious infringements:
i. Execute, carry out or develop acts of urban subdivision, urbanization, construction or building and installation or any other transformation or use of land, flight or subsoil, subject to planning permission, prior notice or approval, and that are executed without these or contravene their conditions, unless they are modification or reform and, by its smaller entity, do not need technical project, in which case will have the condition of slight infringement.
ii. Execute, carry out or develop acts of subdivision, urbanization, construction or building and installation, or any other transformation or use of land, flight or subsoil, contrary to territorial or urban planning.
iii. Failure to comply, when executing planning instruments, duties and obligations imposed by this law or by planning instruments, management or execution, unless they are voluntarily remedied after the first requirement made to that effect by the administration, in this case will have the condition of slight.
iv. Obstructing the exercise of the functions proper to the inspection power referred to in article 162 of the present law.
v. Continue with the rendering, distribution, commercialization or provisional supply of services by the corresponding companies when the measure of precautionary suspension of these services has been adopted, as well as definitively contracting the services in violation of the provisions of article 158 of the present law.
vi. Actions or omissions described in paragraphs 3, 4 and 5 of article 164 of this law.
(d) They shall be regarded as very serious infringements:
i. Make urban parcels on land that have the regime of rustic land.
ii. Carrying out enforcement activities without the necessary planning instrument for their legitimation.
iii. Those classified as serious in the previous section, when they affect:
– Protected rustic land.
– Parks, gardens, open spaces, infrastructures and other reserves for endowments.
– Goods or spaces catalogued in the municipal planning, or declared of cultural interest or catalogued.
3. Legal consequences of urban infractions:
a) Any action or omission classified as an urban infraction in this law shall imply the adoption of the following measures:
i. Those necessary to re-establish urban legality or physical reality.
ii. Those that proceed due to the requirement of administrative or penal sanctioning and disciplinary responsibility.
iii. Relevant for the compensation of damages and compensation for damages to be paid by the responsible persons.
b) In any case, when legalization is not possible, measures will be adopted aimed at replacing the physical reality altered to the state prior to the commission of the infraction.
c) The measures to re-establish urban legality or physical reality will have a real character and will also fully affect third parties acquiring the properties subject to these measures or who are holders of other rights in rem.
d) The measures provided for in letter a).i and a).iii shall not be of a penal nature and may be adopted in the same file or in another complementary file, in accordance with the provisions of article 164 of this law.
Article 164 Responsible persons
They will be responsible for general urban infractions:
1. In acts of urban subdivision, urbanization, construction or building, installation or any other transformation or use of land, flight or subsoil executed, carried out or developed without concurrence of the legal assumptions for its legitimacy:
a) Owners, developers or builders, as defined in the legislation on the management of buildings, developers and all other persons with decision-making powers on the implementation or development of acts, as well as technical staff entitled director of these, and the drafter of projects when in the latter concur willful misconduct, guilt or gross negligence.
It shall be presumed, unless there is proof to the contrary, that the person owning the land has knowledge of the works that constitute an urban infraction when by any act, including simple tolerance, it has ceded its use to the person directly responsible for the infraction.
b) Those persons or members of administrative bodies and public officials who, by action or omission, have directly contributed to the infringement or have obstructed the inspection.
2. In the acts referred to in the foregoing paragraph executed, performed or developed under the protection of administrative acts that constitute or legitimize an urban infraction:
(a) The person holding the single-member administrative body who has issued licences or approvals without the required reports or against those issued in an unfavourable direction by reason of the infringement; members of collegiate bodies who have voted in favour of licences or approvals under identical conditions; and the secretary who in the report has not warned of the omission of any of the prescribed technical and legal reports, as well as optional staff who have given favourable information on licences or approvals.
(b) Persons referred to in paragraph 1 above in case of wilful misconduct, gross negligence or fault.
3. The authorities and public officials who, with intent, guilt or gross negligence, shall incur in urban administrative liability:
a) Let the restoration procedures and/or the sanctioning procedures expire in a massive and continuous manner.
b) Allow urban infractions to be prescribed on a massive and continuous basis.
c) Let the sanctions imposed be prescribed on a massive and continuous basis.
d) Do not execute, subsidiarily, within the maximum established term, the recovery orders already dictated and firm in a massive and continuous way.
Pursuant to paragraph 2 of the eighth transitional provision, paragraphs 3 to 7 of article 164 of this Act shall not apply to cases of fact that occurred before its entry into force.
4. The authorities or public offices competent to provide the administration with sufficient human and material resources to prevent the massive and continuous expiration of the sanctioning and/or restoration procedures and the massive and continuous prescription of the urban infringements, the sanctions imposed and the recovery orders already issued and firm, shall incur in urban administrative responsibility and shall not adopt the necessary measures to provide the administration with sufficient resources after having been warned of their insufficiency by the personnel responsible for the instruction or processing of the files.
Pursuant to paragraph 2 of the eighth transitional provision, paragraphs 3 to 7 of article 164 of this Act shall not apply to cases of fact that occurred before its entry into force.
5. The authorities or public officials competent to resolve that they cease to sanction an urban infraction or cease to order the reinstatement when the person instructing the procedure submits a proposal for a resolution in this sense, or revoke a sanctioning or reinstatement resolution discretionally and without a legal basis, shall incur in urban administrative responsibility.
Pursuant to paragraph 2 of the eighth transitional provision, paragraphs 3 to 7 of article 164 of this Act shall not apply to cases of fact that occurred before its entry into force.
6. In the case of the previous paragraph, the sanction to be imposed on the responsible person shall be that which corresponds to the sanction not imposed or revoked; in the event that the decision not adopted or revoked is one of reinstatement, the sanction shall be equivalent to the cost foreseen for its reinstatement. In the cases of paragraphs 3 and 4 of this article, the sanction corresponding to each of the persons responsible shall be the highest fine that would have been imposed in the sanctioning procedures that have been allowed to expire or in the infringements, sanctions or firm recovery orders that have not been executed. All this regardless of the criminal responsibilities that these facts may generate.
Pursuant to paragraph 2 of the eighth transitional provision, paragraphs 3 to 7 of Article 164 of this Act shall not apply to cases of fact that occurred before its entry into force.
7. In the cases of rendering, distribution, marketing or supply of services that are typified as urban infraction in articles 163.2.b).i and 163.2.c).v of this law, the rendering, distributing, marketing or supplying companies will be responsible.
Pursuant to section 2 of the eighth transitional provision, sections 3 to 7 of article 164 of this law shall not apply to events that occurred prior to its entry into force.
8. Legal persons shall be responsible for urban infractions committed by their organs or agents and, where appropriate, shall bear the cost of measures to restore the disturbed legal order and of compensation for damages to the corresponding third parties.
However, no sanction may be imposed on public administrations, without prejudice to the responsibilities that may have been incurred by the natural persons acting for them and the demand for compensation for damages, as well as the restitution of the altered physical reality and the illicit benefit obtained.
Subsidiary responsibility for the obligation to pay fines and for the unlawful benefit obtained imposed on legal persons by virtue of the provisions of this law shall lie with the persons or entities in which any of the circumstances set out in letters a), b), c), g) and h) of article 43.1 of General Tax Law 58/2003, of 17 December.
The legal regime applicable to the requirement of subsidiary liability shall be the same as that provided for in the aforementioned Law 58/2003 and the implementing regulations.
9. Entities and unions without legal personality, such as communities of property or lying inheritances, may also be sanctioned when the infringement consists of the transgression of duties or prohibitions, compliance with which corresponds to them, and they shall be jointly and severally liable for the payment of any fine that may be imposed on the participants or co-owners of these entities, in proportion to their respective shares.
Article 165 Death or extinction of persons responsible for infringements
1. The death of the natural person will extinguish his responsibility for the infractions foreseen in this law, without prejudice to the fact that the administration adopts the appropriate non-sanctioning measures and that, as the case may be, it demands from the heirs or from the persons who have benefited or profited from the infraction the illicit benefit obtained from the commission.
2. If the legal person who has committed an offence provided for in this Act ceases to be a perpetrator before being punished, natural persons shall be deemed to have committed the offence if, through their management bodies or acting in their service or on their own behalf, they have determined by their conduct that the offence has been committed.
3. In case of extinction of the legal person responsible when the sanction has already been imposed:
a) In the case of a legal entity to which the law limits the patrimonial responsibility of the partners, participants or co-owners, they shall be jointly and severally liable, up to the limit of the value of the liquidation quota allocated to them, the payment of the fine and, where appropriate, the cost of re-establishing the altered physical reality.
b) In the case of a legal entity to which the law does not limit the patrimonial responsibility of the partners, participants or co-owners, the latter shall be jointly and severally liable for the full payment of the fine and, where applicable, of the cost of restoring the altered physical reality.
4. If the perpetrator of an infringement is an entity without legal personality and is extinguished, either before or after the imposition of the sanction, the payment of the fine and, where appropriate, the cost of restoring the altered physical reality shall be transmitted to the participants or co-owners of these entities, who shall be jointly and severally liable.
Article 166 Municipal and supra-municipal powers
1. The town councils shall exercise their own powers in matters of urban discipline in the terms determined by local legislation and the present law. The powers shall include all the powers of a local nature that this law does not expressly attribute to other bodies.
2. The island councils and entities provided for in Article 15.5 of this law shall not have any competence in urban discipline in urban and developable land. All the competences that are mentioned in the following sections of this article will be considered applicable only in rustic land and may be exercised both by the island councils directly and by the entities provided for in Article 15.5 of this law.
3. The island councils will have all the powers in the field of urban discipline in the land protected rustic paragraphs a) (AANP), b) (ANEI), c) (ARIP) and e).1 (coastal APT) of Article 19.1 of Law 6/1999 of 3 April, the guidelines of territorial planning of the Balearic Islands and tax measures. Specifically, they shall have the following powers over the aforementioned land:
a) The urban inspection, in the terms of article 162 of this law.
b) Those necessary to re-establish urban legality or physical reality. However, municipalities may also execute the precautionary measure of suspension regulated in article 187 of this law.
c) Those that proceed to demand administrative sanctioning and disciplinary responsibility or to urge criminal responsibility.
d) Those relevant to the compensation of damages and to the compensation of damages charged to the responsible persons.
e) Require municipalities to review ex officio urban licenses and orders of execution, as well as any other administrative act provided for in this law, the content of which constitutes or enables a manifestly serious or very serious urban infraction.
f) To challenge before the administrative contentious jurisdiction urban planning licences and execution orders, as well as any other administrative act provided for in this law, the content of which manifestly constitutes or enables any serious or very serious urban infraction.
g) When town planning licences manifestly constitute or legitimise a serious or very serious town planning offence, the Island Council shall require the ex officio review by the Town Hall or shall lodge an administrative contentious appeal. In the resolution or agreement requiring ex officio review or the filing of the appeal, or at any time thereafter, the island council may require the municipality to adopt, within a period of one month, the provisional measure suspending the effectiveness of the licence and, consequently, the immediate suspension of the acts still carried out under its protection. If the town council does not adopt the provisional measure within this period, the island council will be entitled to do so, with the consequent order of paralysis plus all the measures to execute it foreseen in article 187.6 of this law. In the event that it is adopted, the precautionary measure will be maintained until the sentence issued in the contentious-administrative process of impugnation of the act acquires firmness, unless the suspension is lifted beforehand by the competent judicial authority. However, the affected municipality shall initiate and resolve the ex officio review procedure of the act.
h) The rest of the powers necessary to exercise urban discipline in this kind of land.
4. In the categories of rustic land not mentioned in the previous paragraph, the island councils will be subrogated in the municipal competences in accordance with the following rules:
a) In actions carried out without the legally enforceable legitimising title of which it has become aware by means of an ex officio inspection or by virtue of a complaint, the corresponding island council must adopt the precautionary suspension measures provided for in article 187 of this law, and must immediately inform the municipality, which must abstain from exercising this competence, and must also require it because it initiates the procedure for re-establishing urban legality and the altered physical reality.
Letter a) of number 4 of article 166 drafted by number 2 of article 5 of Law [BALEARIC] 6/2018, June 22, which modifies several rules of the legal system of the Balearic Islands in tourism, public service, budget, personnel, urban planning, pharmaceutical planning, transport, waste and local regime, and authorizes the Government of the Balearic Islands to approve certain rewritten texts (“B.O.I.B.” June 26). Valid: 27 June 2018
b) The Island Council, after a period of one month has elapsed from the formulation of the request to the municipality to initiate the re-establishment procedure, or after noting the expiry of the maximum period for notifying the resolution of the re-establishment procedure already initiated, shall initiate this procedure. All this without prejudice to the municipal competence to legalize the acts and uses, where appropriate.
c) In the cases described in the previous paragraph, once the Island Council has initiated the procedure for reinstatement, the municipality will lose competence and, when it receives notification of the corresponding act, it will file the actions it may have initiated. This circumstance shall affect both the competence to initiate and resolve the re-establishment procedure and the competence to initiate and resolve the sanctioning procedure.
d) The expiry of the one-month period mentioned in paragraph b) above without the corresponding requirement being complied with shall also give rise to all the civil, administrative and criminal liabilities that are legally derived.
e) In accordance with Article 60 of Law 7/1985 of 2 April 1985, which regulates the bases of the local regime, the actions carried out by the Island Council in substitution of the City Council will be the responsibility of the latter. To this end, the municipality shall pay the corresponding fee to the Island Council at the time when the replacement activity begins. The income thus derived will be assigned to the financing of the expenses included in article 178.3 of the present law.
5. In any category of rustic land, island councils may, upon request to the municipality to exercise its competence within a period of one month, be subrogated in the following municipal competences:
a) Once the orders for the restoration of the altered physical reality issued by the town councils have become final, impose the fines provided for in article 194 of this law and execute the orders subsidiarily.
b) In the non-orderly situation of article 129.2.b) of this law, in the case of buildings or constructions that have been executed after March 1, 1987: to require the companies providing, distributing, marketing or supplying to cease providing, distributing, marketing or supplying the services of electricity, gas, water, sanitation, telephone, telecommunications or of a similar nature, after ascertaining that the aforementioned building does not have the required certificate of habitability in force.
c) In the cases of paragraphs a) and b) above, once the Island Council has subrogated itself to municipal jurisdiction and has initiated the corresponding actions, there will be a loss of jurisdiction on the part of the City Council, which, when it receives notification of the corresponding act, will file the actions it has been able to initiate. The expiration of the period of one month without the corresponding requirement being complied with will also give rise to all the civil, administrative and criminal liabilities that are derived legally. In accordance with article 60 of Law 7/1985, of 2 April, which regulates the bases of the local regime, the actions carried out by the Island Council in substitution of the Town Hall will be the responsibility of the latter. To this end, the council will pay the corresponding fee to the island council at the time the replacement activity begins. The income thus derived will be assigned to the financing of the expenses included in article 178.3 of the present law.
6. Notwithstanding the provisions of the previous sections of this article, the power to sanction infringements of articles 170.3 and 174 of this law, relating to the conservation of urban development works and of constructions and buildings, and to non-compliance with the duties of inspection or evaluation of buildings, shall be exclusively municipal, regardless of the type of land on which these infringements are committed.
Sanctions for urban infraction
Types of sanctions
Article 167 Works and uses
1. The performance of construction works, building, installation and earthworks on urban or developable land without the mandatory enabling urban title, shall be punishable by a fine of 50 to 100% of the value of the works.
The performance of construction works, building, installation and earthworks on land intended for parks, gardens or open spaces, equipment, infrastructure and other reserves for endowments shall be sanctioned with a fine of 150 to 300% of the value of the works.
2. The carrying out of construction, building, installation and earthmoving works on unprotected rustic land without the enabling administrative title shall be sanctioned with a fine of 100 to 250% of the value of the works.
The performance of construction works, building, installation and earthworks on protected rural land without the enabling administrative title shall be punishable by a fine of 250 to 300% of the value of the works.
3. The use of a building, construction or installation without the required urban title to enable its use shall be punishable by a fine of 25 to 50% of the value of the building, construction or installation if the use is permitted by the urban and territorial regulations in force on the date of commencement of the re-establishment procedure; and 50 to 100% of the value of the building, construction or installation if the use is not permitted or is a conditioned use in accordance with the urban and territorial regulations in force on the date of commencement of the re-establishment procedure. This sanction will be independent of the one foreseen in the two previous sections, given that they are different urban infractions.
4. The change of use of a construction, building or installation without having the obligatory urban title that enables the change of use, and regardless of whether or not works are carried out to achieve this change, will be sanctioned with the fine of a higher amount between the following two:
a) That which corresponds according to sections 1 and 2 of this article, which will mean taking into account only the value of the works carried out to achieve the change of use and whether the new use achieved is admitted, conditioned or prohibited in accordance with urban or territorial regulations.
b) Fine of 25 to 50% of the value of the building, of the construction or of the installation if the use is permitted by the urban and territorial regulations in force on the date of commencement of the re-establishment procedure; and of 50 to 100% of the value of the building, of the construction or of the installation if the use is not permitted or is a conditioned use in accordance with the urban and territorial regulations in force on the date of commencement of the re-establishment procedure.
5. When the commission of the infractions foreseen in sections 1, 2 and 4 of this article also implies the commission of any of the infractions foreseen in the following article, only the highest sanction will be applied.
As established in section 5 of the eighth transitory provision, articles 167 to 174 of this law shall apply to offences committed before the date of its entry into force, with the exception that the application of these articles entails a fine greater than that deriving from the application of the previous legal regime.
Article 168 Acts having an impact on goods or spaces protected by the regulations on historical-artistic heritage and on the environment
1. Acts that have an impact on goods or spaces protected by the regulations on historical-artistic heritage:
a) The demolition or demolition, dismantling or serious distortion, in whole or in part, of the goods or spaces protected by the regulations in matters of historical-artistic heritage, including the goods or spaces protected by the municipal catalogues provided for in article 48 of this law, shall be sanctioned with a fine of 200 to 300% of the value of what has been destroyed or altered.
b) Any other violation of the regime of uses and works of the goods or spaces mentioned in paragraph 1 above shall be sanctioned with a fine of 100 to 150% of the value of the built or altered.
c) Sanctions imposed in accordance with the two previous sections shall be independent and compatible with those that may correspond due to the application of the sanctioning regime of the regulations in the matter of historical-artistic heritage, given that it is a question of the protection of different legal assets. However, if the actions of the previous sections do not involve any work or any change of use, they will only be sanctioned by applying the sectorial legislation in the matter of historical-artistic heritage, given that no urban law will have been violated.
2. Acts that affect property or spaces protected by environmental regulations:
a) The carrying out of construction, building or installation works that affect spaces or goods subject to protection by any normative instrument in environmental matters, will be sanctioned with a fine of 200 to 300% of the value of the work carried out.
(b) The felling, burning, felling or removal with chemical agents of tree masses, shrub vegetation or isolated trees protected by planning instruments shall be punishable by a fine of 100 to 150% of their value.
c) The sanctions that proceed in accordance with the two previous sections will be independent and compatible with those that may correspond by application of the sanctioning regime of the environmental regulation, given that it is a question of the protection of different legal goods.
As established in paragraph 5 of the eighth transitional provision, articles 167 to 174 of this law shall apply to infringements committed before the date of its entry into force, except that the application of these articles involves a fine greater than that arising from the application of the previous legal regime.
Article 169 Parcels, segregations, divisions and groupings
1. Urban parcels in urban land or urbanizable that contradict the determinations of urban planning will be sanctioned with a fine of 10 to 30 % of the sale value of the land affected.
2. The division or grouping of premises or dwellings without the corresponding enabling urban title shall be sanctioned with a fine of 150% of the increase in the value obtained with the operation.
3. Parcels and segregations in rustic land:
a) The urban parcels in lands that have the regime of rustic land will be sanctioned with a fine of 40 to 80% of the value of the affected lands, value that can never be less than the difference between the initial value and the sale of the corresponding plots.
(b) Segregation of land smaller than or equal to the minimum dimensions determined in the planning instrument shall be punishable by a fine of 20 to 40% of the value of the affected land.
(c) A fine of 50 per cent of the value of the construction shall be imposed on works to close down plots of land on rustic land when they are the result of a division or segregation that has been carried out contrary to the provisions of agricultural or forestry legislation on minimum cultivation units or urban planning.
Pursuant to paragraph 5 of the eighth transitional provision, articles 167 to 174 of this Act shall apply to infringements committed before the date of its entry into force, except that the application of these articles involves a fine greater than that arising from the application of the previous legal regime.
Article 170 Development of management and implementation instruments
1. Failure to comply with the obligations and duties for the execution of the planning derived from the corresponding management and enforcement instruments shall be punishable by a fine of 600 to 60,000 euros. The amount of the fine shall be determined taking into account the value of the obligations that have been breached.
2. The performance of road works, infrastructure, services and other urbanization that are executed on any kind of land in contravention of the determinations of the applicable urban planning, will be sanctioned with a fine of 100 to 250% of the value of the works executed.
3. Non-compliance with the obligations assumed to conserve and maintain the urban development works and the corresponding endowments and public services, as well as those to conserve and rehabilitate the constructions and buildings that the planning instrument considers to be of special protection due to their architectural, historical or cultural value, shall be sanctioned with a fine of 600 to 60,000 euros. The amount of the fine will be proportional to the degree of deterioration or abandonment caused by non-compliance with the elements of the urbanization, the endowments and the corresponding public services and, where appropriate, the constructions and buildings.
Pursuant to section 5 of the eighth transitional provision, articles 167 to 174 of this law shall apply to infringements committed before the date of its entry into force, except that the application of these articles entails a fine greater than that arising from the application of the previous legal regime.
Article 171 Other soil actions
The extraction of aggregates, the exploitation of quarries and the deposit of materials in any kind of soil will not be considered urban infractions and, therefore, will be acts that could only be sanctioned by the competent administration if they imply infractions of sectorial norms.
Pursuant to paragraph 5 of the eighth transitional provision, articles 167 to 174 of this law shall apply to infringements committed before the date of its entry into force, except that the application of these articles entails a fine greater than that arising from the application of the previous legal regime.
Article 172 Information on construction sites and hindrance to inspection work
1. Failure to comply with the provisions of article 157 of this law shall be punishable by a fine of 100 euros, irrespective of the possibility of immediate halting of works if it were assumed in article 187 of this law.
2. The offence described in article 162 of this Act shall be punishable by a fine of 3,000 to 6,000 euros.
Pursuant to paragraph 5 of the eighth transitional provision, articles 167 to 174 of this law shall apply to offences committed before the date of its entry into force, except that the application of these articles entails a fine greater than that deriving from the application of the previous legal regime.
Article 173 Provision, placing on the market or supply of services
1. The infringement described in article 163.2.b).i shall be sanctioned with a fine of 600 to 3,000 euros, without prejudice to the application of the economic benefit exclusion clause provided for in this law.
2. The infringement described in article 163.2.c).v shall be sanctioned with a fine of 10,000 to 15,000 euros, without prejudice to the application of the economic benefit exclusion clause provided for in this law.
In accordance with paragraph 5 of the eighth transitional provision, Articles 167 to 174 of this Law shall apply to infringements committed before the date of its entry into force, except that the application of these Articles shall entail a fine of a greater amount than that resulting from the application of the previous legal regime.
Article 174 Technical inspection or evaluation of buildings
The offence described in Article 163.2.b).ii shall be punishable by a fine of 600 to 3,000 euros.
Pursuant to paragraph 5 of the eighth transitional provision, articles 167 to 174 of this law shall apply to infringements committed before the date of its entry into force, except that the application of these articles entails a fine greater than that deriving from the application of the previous legal regime.
Article 175 Accompanying sanctions
1. The commission of very serious urban infractions, in addition to fines, may give rise, when necessary, to the imposition of the following ancillary sanctions:
a) Prohibition of contracting works with the corresponding public administration.
b) Disqualification of the person from being the beneficiary of subsidies, tax incentives and any other measures to encourage acts which, in accordance with this law, require licences, approvals, authorisations or orders for execution, depending on the nature of the act on the occasion of which the infringement was committed.
c) Prohibition of the exercise of the right of initiative for the attribution of the activity of execution in units of urban action and of participation in any other form in initiatives or in alternatives formulated by third party owners.
2. The sanctions referred to in the previous paragraph may be imposed for a maximum of two years. However, these accessory sanctions shall be ineffective if, before the expiry of the time limits provided for, the offenders voluntarily replace the altered physical reality or agree to the legalisation of the construction or use.
Determination and destination of fines
Article 176 Reductions of fines
1. If the fact constituting an infringement were to be legalized because it was not dissatisfied with urban planning, the corresponding sanction would be reduced by 95% if legalization had been requested within the period granted for this purpose; and by 80% if this legalization had been requested after this period but before the resolution ordering the re-establishment of the altered physical reality. However, these reductions may not be applied if the suspension order provided for in article 187 of this law has not been complied with.
2. The re-establishment of the altered physical reality before the resolution ordering it will cause the sanction to be reduced by 90%; and by 80%, if it is done after the resolution ordering the re-establishment but within the term granted to that effect. In the latter case, the corresponding amount will be refunded if it has already been paid.
Article 177 Valuation of works
1. When the sanction corresponding to an urban infraction involves a percentage of the valuation of the works, buildings or installations, it must take into account the value of the actions effectively carried out, calculated according to the sale value of the property in relation to others of similar characteristics and location.
2. If the aforementioned comparison is not possible, the valuation shall be made in accordance with the material execution cost of the building, documented by the offender or calculated by applying the tables and coefficients drawn up by any official association of qualified technical profession, or by means of another contrasted methodology.
3. Concepts referring to industrial profit, general expenses, taxes and professional fees shall not be included in the valuation of works.
4. In any case, the administration will fix the valuation with a prior technical report and will hear the interested person at the beginning of the sanctioning procedure.
Article 178 Destination of fines
1. The amount of the fine will correspond to the respective municipality, except when the insular council or any of the entities foreseen in article 15.5 of this law has initiated and resolved the sanctioning procedure, in which case the provisions of paragraph 4 of this article will be applied.
2. The amounts in concept of sanctions and coercive fines, once discounted the cost of the administrative activity, will be destined to any of the purposes that this law foresees for the income and resources derived from the management of the public patrimony of soil.
3. The cost of the administrative activity, for the purposes of the previous paragraph, will be determined in each administration by means of the corresponding technical-economic report on the financing of the services involved which, in any case, will cover the following expenses:
a) All those corresponding to personnel directly assigned to tasks of protection of urban legality.
b) Those caused by the maintenance of the means necessary for the activity of urban inspection.
c) Those derived from the execution of judicial resolutions in the matter of urban discipline, including the patrimonial responsibilities that are derived.
d) Those derived from the subsidiary execution of the recovery orders that are foreseen to be carried out in each fiscal year, unless it is also foreseen to send to the responsible person or persons a previous provisional liquidation for the amount of the foreseen execution cost.
e) Those originated by the registry inscriptions that legally have to be carried out, including those of requests of simple notes that are necessary to obtain them.
4. When the sanctions and coercive fines are imposed by the island councils or by the entities provided for in article 15.5 of this law, the following rules shall apply:
a) The amounts of the sanctions and coercive fines imposed in the exercise of the competences of sections 3, 4 and 5 of article 166 of this law, or by virtue of the delegation of competences foreseen in article 15.5 correspond to the island councils or to the entities of article 15.5 of this law.
b) The amounts collected by sanctions and coercive fines imposed, after deducting the cost of the administrative activity in accordance with paragraph 3 of this article, will be distributed among the municipalities as follows:
i. The amounts collected in the exercise of the powers provided for in Article 166(3), (4) and (5) of this Act shall be distributed among the municipalities on each island in proportion to the penalties and fines imposed on the territory of each municipality during the corresponding financial year(s).
ii. The amounts collected in the exercise of delegated powers shall be distributed only among the delegating municipalities in proportion to the sanctions and fines imposed on the territory of each delegating municipality during the corresponding exercise or exercises.
c) The municipalities will assign these amounts to any of the purposes that this law foresees for the income and resources derived from the management of the public patrimony of land.
d) The amounts paid by application of the tax provided for in articles 166.4.e) and 166.5.c) of this law, as well as the budgetary contributions that the island councils may allocate to support the administrative activity in matters of town planning discipline, will be affected to the financing of the expenses included in section 3 of this article.
e) When the sanctions and coercive fines are imposed by the entities provided for in article 15.5 of this law, the surplus or budget surplus that these entities may generate shall not be used either totally or partially to reduce the indebtedness of the parent administration, but shall be allocated to the municipalities in accordance with the rules of this section 4.
f) The regulations that develop this law or the statutes of the entities provided for in Article 15.5 may develop and complete the above rules. In particular, they may provide, as an exception to the provisions of section 4.b) of this article, that the amounts of the sanctions and coercive fines imposed in the exercise of the powers subrogated in sections 4 and 5 of article 166 of this law, once the cost of the administrative activity has been deducted, are allocated in full or in part only to the municipalities that have delegated their powers in matters of urban planning discipline, in accordance with the criteria set out.
Rules for the imposition of liability for sanctions and the application of sanctions
Article 179 Annulment of legitimate administrative act(s) as a presupposition of accountability
1.Without prejudice to the provisions of article 147 of this law, when the acts constituting an infringement are carried out under the protection of the mandatory approval or license or, as the case may be, by virtue of an execution order and in accordance with the respective conditions, an administrative sanction may not be imposed until the administrative title protecting them is annulled in each case, and provided that there is willful misconduct, guilt or gross negligence on the part of the persons concerned.
2. When the annulment is the consequence of the annulment of the planning or management instrument that they executed or applied, there shall be no sanction imposed on persons who have acted in accordance with said administrative acts, except those who have promoted the annulled instrument in the event of willful misconduct, negligence or gross negligence.
Article 180 Compatibility and independent nature of fines
1. Fines for infringements shall be imposed independently of the other measures provided for in this Act.
2. Fines imposed on the different persons responsible for the same urban infraction shall be independent of each other.
Article 181 Concurrent and continuous infringements
1. The person responsible for two or more offences under this Act shall be liable to penalties corresponding to each of them.
2. The sanctions provided for in this Act shall not preclude the imposition of sanctions provided for in other Acts for concurrent offences, unless these Acts provide otherwise.
The provisions of paragraph 1 of this article shall not apply to anyone who, in execution of a preconceived plan or taking advantage of the same occasion, performs a plurality of actions or omissions that infringe the same precept or precepts of the same or similar nature of this law. These cases will be sanctioned as a continuous infringement, with the sanction foreseen for the most serious infringement, which will be imposed in its upper half.
4. It shall also be appropriate to impose a single sanction, despite the existence of several concurrent urban infractions, when a single act constitutes two or more infractions, when one has been an essential means to commit the other, or when the commission of one necessarily derives from the other. In these cases, the sanction foreseen for the most serious infraction in its upper half shall be imposed, without it being able to exceed the one that represents the sum of those that would apply if the infractions were sanctioned separately. When, in application of this criterion, the sanction exceeds this limit, the infringements would be sanctioned separately.
Article 182 Exclusion of economic benefit
1. In no case can urban infractions bring economic benefit to those responsible. When the sum of the fine and the cost of the replacement of the physical reality altered to the state prior to the commission of the infringement gives a figure lower than said benefit, the amount of the fine shall be increased until it reaches the amount thereof.
2. In cases in which the restoration of the order infringed does not require material action, nor are there third parties harmed, the fine may not be less than the benefit obtained.
3. In illegal urban parcels, the amount of the fine, when it is less than 15% of the profit obtained, shall be increased until this amount is reached. In no case may it be less than the difference between the initial value and the sale value of the corresponding plots.
Article 183 Graduation of penalties
1. When in the procedure there are any aggravating or attenuating circumstances listed in the following two articles, the fine shall be imposed for an amount of the upper or lower half of the corresponding scale, respectively, this being fixed according to the weighting of the incidence of these circumstances in the overall assessment of the infringement. The same rules will be observed, depending on the case, when any or some of the mixed circumstances established in article 184 of this law concur.
If there are no aggravating or attenuating circumstances, the fine shall necessarily be imposed at the mid-point of the corresponding scale.
Pursuant to paragraph 1 of the eighth transitional provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this Act shall apply to proceedings already initiated and not yet resolved on the date of their entry into force, regardless of the date on which the alleged offence was committed.
Article 184 Aggravating, attenuating and mixed circumstances
1. Aggravating circumstances:
a) Prevalence, for the commission of the infraction, of the ownership of a public office or office, unless the fact constituting the same has been carried out, precisely, in the exercise of the functional duty proper to the office or office.
b) To commit the infraction by a person on whom a firm sanction has previously been imposed for any serious or very serious infractions of those established in the present law in the last eight years.
c) Execute works in buildings, constructions or installations in respect of which an order has been issued for the re-establishment of the altered physical reality not yet materialized, with knowledge of this circumstance.
d) Transmit to third parties, once the procedure has been initiated, the ownership of the real estate affected by the alleged infringement without expressly warning them of their situation.
e) Initiate the acts without written order of the technical personnel entitled director and the modifications in its execution without express instructions of this one.
f) Failure to observe the precautionary measures of suspension ordered on the occasion of the exercise of the power to protect urban legality and restore the disturbed legal order.
g) Obstructing the inspecting power of the administration, preventing or hindering access to the buildings, constructions or facilities of the inspectors, coercing them, denying them information or documentation, or in the cases of articles 162.2.d) and 162.3.c) of this law.
2. They will be extenuating circumstances:
a) Not intend to cause serious harm to affected public or private interests.
b) Reparate voluntarily the damage caused before the initiation of sanctioning proceedings.
c) Stopping works or ceasing activity or use, voluntarily, before the administration adopts the precautionary measure of suspension.
Circumstances that, according to each specific case, attenuate or aggravate liability:
a) The degree of knowledge of the legal regulations and technical rules of obligatory observance by reason of the trade, profession or habitual activity.
b) The benefit obtained from the infringement or, as the case may be, the commission thereof without considering the possible economic benefit.
The licenses or orders of execution incompatible with the urban planning
Article 185 Suspension and review of licences and enforcement orders
1. The competent body, ex officio or at the request of any person, as well as at the request of the island councils or the entities of article 15.5 of this law, shall order the suspension of the effectiveness of an urban planning licence or execution order and, consequently, the immediate paralysis of the acts that are still executed under its protection, when the content of these administrative acts constitute or manifestly legitimise any of the serious or very serious urban planning offences defined in this law. This precautionary measure shall be adopted at the start of the ex officio review procedure of the administrative act or, outside this case, by means of a reasoned resolution that appreciates the manifest, and serious or very serious, nature of the infringement.
2. The actions referred to in this article shall be independent of those of a sanctioning nature.
3. The administrative suspension of the effectiveness of the licences shall entail the suspension of the processing of those of occupation or of first use, and the suspension of the provision of the services which, provisionally, have been contracted with the supplying companies, to which this agreement shall be transferred.
4. The island councils and the entities provided for in Article 15.5 of this Law, when the act which manifestly constitutes or legitimises a serious or very serious urban infraction has been granted on land located in the classes of protected rustic land which fall under the direct disciplinary competence of the island councils in accordance with the provisions of Article 166.3 of this Law, shall require the ex officio review by the municipality or shall lodge an administrative appeal, in accordance with the provisions of letter g) of the same article and with the power to adopt the precautionary measures provided for therein.
5. Without prejudice to the provisions of the preceding paragraphs, the competent municipal body shall review planning permissions and execution orders, as well as any other administrative act provided for in this Act, the content of which constitutes or clearly enables any of the serious or very serious urban infractions that are defined, in accordance with what is established in the legislation regulating the legal system of public administrations and common administrative procedure. The procedures for review or declaration of injury shall be independent of those of a sanctioning nature.
Procedures in the field of urban discipline
Article 186 Relationship between proceedings
1. Any urban infraction shall give rise to two proceedings:
a) The procedure for re-establishing urban legality and altered physical reality.
b) The sanctioning procedure.
2. For the processing of these two procedures, the competent administration may:
a) Instruct and resolve jointly and simultaneously, with the possibility of grouping the following administrative acts:
i. A single initiating resolution that includes the initiation of the re-establishment procedure and the sanctioning procedure.
ii. A single motion for a resolution that includes the proposal for reinstatement and the proposal for a sanction.
iii. A single final resolution that includes the resolution of the re-establishment procedure and the resolution of the sanctioning procedure.
b) Initiate first the re-establishment procedure and then the sanctioning procedure.
The procedure for re-establishing urban legality and altered physical reality
Article 187 Precautionary measure of suspension
1. When an act of urban parcelling, urbanisation, construction or building and installation, or any other transformation or use of land, flight or subsoil that is subject to any approval or urban planning licence or prior communication, is carried out, executed or developed without these enabling titles or, where appropriate, without an execution order, or in contravention of the conditions, the competent administrative body shall order, in whole or in part as appropriate, the immediate suspension of the works or the cessation of the act or use in the course of execution, performance or development, as well as the supply of any public services. This measure shall be adopted when the concurrence of the foregoing circumstances is assessed, even prior to the commencement of the reinstatement procedure, and due proportionality shall be preserved between its effects and the circumstances and the nature of the alleged infringement.
2. The same shall apply:
a) When actions covered by prior notification are initiated or modified in the execution of works and it is established that they are subject to the system of licenses or authorizations.
b) When the modifications in the execution of the works cannot be object of the procedure foreseen in article 156.2 of the present law.
c) If alterations are detected in the determinations of the basic project, in accordance with those that granted the license, in the case of article 152.6 of the present law.
d) If the effectiveness of an urban planning license is suspended in the case of article 185 of this law.
e) In the case of article 149.4 of the present law.
3. The order of suspension may be notified, indistinctly, to the promoter, to the owner, to the responsible person or, if not, to any person who is in the place of execution, realization or development, and is related to it. Once 24 hours have elapsed since notification without the notified order having been complied with, the works, facilities or use may be sealed. In the event that no person related to the execution is present at the time of notification of the suspension order at the site of the works or uses, the personnel of the administration may place in a visible place an informative poster of the suspension, where the date and time in which the poster is hung shall be expressly stated and that the course of 24 hours from the time of the placement of the poster without the order having been complied with shall enable the sealing of the works, installations or uses.
The suspension order will be transferred to the companies that supply public services so that they interrupt these services within a maximum period of 24 hours.
4. The order of suspension shall remain in force throughout the entire procedure of reinstatement, or, as the case may be, as long as the acts that motivated it are not legalized or the physical reality altered to the original state is not restored.
5. When precautionary measures are ordered before the re-establishment procedure begins, they shall be confirmed, modified or lifted in the act initiating the same, which shall be issued within fifteen days from the date on which the measures are decided. The measures shall lapse if either of the above conditions is not complied with.
6. Failure to comply with the suspension order shall have the following consequences:
a) When the notified suspension order is not complied with, the withdrawal and deposit of the machinery and materials of the works, installations or uses may be ordered, and the resulting expenses shall be borne by the person promoting, owning or responsible for the act.
b) Non-compliance with the suspension order, including that which is transferred to the companies supplying public services, will give rise, for as long as it persists, to the imposition of successive coercive fines for minimum periods of ten days and the amount, on each occasion, of 10% of the value of the works executed and, in any case and as a minimum, of 600 euros. In these cases, the coercive fines shall be reiterated with a maximum periodicity of one month, in the case of the first three, and fifteen days, in the case of subsequent fines.
c) The non-compliance shall be communicated, where appropriate, to the Public Prosecutor’s Office, for the purpose of demanding the corresponding liability.
Article 188 Commencement of reinstatement proceedings
1. Once the precautionary suspension measure has been adopted, or at the same time as it has been adopted, the competent administration shall initiate the reinstatement procedure. In the cases of article 187.2.c) and d) of this law, the procedures foreseen respectively will be followed.
2. The act of initiation shall include the following minimum content:
a) Describe the acts carried out, executed or developed without a license, or that contravene the conditions.
b) Identify the persons or entities presumably responsible for the urban infraction.
c) Adopt the pertinent precautionary measures and the pronouncements of article 187.5 of this law with respect to those already ordered. It shall also indicate the corresponding appeal with regard to the precautionary measures adopted or confirmed.
d) Require that within two months the persons or entities presumably responsible for the urban infraction apply for the corresponding qualification. In the event that the works, constructions, installations, uses or buildings are manifestly illegalizable, the carrying out of the requirement may be dispensed with; in this case, it must be indicated and motivated that the acts are manifestly incompatible with urban planning and the regulations that determine it must be indicated.
e) Determine the competent body to resolve the procedure and the maximum period to do so.
f) Appoint the instructor and, if appropriate, the secretary of the procedure, appointed from among the civil servants of the administration acting.
g) Indicate the right to formulate allegations and to the hearing in the procedure within fifteen days, with the warning that if this is not done, the initial resolution may be considered directly as a proposal for resolution.
h) Practice the preventive annotation in the Property Registry of the opening of the file, when it is obligatory, according to the applicable regulations.
Pursuant to section 7 of the eighth transitory provision, articles 186, 188.2, 190.2 and 191.2 of this law shall apply to all proceedings commenced as from its entry into force, regardless of the date on which the alleged infringement was committed.
3. The administrative act initiating the re-establishment procedure shall be notified to all interested persons and to those who denounced the facts constituting the urban infraction.
4. Cuando, de conformidad con la ley, la notificación prevista en el punto anterior se efectúe por medio de un anuncio en el boletín oficial correspondiente, se podrá complementar con la publicación del acto administrativo en la sede electrónica de la administración actuante o con la colocación de carteles informativos en el lugar de las obras.
Artículo 189 Legalización de actos o de usos ilegales
4. Where, in accordance with the law, the notification provided for in the preceding point is effected by means of an announcement in the relevant official gazette, it may be supplemented by the publication of the administrative act on the electronic site of the administration acting or by the posting of information notices on the site of the works.
Article 189 Legalization of illegal acts or uses
1. The persons responsible for the illegal acts or uses will always be obliged to replace the altered physical reality, or to urge its legalization within two months from the request made by the administration.
2. The obligations to replace and legalize shall be transferred to the third parties acquiring or succeeding the persons responsible, who shall be subrogated in the same position as the latter, without prejudice to any civil actions they may exercise between themselves.
3. If a licence is requested for the legalisation of acts which are the subject of an urban infraction file which is being investigated or has already been resolved by an administration other than the municipal administration, the licence application cannot be resolved without the municipality having previously requested from that administration the issue of a report, which shall be governed by the following rules:
a) The council shall attach a copy of the legalisation project to the request for a report.
b) The purpose of the report shall be to ascertain whether the acts or uses which are the object of the application for legalisation cover all of those which are the object of the urban development infringement file, and in this sense the report shall be binding on the local council.
c) The report may also include observations on compliance with territorial or urban planning regulations of a supramunicipal nature, especially on the regime of existing buildings and the regime of out of planning. Failure to comply with these observations may result in the issuing administration requiring the council to review ex officio the resolution granting the license or directly challenge it before the administrative contentious jurisdiction.
d) The issuing administration will have a period of one month to issue and communicate the report, after which, without having received it, the council may continue with the processing of the procedure, without prejudice to the fact that its content must be taken into account if it is received before the resolution of the licence application.
e) If during the processing of the application for the legalisation licence, and once the report has been issued, the project is modified in any way that could affect the legalisation of the urban development infringement, the council will have to request the report again.
4. In the event that the urban regularisation of a property unit jointly requires a licence for the legalisation of certain works or uses and the restoration of other works or uses to their previous state, a single project may be submitted to the municipality which jointly includes legalisation and demolition or restoration. The part of the project that includes the demolition or restoration will follow the simplified procedure provided for in Article 193.1 of this law, so that, after the periods established without communication to the contrary by the administration, the demolition or restoration work will begin, for which the non-extendable period established in the file of urban infraction will be available. The municipality may not grant the legalization license until it has verified the previous material execution of the demolitions or restorations provided for in the single project.
As an alternative to what is established in the previous paragraph, the demolition or restoration project may be presented first, following the simplified procedure of article 193.1 of this law, and once the works have been carried out, request the legalisation licence for the rest of the works or uses to be regularised.
Article 190 Actions of urbanization or building manifestly incompatible with urban planning
1. The competent administration shall order the immediate demolition or re-establishment of acts that are manifestly incompatible with urban planning when they consist of actions of urbanization or building.
2. To this effect, once the start of the re-establishment procedure has been notified, which shall not include the requirement that within a maximum period of two months the persons or entities presumably responsible for the urban infraction request the corresponding enabling title, and once the process of allegations and hearing has been evacuated, the demolition or re-establishment order shall be issued and notified within a maximum period of one year, starting from the date of the starting resolution, after which the re-establishment procedure shall lapse.
Pursuant to section 7 of the eighth transitory provision, articles 186, 188.2, 190.2 and 191.2 of this law shall apply to all proceedings commenced as from its entry into force, regardless of the date on which the alleged infringement was committed.
Article 191 Proposal to restore the altered physical reality
1. Without prejudice to the provisions of the preceding article, the person conducting the procedure shall formulate the proposal for the restoration of the altered physical reality when:
a) The legalization has been requested, with suspension of the term to resolve the procedure of reinstatement, but this term has been resumed because any of the circumstances of article 195.2.b) of the present law other than the express or presumed concession of the legalization license have occurred.
In accordance with section 10 of the eighth transitory provision, article 191.1.a) of this law shall apply to all applications for legalization that are submitted as from its entry into force and to those that are not expressly resolved on the date of their entry.
b) Legalization has not been requested within the period granted for this purpose.
2. The proposal for reinstatement shall be notified to the persons concerned, so that within ten days they may formulate the arguments they deem appropriate and may consult the documentation contained in the file. However, if these persons have not made allegations to the initial decision, the investigating person may not grant the mentioned period and transfer the proposal directly to the competent body to decide to issue the decision that ends the procedure, provided that the description of the acts subject to reinstatement that appears in the initial decision has not changed.
Pursuant to paragraph 7 of the eighth transitional provision, articles 186, 188.2, 190.2 and 191.2 of this Act shall apply to all proceedings commencing after its entry into force, irrespective of the date on which the alleged infringement was committed.
3. When a proposal for restoration does not have to be made because the works have been legalized, the maximum period for ordering the corresponding restitution measures has elapsed, or another circumstance occurs that leaves the procedure without object, the act resolving it shall be pronounced with respect to the precautionary measures adopted, the registry entries that have been made and the out-of-planning situation in which the constructions, buildings, installations or uses may remain.
Article 192 Order of restoration of altered physical reality
1. Once the period for making representations on the proposal for reinstatement has elapsed without them being made or when they are dismissed, the competent administration shall issue the order for reinstatement of the altered physical reality.
2. The order for restoration shall provide for the demolition or reconstruction of works constituting an urban infringement, the return of the land to its previous state, and the definitive cessation of the acts and uses developed and of any public services.
3. The resolution of the procedure shall include the period for executing the order for restoration and the consequences of non-compliance. The aforementioned period shall include the period for the execution of the material tasks indicated in the proposal for restoration and the period available to the interested party for submitting the restoration project to the local council, which may not exceed two months.
4. The administrative act that adopts the order of restoration shall be notified to all the interested persons and to those who denounced the facts constituting the urban infraction.
Article 193 Voluntary restoration of altered physical reality
1. As an exception to the general rule established in article 146.1.f) of this law, the demolition or re-establishment of constructions, buildings or uses which are the object of a re-establishment order already issued or of a re-establishment procedure already initiated shall not be subject to the prior obtaining of an urban planning permission, but to the following procedure:
a) The restoration project will receive a prior visa from the corresponding professional association if it includes demolition work on buildings, in accordance with the provisions of Article 2.d) of Royal Decree 1000/2010, of 5 August, on compulsory school visa.
b) The restoration project will be presented to the council, together with the documentation that the municipal urban planning may require to this type of projects. Once the complete documentation is submitted, the council will have a period of one month to check whether the project contains all the documentation and information that the current regulations require of a restoration project. In any case, the council will not request any report or sectoral authorization to other administrations or public bodies, given that the project will have as its sole purpose to restore things to a pre-existing state.
Once this period has elapsed without the competent municipal body notifying the interested party of a resolution to the contrary, the period of execution of the restoration work appearing in the restoration order, or appearing in the resolution initiating the restoration procedure, will begin to run if the project was presented during the processing of this procedure but before the restoration order is issued. If the municipal body detects, after a period of one month, that the project does not contain all the required documentation and information, the council will order the immediate stoppage of the works and will require the presentation of a new project that has remedied the breaches detected.
c) The municipalities may establish the collection of a fee for the administrative tasks generated by the processing of the restoration project, especially for issuing the necessary reports to ascertain whether the project contains all the documentation and information required by the applicable regulations.
d) In the event that the restoration order has been issued or the restoration procedure has been initiated by an administration other than the municipal administration, once the restoration project has been drawn up and, where appropriate, endorsed, and before submitting it to the municipal council, the interested party shall request from that administration the issue of a report, which shall be governed by the following rules:
i. A copy of the project shall be attached to the request for a report.
ii. The purpose of the report shall be to ascertain whether the acts or uses that the project is intended to re-establish cover all of those that are the object of the urban infraction file.
iii. The issuing administration will have a period of one month to issue and notify the report, after which, without having received it, the interested person may already present the project to the Town Hall.
iv. The issuing administration shall notify the report to the applicant and also to the council for its knowledge.
2. When the urban infraction consists of the realization without the obligatory authorizing urban title of:
i. The demolition of an existing construction, building or installation and the erection of another.
ii. The integral reform of a construction, building or installation.
iii. The implementation of a new use different from the pre-existing one.
If the pre-existing construction, building, installation or use is in an out-of-order situation, in accordance with the provisions of article 129.2 of this law, the re-establishment of the altered physical reality in no case may lead to the recovery of the pre-existing construction, building, installation or use. All of this without prejudice to the fact that current regulations on out-of-order, inadequate or existing buildings may imply other cases in which the pre-existing situation cannot be recovered.
As established in section 1 of the eighth transitory provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved at the date of its entry into force, regardless of the date on which the alleged infringement was committed.
Article 194 Failure to comply with the order to restore the altered physical reality
1. Non-compliance, once they are firm, with orders to restore physical reality to the previous state shall give rise, for the duration thereof, to the imposition of up to twelve coercive fines with a minimum periodicity of one month and with an amount, on each occasion, of 10% of the value of the works carried out and, in any case, at least 600 euros. In these cases, the coercive fines will be reiterated with a maximum periodicity of three months, in the case of the first three, and two months, in the case of subsequent ones.
2. At any time, once the period of time indicated in the resolution of the re-establishment procedure for the interested person to voluntarily comply with the order has elapsed, its subsidiary execution may be carried out at the expense of the order; execution that shall proceed, in any case, once the period derived from the twelfth coercive fine has elapsed.
3. The island regulations implementing this law shall regulate the procedure of subsidiary execution of the reinstatement order.
4. A maximum term of 15 years shall be established for the subsidiary execution of the reinstatement order by the administration. This period shall begin on the day on which the resolution ordering the reinstatement acquires firmness, and shall be interrupted by any formal administrative act leading to the execution of the order. The imposition of coercive fines or the resolution to initiate the subsidiary enforcement procedure are considered administrative acts aimed at the execution of the reinstatement order. Once the interruption has taken place, the 15-year period mentioned above will begin again.
Pursuant to paragraph 12 of the eighth transitional provision, article 194.4 of this Act shall apply to all reinstatement orders not executed on the date of its entry into force.
Article 195 Expiry of reinstatement proceedings
1. The maximum time limit for notifying the express decision in the reinstatement procedure shall be one year from the date of initiation.
2. The expiry period of the reinstatement procedure shall be suspended, in addition to the cases of optional and mandatory suspension established in the basic state regulations governing the common administrative procedure:
a) The period of two months to apply for the legalization license.
b) The presentation of the application for the legalisation licence before the Town Hall. The expiry period shall be suspended from the date of presentation and until the council expressly resolves this application or administrative silence occurs. However, in the event that the reinstatement procedure is conducted by an administration other than the municipal one, the suspension shall commence on the day on which the interested person or the municipality notifies him/her that the application has been submitted, and shall be lifted on the day on which any of the following circumstances occur:
i. The person applying for the licence or the municipality formally informs the investigating administration of the express resolution of the application for legalisation.
ii. The municipality expressly informs the investigating administration that the corresponding administrative silence has occurred, deriving from the failure to respond to the request within the legally established period.
iii. 6 months elapse from the date of commencement of the suspension without either of the two previous circumstances having taken place and without the municipality having informed the investigating administration which legal reasons prevent the request from being expressly resolved and which legal reasons prevent the administrative silence from being produced.
c) The presentation of the restoration project to the municipality. The expiry period shall be suspended from the date of presentation until the date of expiry of the non-renewable period for carrying out the reinstatement contained in the resolution initiating the reinstatement procedure.
d) The request for the report provided for in article 193.1.d) of this law. The expiration period shall be suspended from the date of presentation of the report request and during the period of one month established for its issuance and notification. If the notification takes place before the expiry of this period, the expiry period shall resume on the date of the notification.
Pursuant to paragraph 1 of the eighth transitional provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this Act shall apply to proceedings already initiated and not yet resolved on the date of its entry into force, regardless of the date on which the alleged infringement was committed.
Article 196 Maximum period for initiating the reinstatement procedure
1. The reinstatement procedure may only be validly commenced while the acts are in the course of execution, completion or development and within eight years of their complete completion, and provided that before the expiry of this period the notification of the decision to commence the procedure to the persons concerned has been legally notified or attempted.
Pursuant to paragraph 13 of the eighth transitional provision, article 196.1 of this law shall apply to all planning offences for which, at the date of entry into force of this law, eight years have not yet passed since the total completion of the acts on which they are based.
2. The action to initiate the procedure for reinstatement shall not be statute-barred in the case in question:
a) Of illegal or not admitted acts or uses, that at the moment of executing them are in lands that have the classification of rustic land.
b) Of illegal or inadmissible acts or uses that affect property or spaces catalogued in municipal planning or declared of cultural interest or catalogued, parks, gardens, open spaces, public infrastructures or other reserves for endowments.
3. The period shall be calculated from the day on which the acts are definitively completed. To this effect, the work shall be understood to be completely finished when it is so faithfully accredited, with criteria of objectivity and rigour, unquestionably and with certainty and accuracy, by any means of proof, the burden of which shall fall on the pleader.
4. Acts of use or changes of use of buildings without the corresponding license shall be of a permanent nature. The calculation of the term shall begin from the date on which the illegal activity or use ceases.
5. In the case of acts made under the protection of approval, compulsory license or order of execution, the term shall start to run from the moment the administrative title that protects them is annulled.
The sanctioning procedure
Article 197 Procedure for exercising sanctioning power
1. The sanctioning power shall be exercised by observing the procedure established for this purpose by the basic state regulations and by the autonomous regulations on sanctioning procedure.
2. The maximum period in which the express resolution of the sanctioning procedure shall be notified shall be one year from the date of the initiation agreement.
3. Disciplinary authority shall be exercised by observing the procedure established in the legislation regulating the civil service.
4. For the purposes of requiring the disciplinary responsibility of incumbent persons, members of administrative bodies and the civil service, the determination of the type of offence and the amount of the sanction shall be that provided for in each case in this law.
Article 198 Requirement of legalization and sanctioning procedure
Appreciating the alleged commission of an urban infraction defined in this law will lead to the initiation, instruction and resolution of the corresponding sanctioning procedure, whether or not the acts or uses objects of this law can be legalized.
Article 199 Suspension of the sanctioning procedure
In the event that the sanctioning procedure is carried out simultaneously with the re-establishment procedure, the cases of suspension of the expiry of the re-establishment procedure established in article 195.2 of this law shall also be cases of suspension of the expiry of the sanctioning procedure.
Article 200 Concurrence with criminal offense
1. In cases where there is evidence of criminal wrongdoing in the acts that give rise to the initiation of the sanctioning procedure, the administration competent to impose the sanction shall inform the public prosecutor, and shall suspend the instruction of the sanctioning procedure until the competent authority pronounces itself. The period of expiry of the sanctioning procedure shall be suspended from the date of entry into the public prosecutor’s office of the communication until the competent authority formally communicates its pronouncement to the administration.
2. The procedure shall also be suspended as soon as the administrative body has knowledge of the substance of criminal proceedings for this fact. In this case, the expiry period of the sanctioning procedure shall be suspended from the date on which the administration receives official documentation accrediting that criminal proceedings are taking place until the date of communication to the administration of the final pronouncement putting an end to these proceedings.
3. The transfer and suspension shall be agreed upon by the competent body to initiate the sanctioning procedure, at the duly motivated proposal of the person conducting the proceedings.
4. The suspension provided for in paragraphs 1 and 2 of this Article shall not affect the precautionary measures adopted, shall not prevent the issuing of new measures, nor shall it entail the suspension of the procedure for reinstatement or of the measures for reinstatement of the altered physical reality to be adopted in relation to these facts.
5. In any case, the facts declared proven by a final judicial resolution shall be binding for the sanctioning proceedings that take place.
Pursuant to paragraph 1 of the eighth transitional provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this Act shall apply to proceedings already initiated and not yet resolved at the date of its entry into force, irrespective of the date on which the alleged infringement was committed.
Article 201 Impact of registration fees on public registries
The administration costs for mandatory entries in public registers arising from the urban infraction will be passed on to offenders. This repercussion may be included in the resolution that puts an end to the sanctioning procedure or it may be established in a separate procedure. In the event that there are several offenders, the repercussion will be divided among them in equal parts.
Article 202 Reductions of sanctions
The fines provided for in this law shall be subject to the following reductions, which shall be compatible and cumulative with those provided for in Article 176 of this law:
a) If, once the sanctioning procedure has been initiated and before its resolution, the offender expressly acknowledges his responsibility and expressly waives or renounces any action or administrative appeal against the sanction, the procedure shall be resolved for this person and the corresponding sanction shall be imposed with a reduction of the fine of 20%.
(b) If, once the sanctioning procedure has been initiated and before its resolution, the offender expressly acknowledges his responsibility, expressly waives or renounces any action or administrative remedy against the sanction and voluntarily pays the fine indicated in the initial resolution or subsequently in the proposed resolution, a reduction of 40% of the fine shall be applied, so that the advance payment shall be 60% of the fine indicated.
Pursuant to paragraph 1 of the eighth transitory provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved at the date of its entry into force, regardless of the date on which the alleged infringement was committed.
Article 203 Collection of fines
1. Offenders shall pay fines within a maximum period of thirty days from the day following the date on which the decision becomes enforceable for not being able to lodge an ordinary administrative appeal against it. At the end of this period without the voluntary payment of the sanction having taken place, and once the sanction has become firm in the administrative channel, the administration will collect it by means of enforcement.
Pursuant to section 1 of the eighth transitory provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved on the date of its entry into force, regardless of the date on which the alleged infringement was committed.
2. In order to ensure the collection of fines, the body competent to initiate the sanctioning procedure may apply in all its terms the regime of provisional measures regulated in article 56 of Law 39/2015, of 1 October, of the common administrative procedure of public administrations. The decision terminating the sanctioning procedure may also include precautionary measures to guarantee its effectiveness until it becomes enforceable, which may consist of maintaining the provisional measures previously adopted.
Pursuant to paragraph 1 of the eighth transitional provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved on the date of its entry into force, regardless of the date on which the alleged infringement was committed.
3. In order to obtain the collection of fines for urban infractions, the administrative bodies in charge of the processing of the sanctioning procedure and of the collection shall have the powers for the tax administration provided for in Articles 93 to 95 of General Tax Law 58/2003, of 17 December, in the same terms and with the same limits as those established in these precepts.
In accordance with section 14 of the eighth transitory provision, article 203.3 of this law will be applied to all fines for urban infraction not yet fully collected at the date of its entry into force.
Article 204 Publicity of sanctioning resolutions
Firm sanctioning resolutions in administrative via for serious or very serious urban infractions will be published on the website of the resolutory administration, with mention of the sanctions imposed, the subjects responsible, the infractions committed and possible measures to restore the altered physical reality that have been adopted as a result of the infraction.
In accordance with section 1 of the eighth transitory provision, articles 162, 183.2, 193.2, 195.2, 200, 202, 203.1, 203.2 and 204 of this law shall apply to proceedings already initiated and not yet resolved on the date of its entry into force, regardless of the date on which the alleged infringement was committed.
Article 205 Limitation of offences and penalties
1. Limitation of infringements:
a) Serious and very serious urban infractions shall be statute-barred at the age of eight years and minor infractions shall be statute-barred at the age of one year. This is without prejudice to the possibility of adopting, at any time, measures to restore the altered physical reality in the cases set out in article 196.2 of this law.
b) The statute of limitations for urban infractions shall be calculated from the day on which the acts constituting the infraction end definitively. For this purpose, the work shall be understood to be completely finished when it is reliably accredited, with criteria of objectivity and rigour, undoubtedly and with certainty and accuracy, by any means of proof, and in any case, the burden of this on whoever alleges it.
c) Urban infractions consisting of acts of use or changes of use of buildings without the corresponding license shall be of a permanent nature. The calculation of the limitation period shall commence from the date on which the illegal activity or use ceases.
d) In the case of acts constituting an urban infraction that are made under the protection of approval, compulsory license or order of execution, the limitation period will begin to compute from the time the administrative title that protects them is annulled.
2. Prescription of sanctions:
a) Sanctions shall be statute-barred after four years, counting from the day following the day on which the decision imposing the sanction becomes final.
b) The computation and interruption of the statute of limitations period of the administration’s right to demand, by way of enforcement, the payment of penalties consisting of a fine shall be governed by the provisions of tax law.
First additional provision Follow-up report on urban implementation activity
Municipalities with a population of more than 5,000 inhabitants shall submit, every four years, to the corresponding body among their collegiate government bodies, the report on the monitoring of urban execution activity referred to in state legislation, with respect to the activity carried out within the scope of its competence.
For the purposes of this provision, urban execution activity under municipal jurisdiction shall be understood as that which is promoted by the municipality through direct or indirect management and, in any case, when plans are executed, regardless of the person promoting them.
Once the report referred to in this provision has been approved, it will be given telematic publicity by inserting it in the address or in the electronic access point of the municipality, and it will also be transferred to the corresponding insular council and to the Town Planning Archive of the Balearic Islands.
Second additional provision Standardisation and normalisation of urban planning instruments
The Government of the Balearic Islands, in collaboration with island councils and town councils:
a) Establish the criteria for standardisation and standardisation of urban planning, management and execution instruments, in order to facilitate their interoperability, as well as the possible future implementation of the telematic processing.
b) Promote an integrated information system on urbanism and land that will include, among others, the instruments of urban planning, management and implementation in force, and seek compatibility with other information systems and, in particular, with the urban information system provided for in state legislation.
Third additional provision Mobility studies of large mobility generating centres
1. The mobility studies of the large generating centres will be the mobility assessment instruments which will aim to define the measures and actions necessary to ensure that the mobility needs generated by certain urban developments will be met in accordance with the principles of sectoral transport legislation. The person promoting the action will be responsible for drawing up this study.
The report issued by the Commission for Coordination of Territorial Policy, in accordance with the aforementioned Law of territorial planning, will pay special attention to the consequences and derivations of any order, which involve the special differential facts that, within the framework of the autonomous community, treasures Formentera, such as the specific insularity of the territory and the legal-administrative regime of the island itself. It corresponds, in any case, to the plenary of the island council the initial and final approval of this instrument.
3. The processing of urban planning instruments in development of what provides for the Territorial Plan of Formentera will conform to what this law says.
Corresponds in any case to the full island council the final approval of these instruments, and will be established by regulation the competent bodies for the issuance of the report prior to final approval of the first formulation, review or amendments to the instruments of territorial and urban planning of Formentera.
4. All instruments, whether land-use planning, ja are urban, need to have the corresponding environmental procedures in accordance with environmental legislation.
5. The Island Council of Formentera is empowered, through the approval of the general regulation of development of this law that provides the first final provision, to make the necessary adaptations and articulation of functions that this law attributes to municipalities to specify the allocation of powers in the different phases of approval of urban planning instruments and for other matters and functions that, by the uniqueness of the regime of the island of Formentera, so require.
6. In any case, the powers of the Island Council of Formentera include both those that correspond to it as a council and those that correspond to it as an island council, and both will be exercised in a necessary and successive manner, in line with the provisions of the third transitory provision of Law 6/2007 of 27 December on tax and economic-administrative measures, which approved the urgent measures of government, administration and legal system of the municipality and the island of Formentera.
7. Settlements in rural areas contemplated in the Plan Territorial Insular de Formentera to the approval of this law, will be regulated by the provisions of that instrument. The nuclei that can be delimited, if any, must be governed by the provisions of this law.
8. The regime of existing buildings on rustic land determined in the Plan Territorial Insular de Formentera prevail over other implementing legislation, in accordance with the territorial model of the island itself.
Additional Provision Seventh Amendment of Article 13 of Law 12/2016 of August 17, environmental assessment of the Balearic Islands
The title of article 13 of Law 12/2016 of 17 August on the environmental assessment of the Balearic Islands is amended and worded as follows:
Particularity of the strategic environmental evaluation of the precautionary territorial norms and of the provisional planning norms”.
A new point 4 is added, worded as follows:
“4. Everything in this Article shall also apply to provisional planning rules.”
Additional Provision Eight Actions on plots or plots affected by the execution of public works
1. In cases where, as a consequence of the execution of a public work involving the expropriation of land, a building or installation legally implanted on land classified as rustic has to be demolished in whole or in part, prior processing of the corresponding procedure, reconstruction may be authorised within the remaining part of the same plot despite the fact that it does not comply with the minimum surface area parameter established by municipal legislation and urban planning, provided that all the following requirements are met:
a) That the reconstruction of the elements is located outside the public domain and areas of servitude or assimilated that regulate the sectoral legislation in accordance with which the public work has been executed.
b) That it is not located in a protected rustic land classification, except in the case that it is a territorial protection area of roads or railways whose execution has involved the total or partial demolition of the building or the installation; nor is it located in land object of protection by the historical heritage legislation or by the catalogue of elements and protected spaces of the planning.
c) That it is possible to apply the determinations on setbacks of limits of the building or installation established by the urban planning; that the same use is maintained for the new building or installation or the part object of reconstruction that it had and that the volume, the surface and the occupation do not exceed in any case the previous parameters of the demolished element or the part object of demolition.
2. Likewise, in the parcels of rustic land or urban land that, as a consequence of the execution of a public work that involves the expropriation of land, are in a situation of non-compliance with the requirement of surface or minimum façade determined by the applicable urban planning, and after processing the corresponding procedure, may authorize the uses, buildings or facilities allowed by the planning and legislation, despite the fact that the plot or plot do not meet the requirements of surface or façade mentioned, provided that the requirements provided for in points 1 are met.a) and 1.b) above, if appropriate to be a plot of rustic land, as well as all other requirements determined by law and planning in force. In any case, these authorizations will be subject to the express request of the owner within a maximum period of one year from the date of the certificate of land occupation corresponding to the area of the plot or plot that has been expropriated.
Ninth additional provision Urban planning of the campus of the University of the Balearic Islands and the Balearic Park of Technological Innovation
1. The urban development of the campus of the University of the Balearic Islands will be carried out by the General Development Plan of the municipality of Palma, which may provide for detailed development through a special plan to be processed and approved in accordance with the provisions of the urban development legislation, without prejudice that may be formulated by the University.
2. The urban planning of the land resulting from the application of Law 2 / 1993 of March 30, creating the Balearic Park of Technological Innovation, will be carried out by the General Development Plan of the municipality of Palma, which may provide for detailed planning through a special plan to be processed and approved in accordance with the provisions of urban legislation, without prejudice to what may be formulated by the Government of the Balearic Islands.
Tenth Additional Provision Commission of Valuations of Expropriation of the Balearic Islands
All references made by the sectorial regulations of the Autonomous Community of the Balearic Islands to the Provincial Jury of Expropriation shall be understood to be made to the Commission of Expropriation Valuations of the Balearic Islands.
Eleventh additional provision Urban planning valuations
1. For the exclusive purpose of determining the use and buildability of reference of urbanized land that has not been assigned edificability or lucrative use by urban planning, shall be considered as a homogeneous spatial area:
a) In those cases in which this land is delimited, because it comes from a partial planning or is inserted in a unit of action, the spatial scope will coincide with that of these delimitations.
b) In the remaining cases, the spatial scope will be that of the urban areas of lucrative uses bordering this land and if all of them were of nonprofit use, the scope would cover the urban areas of lucrative uses bordering with these.
2. For the sole purpose of the referral made by Article 5.3 of Royal Decree 1492/2011 of 24 October, which approves the Regulation of Valuations of the Land Law, with respect to the definition of the concept of physical ruin makes the regional urban legislation, will establish that a building or part of it is in physical ruin when, regardless of that there is no administrative file corresponding to the declaration of ruin, is manifestly uninhabitable by being demolished or semi demolished.
Twelfth additional provision Modification of the second transitory provision of Law 6/1997, of 8 July, on rustic land in the Balearic Islands.
Point 2 of the second transitory provision of Law 6/1997, of 8 July, on rustic land in the Balearic Islands is hereby modified and worded as follows:
“Existing dwellings on rustic land, legally implanted in accordance with the urban planning applicable at the time of authorisation, but which do not conform to the determinations on the minimum plot parameter in accordance with the legislation and the planning of territorial and urban planning in force, may not be the object of actions involving their extension.
Thirteenth additional provision Addition of a new transitional provision to Law 11/2014 of 15 October on trade in the Balearic Islands
A new transitory provision is added to Law 11/2014, of 15 October, on trade in the Balearic Islands, with the following wording:
“Fourth transitional provision
1. As long as the procedure for granting the authorisations regulated in Article 13 is not carried out in accordance with the regulations, the application initiating the procedure shall be accompanied, without prejudice to the provisions of Article 14, by the following documentation:
a) The technical project of the activity, together with a descriptive report referring to the characteristics of the establishment, its location and the distribution of the useful commercial surface, which shall be accompanied by general plans and the documentation required for the authorisation of the activity in accordance with Law 7/2013, of 26 November, on the legal regime for the installation, access and exercise of activities in the Balearic Islands.
b) Report of the competent council in which it is accredited that the projected establishment will be located in a plot with urban land classification in accordance with municipal urban planning, as well as the condition of plot.
c) Document accrediting the payment of the amount of the corresponding fee.
d) Any other established by law and regulation.
2. The instruction of the procedure will include, at least, the following procedures:
a) Favourable report of the competent town hall on the installation and works of the establishment. This report shall have the content and consideration of the enabling title of the installation and of the works for the purposes of Law 7/2013, of 26 November, on the legal regime for installation, access and exercise of activities in the Balearic Islands, already mentioned.
b) Favourable report from the competent town hall on the impact of the project on municipal infrastructures and public services.
c) Favourable report from the competent island council on the impact of the project on supra-municipal infrastructures and public services.
The procedure shall be suspended until receipt of the report referred to in point (a) above.
The reports referred to in points (b) and (c) above may make their favourable nature conditional on the adoption of measures to compensate for the negative externalities generated by the establishment or extension of a large commercial establishment.
3. The procedure shall be terminated by a reasoned decision issued by the competent trade adviser. Once the resolution has been notified, the competent town council shall deliver to the interested person the informative poster foreseen in the works in the urban planning regulations.
4. In the event that the maximum time limits for starting and completing the construction work on the establishment have been exceeded, the expiry date of the enabling certificate shall be determined by the competent town council following the procedures provided for in the applicable planning regulations. The expiry declared by the town hall will determine, by means of a reasoned resolution of the competent councillor in matters of commerce, the expiry of the commercial licence.
5. Once the work has been carried out on the installation, the opening of the establishment will proceed in accordance with the aforementioned Law 7/2013, of 26 November.
6. In the terms to be determined by regulation may authorize extensions of the useful area of display and sale of large commercial establishments, provided that they do not, in any case, increase the built-up area.
Fourteenth additional provision Modification of point 1(b) of Article 44 of Law 8/2012 of 19 July on tourism in the Balearic Islands
Article 44(1)(b) of Law No 8/2012 of 19 July on tourism in the Balearic Islands is hereby amended as follows:
“(b) Agroturismos: establishments providing tourist accommodation services located in buildings built before 1 January 1960, located on rustic land and on a farm or estates with a minimum surface area of 21 000 m2 and constituting a preferential agricultural, livestock or forestry operation.
Additional Provision Fifteenth Modification of the Definition of the activities regulated in the matrix of rustic land management, referring to the Facilities, which appear in Annex I of Law 6/1999, of 3 April, of the Guidelines for Territorial Planning of the Balearic Islands and of Tax Measures.
Section D) 2 of the Definition of the activities regulated in the rustic land management matrix, referring to Equipment, which appears in Annex I of Law 6/1999, of 3 April, of the Balearic Islands Territorial Planning Guidelines and Tax Measures, is modified and is worded as follows:
It consists of the transformation of the characteristics of a space to allow the realization of an activity, or for installations and constructions of new plant destined to the activities of leisure, recreational, scientific, cultural, commercial and of storage, educational, social-assistance, and to the tourism of certain dimension that, by their characteristics, necessarily have to be located in rustic ground.
These include, for example, campsites, pet shelters, zoos or sports circuits.
Shelters for domestic animals and/or pets at risk, mistreated or in a situation of abandonment are equipment of permitted use of up to 70 units, of which a maximum of 20 may be dogs. In any case, domestic animals and/or pets will not be considered as shelters when the animals are destined for sports, lucrative, recreational or leisure activities”.
Sixteenth additional provision Measures to declassify untransformed urban development land
Upon the entry into force of this law, in the territorial scope of the island of Mallorca, will be automatically classified as rustic land with common rustic soil qualification, land of any use that, in planning instruments not adapted to the Guidelines for territorial planning are in any of the following situations:
1. Land classified as developable land not programmed by a general urban planning plan valid for more than eight years.
2. Land classified as scheduled land for development or as land suitable for development that, failing to meet the deadlines established in the respective general planning, are not processing the corresponding partial planning. In the event that the general planning had not provided deadlines, it shall be understood that these deadlines are not met when eight years have elapsed since the validity of the general planning provided for the respective polygon or sector.
3. Land classified as land for development or suitable for urbanization that, despite having partial planning definitely approved, are not processing the corresponding development project, in the periods provided for by the general planning or partial planning. In the event that these plans had not provided deadlines, it shall be understood that these deadlines are not met when four years have elapsed from the validity of the partial planning.
For the purposes of this provision, it shall be understood that a partial plan or development project is in process when, having passed the initial approval process, it has not been definitively resolved.
The modification or revision of the corresponding general planning will assign the urban regime to the land affected by this provision in accordance with the territorial model proposed, without that prevents the attribution of the classification of land for development within the limits of growth and conditions determined by the instruments of territorial planning.
First transitional provision Existing planning instruments and formulation of new planning
1. The urban planning instruments in force at the time when this law enters into force shall remain in force and enforceable until they are revised, complied with or executed in full accordance with its provisions. However, the determinations contained in the mentioned instruments that contradict the provisions of this law shall be considered inapplicable. In any event, all determinations in these planning instruments shall be construed in accordance with this Act, and those that contradict them shall not be applicable.
2. Without prejudice to the provisions of paragraph 1 above, for the development of general planning instruments that are in a legal and real situation of execution and for the purpose of having the corresponding instrument for the distribution of burdens and benefits and the material execution instrument definitively approved and which are also in a real situation of execution of the works envisaged, they shall be subject to the legal regime determined by the urban planning legislation in force at the time of the definitive approval of the detailed planning of the area.
3. Likewise, without prejudice to the provisions of paragraph 1 above, the municipalities of the Balearic Islands shall formulate the general plans and detailed development plans regulated by this law within the following periods:
a) For municipalities that do not have a general planning instrument, nor an urban land delimitation project, or with general planning approved with the state urban planning legislation prior to Law 19/1975, of 2 May, reforming the Law on land regime and urban planning, a period of two years is established, from the date of approval of this law.
b) For municipalities with general planning approved prior to the entry into force of this law, a period of four years is established from the date of approval of this law.
c) For municipalities with general planning approved after the entry into force of this law, the period indicated in the determinations contained in the general planning instruments is maintained, so that they must be subject to review, with a maximum period of six years from the date of final approval.
Second transitory provision Planning instruments in process
1. The procedures relating to plans and other urban planning instruments that are in process at the entry into force of this law:
a) Adapt their determinations to the provisions of this law, except when they have already passed the process of initial approval.
b) They shall be processed in accordance with the order of procedures and administrative powers contained in this law, except when they have already passed the procedure for provisional approval.
2. However, the council promoting the formulation of the general plan may choose to restart its processing and abide by the provisions relating to the disaggregation between the general plan and the detailed management plans established in this law, retaining, for these purposes, the administrative procedures and acts already carried out and common to both laws.
3. In the first revision or adaptation to this law of general planning plans or subsidiary planning rules formulated under planning legislation prior to this, while drafting and processing the new general plan with the structural determinations that are their own, the council will formulate at the same time a detailed planning plan for the entire area of municipal territory, in the terms established in article 40 of the present law, including the detailed determinations from the previous planning that it intends to maintain without modification and, if applicable, those that it intends to modify or incorporate ex novo, with the purpose of having a complete, clear and disaggregated regulatory framework.
To this end, the two fully differentiated documents shall be formulated in a single processing file, both for the general plan and for the detailed development plan, with the aim that the initial approvals of the two plans by the municipality shall take place in the same act. However, the final approval of the detailed development plan will be subsequent to that of the general plan to which it belongs, in accordance with the two established in Article 54 of this law.
4. The rest of plans and other instruments of urban planning that are in process at the entry into force of this law will adapt their determinations to the provisions of the same, except when they have already passed the process of initial approval.
Third transitional provision Proportion of free spaces in certain nuclei
Until the regulatory development foreseen in article 37.f) of the present law takes place, the following rules shall be followed to determine the proportion of free public spaces:
– For existing nuclei of a traditional nature that have a predominant typology of an old nucleus and intensive areas with a population of less than 3,000 inhabitants, the proportion of public open spaces may not be less than 2 m2 per inhabitant.
– For all other cases, the proportion may not be less than 5 m2 per inhabitant. In no case may the surface area of public open spaces existing at the entry into force of this law be reduced. For the purposes of being computable for compliance with the standard, public open spaces shall form part of a coherent system from the point of view of the accessibility of the population it serves.
Transitional Provision Four Procedure for Implementing the Sanitation Network
1. Municipalities that, prior to 21 August 2017, have initially approved a specific modification of their planning where they have provided for areas of urban land without sanitation network, in accordance with the eighth additional provision of Law 2/2014 of 25 March, on planning and land use, may continue to process under previous legislation.
2. In urban land for predominantly residential use existing on 21 August 2016 that does not have a drainage network, and for which the application of the provisions of the previous paragraph is not appropriate, licences may be granted for the construction of a new residential plant, as well as the corresponding end of construction, first occupation licences and corresponding habitability certificates, in accordance with the applicable regulations, provided that the following requirements are met:
a) That they are not multi-family buildings.
b) They must have an approved wastewater collection system that guarantees adequate treatment.
c) That the promoters guarantee, in any way admitted by law, the execution of the works for the connection to the sewerage network, once this is effectively implemented and in operation.
d) That the council, by means of a plenary agreement, has expressed its commitment to:
i. To provide sewerage in those urban areas that do not have a sewerage system.
ii. Or, if this is the case, in urban areas where the provision of sewerage is not feasible, modify the general planning of the municipality, in accordance with the eighth additional provision of Law 2/2014, of 25 March, on the planning and use of land.
e) That the license is granted within the periods indicated in points 3 and 4 of this provision.
In compliance with the requirement set forth in paragraph 2.b) above, it shall be accredited that the interested party has made a prior communication in which the approved treatment system shall be indicated in detail before the competent administration in water resources in order to control the possible impacts on the environment.
In compliance with the requirement set out in section 2.d) above, the agreement of the plenary session will be effective from the date of its publication in the Official Gazette of the Balearic Islands.
3. In order to make effective the possibility of granting these building licences in the case of the case indicated in point 2.d).i above, the following deadlines shall be established:
a) A maximum period of one year from the date of 21 August 2016 shall be established.
If, during this period, the municipality has not approved the corresponding urban development project, provision of services or ordinary works – as the case may be – to implement the sewerage network in the area where the licence is required and the connections to the general purification system, the exemption that allows licences to be granted, as established in point 2 above, will automatically be null and void.
When the process of approval of the indicated project requires a mandatory and/or binding report or authorization from another administration, the established maximum term will be interrupted. For this purpose, the period between the date of request of the report to the corresponding administration and the date of entry of the aforementioned document in the municipality shall not be computed in this period.
However, the period shall not be interrupted in periods that exceed what is legally foreseen in which the council does not comply with the requirements or requests for documentation made by the administration that it will inform or authorise.
b) In areas where the provisions of paragraph 3.a) above have been complied with, an additional period of two years from the approval of the corresponding project shall be established.
If during this period the corresponding municipality has not awarded the actions or works corresponding to the project referred to above, the exemption that allows licenses to be granted, as established in point 2 above, will automatically be invalid.
c) In areas where the provisions of paragraph 3.b) above have been complied with, an additional period of two years shall be established as from the award of the aforementioned works.
If during this period the corresponding municipality has not carried out the aforementioned actions or works, the exemption that allows licenses to be granted, as established in point 2 above, will automatically expire.
d) In areas where the provisions of section 3.c) above have been complied with, a final period of one year shall be established from the date of receipt of the aforementioned actions or works.
d) Infringements committed previously in cases in which, from the date of entry into force of this Act, the municipal procedure for reinstatement lapses.
e) When the cases of paragraphs b), c) and d) above occur, the municipalities will have the obligation to communicate this fact to the island council or to the entity of article 15.5, already mentioned, which assumes the competence, and will attach all the documentation available to the municipality on the infringement.
4. The power of the island councils and entities of article 15.5, regulated in article 166.5, already mentioned, shall be applicable to the cases of fact of paragraphs a) and b) of this article 166.5 that occurred before the entry into force of this law.
5. Articles 167 to 174 of this law shall apply to infringements committed before the date of its entry into force, except that the application of these articles entails a fine of a greater amount than that deriving from the application of the previous legal regime.
6. Article 178 of this law shall apply to all amounts collected as from its entry into force.
7. Articles 186, 188.2, 190.2 and 191.2 of this Act shall apply to all proceedings commenced as from its entry into force, irrespective of the date on which the alleged offence was committed.
Pursuant to paragraph 7 of the eighth transitional provision, articles 186, 188.2, 190.2 and 191.2 of this Act shall apply to all proceedings commencing after its entry into force, irrespective of the date on which the alleged offence was committed.
8. Article 187.3 of this law shall apply to all suspension orders issued after its entry into force.
9. Section 189(3) and (4) of this Act shall apply to all licence applications submitted from the date of its entry into force.
10. Article 191.1.a) of this law shall apply to all applications for legalization that are submitted after its entry into force and to those that are not expressly resolved on the date of its entry.
11. Article 193.1 of this law shall apply to all restoration projects submitted to city councils as from its entry into force.
12. Article 194.4 of this law shall apply to all reinstatement orders not executed on the date of its entry into force.
13. Article 196.1 of this law shall apply to all urban infractions in respect of which, at the date of entry into force of this law, eight years have not yet elapsed since the total completion of the acts on which they are based.
14. Article 203.3 of this law shall apply to all fines for urban infraction not yet fully collected at the date of its entry into force.
Ninth transitional provision Telematic advertising of urban planning and digital support
Island councils and town councils shall enable citizens to be effectively consulted on the instruments of territorial planning, town planning or town planning management by telematic means from the entry into force of this law, except in the case of municipalities with less than 5,000 inhabitants, for which the term shall be three years. Likewise, digital support will be promoted in the processing of plans, especially copies, replacing paper support.
Tenth Transitional Provision Transitional regime of the infringement consisting of the use of buildings, constructions or installations without an enabling title.
1. The permanent nature of the urban infraction consisting of the use or change of use of buildings, constructions or facilities without having the required urban title that enables it may not be applied retroactively to the entry into force of Law 2/2014 of 25 March, planning and land use, so the permanent nature will apply only to clandestine uses that have begun since the entry into force of the aforementioned law.
2. To the only effects of the previous paragraph, it will be considered that a new use also begins when there is a change of use of the building, construction or installation, and will be considered an infraction by change of use, among others, to register the building as a dwelling destined for tourist stays in accordance with tourism regulations without the dwelling having the mandatory urban title that qualifies for use. If the use prior to the change does not have the urban title that enables it, the change of use will cause the definitive loss of previous use, so it can not be re-exercised if you do not apply and obtain the urban title that enables it, in accordance with the regulations applicable to the application.
Transitional provision eleventh Regime of urban land classified in the general planning that does not have basic urban services
1. Land that at the entry into force of this law are formally classified as urban land in the instruments of general urban planning and do not have the basic urban services referred to in Article 22 of this law, become urban land without consolidated urbanization.
2. The owners of this land will finish, complete or execute at their expense the necessary urbanization, and cede the land for roads, if any, for the land to reach the condition of solar and build in the periods resulting from the application of Article 29 of this law. If, for this purpose, urban transformation actions other than the simple completion of the development in the terms defined in paragraph 2 of the aforementioned article 29 are necessary, the provisions of paragraph 3 shall be applied with the following specifications:
a) The duties provided for in letters b), c), g), h) and i) shall be carried out in accordance with the determinations of the planning in force.
b) The duties foreseen in letter d) will be applicable when the percentage of the duty of transfer of lucrative land free of urbanization charges is not established by the urban planning in force.
In the case of application of this letter d), given that it allows an adjustment of this percentage, is subject to the results of the economic sustainability report and the economic viability report formulated in accordance with what is established in Articles 47.2 and 47.3 of this law and state legislation.
c) Independently of what is foreseen in letter b) above, if the management and execution of the urban transformation action makes it necessary, the municipality must delimit a unit of action in accordance with article 73 of this law.
3. Notwithstanding the provisions of the preceding paragraphs, the relevant council retains the power to alter the planning, either to confer a new development of land maintaining the condition of urban land without consolidated urbanization, or to give them a new classification as land for development or as rustic land.
4. It provides for a period of one year, from the adoption of this law, for municipalities affected by this provision to modify their general planning to adapt to it.
5. The declassifications of urban land in accordance with the provisions of this provision shall not give rise to compensation, in accordance with the provisions of state legislation.
Twelfth Transitional Provision Municipalities without general planning or without urban land delimitation project
1. In municipalities without general planning or without an urban land delimitation project, and for the purposes provided for in the sixteenth transitional provision of Law 6/1999, of 3 April, of the Balearic Islands Regional Planning Guidelines and tax measures, an urban land delimitation project may be approved in order to specify the application of the urban development regime defined in the aforementioned transitional provision in this class of land.
2. The urban land delimitation projects referred to in paragraph 1 above shall be subject to the following material requirements and processing rules:
a) The land included in the delimitation must meet any of the following conditions:
i. To have road access services, water supply, waste water evacuation and electricity supply, with the appropriate characteristics for the existing building or that has to be built.
ii. To be occupied by the building in at least two thirds of the surface that the same delimitation project foresees that it may be the object of construction.
b) The processing of the urban land delimitation project will be subject to the following procedure:
i. The initial approval corresponds to the full council, and is submitted to the process of public information under the conditions provided by this law for urban planning instruments.
During the public information period, a binding report on its content will be requested from the body exercising the town planning powers of the corresponding island council.
ii. The final approval corresponds to the full council. This approval, as well as its official publication and communication to the corresponding insular council and to the Archives of Urbanism of the Balearic Islands, is subject to the same terms and conditions established by this law for urban planning instruments.
Given that the urban land delimitation project affects areas to which direct classification and planning has already been conferred in accordance with the sixteenth transitory provision of Law 6/1999, of 3 April, of the Balearic Islands Territorial Planning Guidelines and of tax measures, and which therefore does not carry out either planning or planning, it is not subject to the processing of environmental evaluation of plans.
(c) The urban land delimitation project will identify, for the purposes of point 3 of the sixteenth transitional provision of Law No 6/1999 of 3 April 1999 on the Balearic Islands spatial planning guidelines and tax measures, the old and intensive core area and the extensive area. It shall also, where appropriate, identify the areas of urban land without consolidated urbanisation referred to in the eleventh transitional provision of this Law.
3. The approval of urban land delimitation projects referred to in this transitional provision, in no case exempts the municipality concerned from the duty of subsequent formulation of urban planning, under the terms and conditions determined by this law.
Thirteenth transitory provision Expropriation proceedings in process
Once the Expropriation Valuation Commission of the Balearic Islands has been set up, the definitive fixing of the fair price through administrative channels will be the responsibility of this body, including the files that at the time of their constitution are in the process of being processed by the Provincial Expropriation Jury, which must be sent to the said Commission.
Transitional Provision Fourteenth Regime for land classified as developable in the current general planning that already has basic urban services and is consolidated by the building.
1. The land that at the entry into force of this law are formally classified as land for development in the instruments of general urban planning in force, regardless of its subsequent legal classification, and that, in the area to be delimited, already have basic urban services, referred to in Article 22 of this law, and are consolidated by the building in more than 90% of the area likely to be built according to the ordinance that is established, can be classified as urban land when its general planning is reviewed.
2. All these lands must be included in a unit of action in order that the persons owning these lands comply with all the duties of transfer that correspond to land for development (roads, parking lots, equipment and public open spaces), in compliance with what is indicated in Article 43.4 of this law, in the proportion that corresponds to the delimited area, as well as the land intended to locate public urban development, referred to in Article 24.3 of this law.
In the event of the physical impossibility of complying with the legal obligation to transfer some of these plots of land, it may be decided to pay a replacement amount in cash, which must be fixed by the municipal technical services in accordance with the regulations in force regarding town planning valuations.
3. Within the scope of the unit of action that is finally delimited, in addition to public roads, only lucrative plots may be included, with an urban use that cannot be greater than that which they already have at the entry into force of this law, as well as land in the public domain, with the use of equipment, car parks or public open spaces, in order to comply with the cessions indicated in point 2.
Also the land must maintain the uses that already have the entry into force of this law, which can only be changed if they represent a public benefit.
Number 3 of the fourteenth transitional provision introduced by number 3 of article 5 of Law [BALEARIC] 6/2018, 22 June, which modifies various rules of the legal system of the Balearic Islands in the areas of tourism, public service, budget, personnel, town planning, pharmaceutical planning, transport, waste and local regime, and authorizes the Government of the Balearic Islands to approve certain rewritten texts (“B.O.I.B.” 26 June). Valid: 27 June 2018
Transitional Provision Fifteenth Implementation of Additional Provision Six of Law 2/2014 of 25 March on Land Use and Management
In the territorial area of the island of Eivissa, in procedures relating to revisions of plans that are in process at the entry into force of this law and have passed the initial approval process, may apply the sixth additional provision of Law 2/2014 of 25 March, planning and land use in the Balearic Islands.
Single derogatory provision
1. All legal provisions which conflict with the provisions of this Act, and in particular the following, shall be repealed:
Law 2/2014, of 25 March, on the planning and use of land in the Balearic Islands.
Articles 4.1 and 5 and the first additional provision of Decree 39/2015 of 22 May, which sets out the general principles of agro-tourism activities on preferential farms in the Balearic Islands.
Article 59(1) and (3); Article 93(a); Article 94; Article 95(2)(c); Article 100(2); Article 102(4); Article 104; Article 128; the first additional provision; the second additional provision and points 4, 5, 6 and 7 of the second final provision of Law 12/2014 of 16 December on agriculture in the Balearic Islands.
The fifth, sixth, seventh and ninth additional provisions; and the first transitory provision of Law 7/2012, of 13 June, on urgent measures for sustainable urban planning.
Articles 1, 2, 3, 4 and 12 of Law 11/2005, of 7 December, on specific and tax measures for the islands of Ibiza and Formentera in matters of territorial planning, urbanism and tourism.
The eleventh additional provision of Law 8/2004, of 23 December, on tax, administrative and civil service measures.
Points 1 and 2 of article 2; section 2 of article 5; article 9; title II; articles 31, 32 and 33; articles 38 and 39; the first, second, third, fourth and eighth additional provisions; sections 2 and 3 of the first transitory provision; the third transitory provision and the first final provision of Law 6/1997, of 8 July, on rustic land in the Balearic Islands.
Law 1/1994, of 23 March, on conditions for the reconstruction on undeveloped land of buildings and installations affected by public works or declared of public utility and executed by the system of compulsory expropriation.
Law 2/1993, of 30 March, creating the Balearic Technological Innovation Park.
Points 1, 3, 5 and 6 of article 3 of Law 9/1990, of 27 June, on the attribution of powers to island councils in matters of town planning and habitability.
Law 14/2012, of 19 December, on the urban planning of the University of the Balearic Islands.
Articles 1 and 5; and points 1, 2, 3, 5 and 6 of the single additional provision of Decree-Law 1/2016, of 12 January, on urgent urban planning measures.
Point 1 of article 2 of Decree-Law 2/2016, of 22 January, amending Decree-Law 1/2016, of 12 January, on urgent measures in urban matters.
2. Insofar as they have not been tacitly repealed by the higher-ranking legislation subsequently passed, the following regulatory provisions are also expressly repealed:
Decree 81/1994, of 30 June, extending the deadlines for compliance with the duties established by Decree 12/1992.
Decree 105/1990, of 29 November, on the attribution of powers to issue town planning reports provided for in Law 9/1990.
First final provision Regulatory development
1. Island councils are authorized to:
a) to implement the present law in full or in part by regulation.
b) Dictate the necessary regulatory provisions to comply with the referrals that this law makes to norms of this nature.
2. Without prejudice to the provisions of paragraph 1 above, the Government of the Balearic Islands is authorised to develop regulations:
a) The Urban Planning Archive of the Balearic Islands.
b) The regulation relating to the standardisation and normalisation of urban planning, management and execution instruments in accordance with the provisions of the second additional provision above.
c) The composition and operation of the Commission for the Valuation of Expropriations of the Balearic Islands.
d) The regulation relating to the evaluation of buildings and the inspection of constructions and buildings.
3. The purpose of the Balearic Islands Town Planning Archive will be to facilitate the publicity of all the instruments in force for town planning, and will allow public consultation, both in person and by telematic means.
4. With the integration of the documentation that according to the Planning Archive, the Government of the Balearic Islands will develop and manage a territorial information system of the autonomous community with the collaboration of island councils, town councils and other public administrations and their instrumental bodies, including a geographic information system with the data and information necessary to know in an updated manner the processes and situations of change that occur in the territory.
Likewise, in collaboration with the General State Administration and under the terms of state legislation, it will promote the formation and updating of a general and integrated public system of information on land and town planning, and will also seek compatibility and coordination with the rest of the information systems, particularly with the real estate cadastre.
Second final provision Transitional regulatory regime
In accordance with the fourth transitory provision of the Statute of Autonomy of the Balearic Islands, and as long as it is not displaced by the regulatory development referred to in the first final provision of this law, the following state regulations of regulatory rank shall continue to be applicable in the islands of Ibiza, Formentera and Menorca, in everything that is compatible with this law and the rest of the provisions in force:
a) Royal Decree 2159/1978, of 23 June 1978, approving the Planning Regulations.
b) Royal Decree 3288/1978, of 25 August, approving the Urban Planning Management Regulations.
c) Articles 18 to 28 of Royal Decree 2187/1978, of 23 June, which approves the Regulation of urban discipline, in everything that affects the processing of ruin of buildings.
d) Decree 635/1964, of 5 March, approving the Regulation on compulsory building and the Municipal Register of Plots.
2. Until it is substituted by the regulatory development referred to in the first final provision above, in the area of the island of Mallorca, will remain in force, in everything that is compatible with this law and the rest of provisions, the General Regulations of Law 2/2014 of 25 March on the management and use of land for the island of Mallorca, approved by agreement of the plenary of the Island Council of Mallorca of 16 April 2015. Title VIII of the aforementioned regulation is considered incompatible with this law in any case, with the exception of its chapter V.
Third final provision Entry into force of the law
This Act shall enter into force on 1 January 2018.
Therefore, I order all citizens to keep this Law and the Courts and Authorities to which it corresponds to keep it.