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Mayors and abuse of planning powers

03/06/2011

'Response to a client's general question on Mayors and the abuse of planning powers'

I am not a planning expert, but my understanding of the situation, from experiences in Andalucia, is as follows.

Each Ayuntamiento (Town Hall) is obliged to prepare an overall master plan of land use in their area, called the PGOU. This plan has to be approved by the Junta and be in accordance with the Junta's regional plans. These PGOUs are to be reviewed every 5 to 7 yrs to allow for economic and other changes. In between times, variations to the plans are permitted, but they have to be approved by the Junta. That's the theory.

In practice, the Junta was lax in it's policing of these plans and the variations of them. Many mayors proceeded on the basis of plans submitted to the Junta, but not necessarily approved by them. Same with variations to the plans. Accordingly, the mayors granted permissions that may have had their approval and been in accordance with the latest PGOU of the town, but not necessarily approved by the Junta. Also, if somebody built without anybody's permission, they factored into their costings a modest fine by the Town Hall and proceeded anyway. For the Town Halls, this was all income from the licences and fines so there was no incentive for them to stop.

As a trickle of such occurrences turned into a tsunami, the Junta strengthened it's supervision realising the environmental and infrastructure damages that were being done and resultant unplanned for social services pressures. With the benefit of updated aerial photography and computer layering, they discovered that there were tens of thousands of infringements to the approved PGOU's. Belatedly they have taken action against the owners who, either they or their legal advisors, should have known that the permissions they were granted by the town halls, in not complying with the Junta approved PGOU, were illegal. Unfortunately, this slowness of action by the Junta was also matched by the inadequacy of the court processes, which have delayed decisions, appeals and enforcements. As a result, many years may have passed since the original illegal act, by which time the owners of the illegal property are fully ensconced and take great moral exception to being told to demolish their property and return the land to it's original state. However, the property is illegal and the rule of law should prevail.

There is talk of some properties being belatedly declared legal, but only if the owners pay substantial fines as penalties for the illegal construction and to cover the additional infrastructure costs and damages to the wider community that their construction has caused. If though, the property was constructed and sold to an 'innocent' third party, the original seller appears to get off with his/her profit. It's up to the current owner to claim back from the seller, but difficult to prove that it was fraud and not 'caveat emptor'. If the latter, the buyer should be suing his/her lawyer for not advising him/her he/she was buying an illegal property. However, the duty of care of the lawyer has to be proven and suing a lawyer is not the easiest thing to do anywhere! Equally, it can often be seen that the buyer knew that everything was not 100%, but they 'dreamed' that as 'everyone was doing it', they could do too with impunity. They, to their extreme discomfort, are now finding that's not the case and that the law may grind slowly, but it eventually gets to a decision that has to be implemented.

I hope that this helps. Also bear in mind that other Communities, such as Valencia and Murcia have different planning laws and then there are the national laws such as the Ley de Costas, the coastal law that prevents any construction closer than 106 m from the high tide mark all round the coasts of Spain. 'Banana Beach' apartments in Marbella is an example of property under threat of demolition because of that, and yet a new Port with apartment blocks, offices, etc has just been given permission, probably less than 500m from 'Banana Beach'? That's interesting politics, but that's another story!

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Campbell D Ferguson
F.R.I.C.S. Chartered Surveyor
Survey Spain
00 34 952 923 520

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