APPROVAL OF THE LONG-AWAITED AND CONTROVERSIAL URBAN PLANNING AMNESTY ORDINANCE IN THE BALEARIC ISLANDS

On Friday 24 May, the Balearic Islands Government Council approved the Decree-Law on Administrative Simplification and Rationalization, which provides for the total or partial modification of around fifty laws and decrees, with more than 170 amendments to the various articles.

The main objective is to eliminate excessive bureaucracy as an obstacle for citizens and to create a lean, effective and efficient administration.

However, in this article we would like to highlight the most important novelty of this decree-law, namely the adoption of the long-awaited and at the same time contradictory transitional regulations that allow the legalization of certain buildings that are outside the urban development planning.

This decree-law allows the extraordinary regularization of buildings, constructions, installations and uses that are in a state in which they can no longer be the subject of proceedings for the restoration of urban planning legality or sanctions when this decree-law enters into force, for a maximum period of three years from the adoption of this decree-law.

Specifically, this urban planning amnesty only applies to buildings, constructions, uses and facilities against which the administration can no longer take action at the level of initiating urban planning infringement or sanction proceedings, as these are time-barred infringements that can no longer be sanctioned or forced to restore urban planning legality.

It is important to emphasize that this measure includes the prohibition of using such a "legalized" building/structure for the marketing of tourist stays.

Those buildings, structures and installations that were erected (completed) eight years before the decree-law came into force are eligible for this special measure.

Buildings, structures and installations located on protected rural areas are those that were erected (and completed) before the Spatial Planning Act of May 29, 2014 came into force, except on areas that fall within the scope of the Natural Areas Act, where they must have been erected before March 10, 1991.

However, this possibility of urban legalization of these buildings, constructions, installations and uses is not free for the owners, as they must pay an economic consideration to the administration and adopt a series of environmental measures and, like the other owners, must contribute to the urban planning process by paying the same fees and taxes that are foreseen for new buildings, constructions or installations.

Specifically, the person in question must pay a "penalty" to the municipality, which is referred to as a "financial benefit". The amounts paid are used for the acquisition, restoration, protection and sustainable management of natural areas and resources or for the endowment of communal land.

This financial benefit consists of the payment of 10 % of the value of the part to be legalized if legalization is requested in the first year of validity of this procedure, 12.5 % if it is requested in the second year and 15 % if it is requested in the third year. For applicants subject to income tax, a reduction of 50% is provided for taxpayers whose total taxable income, calculated on the basis of the average of the last four tax years, does not exceed EUR 33,000 in the case of individual taxation or EUR 52,800 in the case of joint taxation, and 25% if this income does not exceed EUR 52,800 in the case of individual taxation or EUR 84,480 in the case of joint taxation.

In addition, a technical project led and signed by an architect must be submitted with the aim of adapting to the criteria of environmental sustainability with measures that include a reduction in light pollution and an increase in the energy or water efficiency of the building, structure or installation through the use of materials, construction techniques and systems, modification of installations, generation of renewable energy, installation of water tanks or any other system to reduce energy or water consumption and, in each case, appropriate water purification systems, construction techniques and systems, modification of installations, generation of renewable energy, installation of water tanks or any other system to reduce energy or water consumption of the network and, in each case, appropriate water purification systems in the Hydrological Plan of the Balearic Islands. This point must be adapted to each specific case.

The extraordinary urban planning amnesty procedure regulated in this supplementary provision does not apply to the following cases:

A) Buildings, structures or installations that are subject to expropriation, compulsory and gratuitous transfer or demolition under current planning.

B) Buildings, structures or installations located on public land, in the protection zone of roads or in easements derived from coastal legislation.

C) Buildings, constructions, installations and uses related to the exercise of an activity that requires the acquisition of places, quotas or other rights of a public and limited nature in accordance with the sectoral legislation in force, as in the case of rural hotels or agritourism.

D) Buildings, constructions or installations in which activities are carried out that are subject to prior declaration of general interest within the meaning of Law 6/1997 of July 8 in the Balearic Islands, if the activity in question is not declared to be of general interest in accordance with Article 26 of the aforementioned law.

The decision granting permission for the extraordinary legalization of an apartment, if applicable, must expressly include a prohibition on using it for the marketing of tourist stays.

If you wish to take advantage of this urban planning amnesty, ILLESLEX ABOGADOS can provide you with legal and technical advice in collaboration with a team of architects trained for this purpose.