News Articles

17/01/2011 - Junta de Andalucia to clarify legalisation criteria

According to press reports the Ministry of Public Works is preparing a new regulation to define a uniform set of regularisation criteria which will be applied to the tens of thousands of illegal homes in Andalucia.

There are no plans to change the existing planning laws (the LOUA) but rather this latest development seeks to perform further studies and clarify how the law should be applied in a uniform manner.

As reported in El Pais….

A decree will determine the criteria to be followed with illegal housing

The regulation does not exempt Public Works from compliance with the LOUA

DIEGO NARVAEZ - Málaga - 04/01/2011

The Ministry of Public Works is preparing a specific regulation to provide a solution to the tens of thousands of houses constructed on undeveloped land (‘suelo no urbanizable’) in rural areas finding themselves in legal limbo and exposed to a varied, if sometimes contradictory range of administrative and legal responses.  More than a regulation which establishes requirements, the text will establish a homogenous set of procedures and requirements to regularise these homes: but it will not involve a change to the law.

The vast majority of these houses will not be included on town plans because they are on land not zoned for development and away from consolidated urban centres. According to the Ministry of Public Works it is seeking to define the minimum requirements with which these houses can obtain a license of first occupation and give the homeowners some judicial security.

The regulation, which presumably will be a ‘decreto’ or decree, will have three basic assumptions: Houses that can never be legalised or incorporated into any plan will be demolished; those that can meet the minimum requirements will survive, although they will be ‘fuera de ordenacion’; and those that can be legalised will be legalised with all the consequences that that entails. The wide variety of reasons for the problems and the widely varying degrees of non compliance must also be considered when establishing the criteria for regularisation, as must the different ways in which the construction phenomenon evolved between regions and territories.

In addition to meeting the planning requirements, one of the essential requirements for regularisation is that there are no repercussions on the public purse, and that the promoters or the homeowners bear the cost for the provision of services and basic infrastructure. This is to protect the interests of other homeowners who purchased a home legally and therefore contribute their rates and taxes to the maintenance of public services.

Houses that will be condemned for demolition are those constructed on especially protected land or those that do not comply with specific regulations, especially environmental regulations or any infringement of the Coastal Law.

For houses that benefit from some type of regularisation, even ‘fuera de ordenacion’, the regulation will consider a variety of criteria to evaluate the severity of the planning breaches. “It will be a comprehensive piece of legislation” according to sources in the Ministry, because there are a large variety of situations.  There are houses in a situation of illegality because they were constructed with certain characteristics before the laws that prohibited these characteristics came into force. The Ley de Ordenación Urbanística de Andalucía (LOUA) of 2003, prohibits the construction of a house on rural land on a plot of less that 25,000m2 , the use of which is confined to farming, cattle rearing or forestry.

The Ministry maintains that the solution for the tens of thousands of houses on non urban land will be considered on a case by case basis within the ambit of urban planning in each municipality. The mayors of the areas most affected by the proliferation of houses on rural land, especially in the Malaga area of La Axarquía have repeatedly called for the drafting of a new regulation defining the uses of ‘seulo no urbanizable’ : something which the Junta de Andalucia considers unnecessary because the LOUA already defines what is possible and what is not.