Law 13/2018, of December 28, on public roads and hiking routes in Mallorca and Menorca
On December 29, it was published in the Official Gazette of the Balearic Islands (hereinafter, “BOIB“) Law 13/2018, of December 28, on public roads and hiking routes in Mallorca and Menorca (hereinafter, the “Law on public roads and hiking routes“).
This law, which came into force the day after being published in the BOIB (that is, on December 30, 2018), aims, on the one hand, to establish the legal regime (planning, projection, financing, construction, modification, conservation, exploitation, use and defense) of the public paths of Mallorca and Menorca and, on the other hand, to regulate aspects related to the so-called “hiking routes” (among others, their selection, approval and integration in the Route Registry). hikers).
As stated in the Explanatory Memorandum, the work of this law, on the one hand, to revalue, defend and protect the network of public paths and, on the other hand, to implement a new network of hiking routes, responds to a new demand for hiking sports and environmental educational activities.
Now, note that the legislative response to this demand for leisure would possibly not have been so controversial if the hiking routes were designed only on public paths. However, as we will delve into below, this law provides that the articulation of hiking routes can be carried out even on private roads, in which case there will be the agreement of the ownership of the land or, in the absence of that, through expropriation.
Below we move on to analyze the main new features that have been introduced by the Law on Public Roads and Hiking Routes.
a) On public roads
Regarding the regulation of public roads, in general, this law aims to promote the recovery, cataloguing, registration, defense, protection, surveillance, conservation, maintenance and integration in the environment of the public road network.
According to this law, public roads are any type of road in the public domain that not only includes the communication route itself, but also the elements that – being also in the public domain – are inherent to it for its purpose. A protection zone is also established, as does highway legislation, of 3 meters on each side of the road.
With respect to public action in defense of the ownership of the road, the right to exercise it has been extended to any natural or legal person, public or private, who is in full possession of their civil and political rights. Likewise, in the event that the public action is exercised by an individual or private entity with the opposition or inaction of the administration that supposedly owns the road, compensation has been established that reaches four times the amount of the procedural costs, which will be collected from the administration to whom the ownership of the road is attributed.
Regarding the disaffection of lands in the public road domain, any possibility that tacit disaffection could occur due to the passage of time is eliminated.
In relation to corporate exchanges and mutations, they are allowed with the previous disaffection procedures and with the new allocation provided for in the heritage legislation of local entities. Likewise, an exchange motivated by a change in road layout is permitted as long as the suitability and improvement of the alternative layout with respect to the old one is conveniently justified, and a mandatory report from the island council is required – which will be binding – for roads that affect hiking routes of an island nature.
With reference to the investigation file, ex officio recovery and delimitation and boundary marking, it is established, as the main novelty, that the island council, in the case of municipal roads of supra-municipal interest, can initiate ex officio investigation files in the event that the city council does not act.
It is also mandatory that any claim regarding the ownership of municipal roads must be communicated by the defendant city council to the island council so that it can cooperate with the municipal entity in the defense of public ownership or even assume its defense if the city council does not do so.
This law also regulates the procedure for the approval and drafting of municipal catalogs of public roads, a procedure that provides for a report from the island council and a public hearing procedure. The purpose of these catalogs is to provide evidence that substantiates the public nature of the roads, relate all municipal public roads and also determine the public or private roads that have heritage or hiking interest. In any case, it is a document that is merely informative and controls public roads, and cannot be assimilated to urban planning catalogues. The town councils have a maximum period of four years from the entry into force of the law to draft the catalogues, and the island council may take over the municipal powers of drafting and approving the aforementioned catalogs in the event of inactivity of the town councils. The roads classified as public have to be subsequently registered in the Inventory of municipal assets and are also registered in the Island Registry of public roads created by this law and which has a purely informative nature of the public roads of the island, being available for public consultation. Likewise, the island council may require city councils to catalog municipal roads of supra-municipal interest.
With respect to the instruments of territorial planning, in order to organize the structure of the island network of public roads, this law provides for the preparation and approval by the island council of the Sectorial Master Plan for Roads. The purpose of this plan is to define a systematic network of supra-municipal roads, which is conceived as a complementary structural system to the road network. Special road plans may also be drawn up, which are configured as instruments for the development of the Sectoral Road Master Plan. For the purposes of the legislation on territorial planning and urban planning, the approval of sectoral master plans and special road plans implies the declaration of public utility (for expropriation purposes) of the land necessary to execute them. Alternatively, the availability of the land may arise from the voluntary alienation or transfer of the owners, from collaboration agreements or other legally valid mechanisms.
Finally, it should be noted that this law insists that non-motorized traffic (on foot, by bicycle or on horseback) on public roads is for general use, free and free, although special limitations on use may be established when required, for example, for reasons of environmental protection or the exercise of agricultural or forestry activities.
b) About the hiking routes
As we advance and explain below, the new configuration of the hiking routes raises greater controversy.
Indeed, the very notion of a hiking route – even though it is more precise with respect to the definition offered in the initial proposal of the law – presents a high degree of lack of definition and, therefore, uncertainty. Thus, hiking routes according to this law are “hiking routes”, which must “preferably pass through roads or public properties”, and which respond to “a thematic or specific objective and which integrate elements such as signage, overnight stays, the difficulty of the route, the permitted uses or places of linked interest, among others.” Likewise, it is established that hiking routes “must contribute to the economic revitalization of the farms, with the implementation of compatible uses and activities that generate complementary income.”
In this way, note, hiking routes can be configured not only along public roads or farms, but also through private itineraries.
Regarding the constitution of hiking routes, the initiative for their design and execution corresponds to the city council for local routes or the island council for those of supra-municipal interest. Individuals may collaborate by signing agreements, which will entail advantages for the signatory properties (for example, the preferential granting of aid or subsidies) and whose duration may not be less than ten years.
Now, in the event that the hiking route passes through private itineraries, this law provides that “there will be authorization from the people who own the land and, if applicable, from the people who own the agricultural holding.” To this end, the signing of the aforementioned agreements is regulated. However, it should be noted that the signing of said agreements is only one possibility, since this law provides that, in any case, the approval of special plans or hiking route projects, when they obtain provisional approval from the island council, implies the declaration of public utility for expropriation purposes of the land necessary to execute them.
As can be seen, by granting the special hiking route plans the nature of urban territorial planning plans, the legislator implicitly considers the existence of a public utility (for expropriation purposes) in the approval of said routes. Well, while the existence of a public utility with respect to the construction of public roads is common and peaceful – since they are intended to cover the access and communication needs of rural areas or population centers -, the declaration of utility for expropriation purposes is truly striking with respect to hiking routes because these, as we say, seem to respond to mere recreational expectations. This, added to the uncertainty created regarding the very definition and scope of these hiking routes, justifies that there is some concern about the use that will be given to this figure.
Finally, this law creates the Registry of hiking routes, where the hiking routes approved by the island council will be registered. This record will be publicly available and accessible electronically.
At Araújo&Benetti we have already advised various groups about the important legal implications of this new law.
The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
