January 2016
Decree Law 1/2016, of January 12, on urgent measures in urban planning matters.
On January 13, it was published in the Official Gazette of the Balearic Islands (hereinafter, “BOIB“) Decree Law 1/2016, of January 12, on urgent measures in urban planning matters (hereinafter, “Decree Law 1/2016“).
Decree Law 1/2016 introduces modifications to numerous autonomous regulatory texts of the Balearic Islands, specifically the following: Law 12/2014, of December 16, agrarian law of the Balearic Islands (hereinafter, “Law 12/2014”); Law 8/2012, of July 19, on tourism in the Balearic Islands (hereinafter, “Law 8/2012”); Law 7/2012, of June 13, on urgent measures for sustainable urban planning (hereinafter, “Law 7/2012”); Law 2/2014, of March 25, on land management and use (hereinafter, “Law 2/2014”); Law 6/1999, of April 3, on territorial planning guidelines and tax measures (hereinafter, “Law 6/1999”); and Law 6/1997, of July 8, on rural land of the Balearic Islands (hereinafter, “Law 6/1997“).
Likewise, Decree Law 1/2016 suspends the application of numerous regulatory provisions of Law 2/2014, Law 7/2012, Law 6/1997, Law 8/2012, Law 12/2014, and Decree 39/2015, of May 22, which establishes the general principles of agrotourism activities. on preferred agricultural holdings in the Balearic Islands (hereinafter, “Decree 39/2015“). The aforementioned suspension is configured as a transitional measure, conditional on the legislator also proceeding to modify said regulatory provisions, setting a deadline of December 31, 2017.
In accordance with what is established in the preamble of Decree Law 1/2016, the legal situation to which Decree Law 1/2016 reacts is the following: “Both in Law 2/2014 and in the others mentioned, procedures of an extraordinary and temporary nature have been introduced in some cases aimed at legalizing what was built or constructed without authorization, which operate in accordance with singular procedures or created outside of ordinary procedures provided for in the urban discipline regulations regulated ad hoc by Law 2/2014. The existence of extraordinary procedures, such as that of the tenth transitional provision of this Law, makes it possible to consolidate situations of impossible reversal. The unique procedures that have been approved have been aimed, among other things, at: enabling the classification as urban of rural lands, even protected ones, that do not meet the general and ordinary conditions of that category of land; allow the full incorporation into urban planning, with all the powers inherent to the right to build, of existing constructions or buildings on rural land with exemption from compliance with the applicable urban planning parameters; authorize the construction of homes in natural areas of special interest; exclude the requirement of the declaration of general interest for the construction of new buildings on rural land of special protection; exempt compliance with the limitations on maximum buildable volume imposed on tourist establishments on rural land; authorize the increase in buildability and plot occupancy of tourist establishments, including those affected by urban planning violations, above the maximum established parameters; eliminate the limitations established by urban planning for the implementation of tourist establishments in buildings listed or subject to the architectural heritage protection regime; or enable the segregation of rural plots with an area less than the minimum crop or forestry unit”.
Decree Law 1/2016 has been approved urgently, which would be justified, as also stated in the preamble of the Decree, in “the principle of sustainable territorial development, due to the need to avoid the disfigurement of rural land and to avoid certain urban settlements, as well as the need to preserve, among others, the principle of equality between owners who request urban planning licenses”.
In view of the above, there is no doubt that we are faced with a norm of special importance, since it affects such relevant sectors as urban planning, territorial planning, tourism and the agricultural sector. There is also no doubt that the legal situation generated by Decree Law 1/2016 is complex, since it not only surprisingly introduces numerous modifications in the aforementioned sectors, but also establishes a transitional situation that prevents us from knowing, for the moment, what the ultimate configuration of many of the regulatory provisions affected by it will be.
The main novelties introduced by Decree Law 1/2016 in the aforementioned regional regulations are analyzed below.
1.- Reform of the Land Law of the Balearic Islands.
1.1.- Restriction of the concept of urban land.
1.1.1.- Exclusion of the figure of settlements in rural areas from the classification of urban land.
The first article of Decree Law 1/2016 modifies letter a) of article 24.1 of Law 2/2014.
Section 1 of article 24 of Law 2/2014 regulates the concept of urban land. According to the original wording of this provision, the urban land was made up of the following lands:
“to. The lands that the general urban planning expressly includes in this type of land because, having been legally subjected to the process of integration into the urban fabric, they either have all the basic urban services, or they are organized as settlements in rural areas in accordance with the provisions of thearticle 26of this law.
b. The lands that, in the execution of urban planning, reach the degree of urbanization that it determines.”
After the modification introduced by Decree Law 1/2016, the following lands constitute urban land:
“to. The lands that the general urban planning expressly includes in this type of land because, having been legally subjected to the process of integration into the urban fabric, they have all the basic urban services.
b. The lands that, in the execution of urban planning, reach the degree of urbanization that it determines.”
As we can see, the modification introduced in section a) of article 24.1 of Law 2/2014 is essentially intended to exclude settlements on rural land, regulated in article 26 of that law, from obtaining the classification of urban land.
Note that, in accordance with the provisions of the sole additional provision of Decree Law 1/2016, the application of the aforementioned article 26 of Law 2/2014 (which regulates the conditions that so-called urban settlements must meet so that they can be classified as urban land) has been suspended at the expense of subsequent legislative modifications or, at most, until December 31, 2017.
1.1.2.- Suspension of the sixth additional provision of Law 2/2014, which allows certain de facto transformed land to be classified as urban land.
The sole additional provision of Decree Law 1/2016 also suspends the application of the sixth additional provision of Law 2/2014 until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
The sixth additional provision of Law 2/2014 regulates what it calls “soils transformed upon the entry into force of Law 7/2012, of June 13, on urgent measures for sustainable urban development“, allowing in certain cases that they be classified as urban land. In effect, section 1 of the aforementioned Sixth Additional Provision establishes the following:
“1. Without prejudice to the provisions of article 24, urban land also constitutes urban land that, upon the entry into force of Law 7/2012, of June 13, on urgent measures for sustainable urban development, and regardless of its previous urban classification, is integrated or forms an urban fabric and meets any of the following requirements:
a) Be transformed by urbanization, with its scope having all the urban services that, where appropriate, were required by the planning on the basis of which they were executed and, in the absence of this, with the basic ones, fully functional and sufficient for the uses they serve.
b) That its area, although it lacks some of the basic urban services, has consolidated planning because the building occupies at least two thirds of the spaces suitable for it, according to the planning that is established..”
In this way, despite the fact that article 24 of Law 2/2014 establishes as an essential criterion for the land to acquire the consideration of urban land that it has been “legally subject to the process of integration into the urban fabric”,This requirement disappears in the cases referred to in the aforementioned Sixth Additional Provision, which allows the classification of transformed land as urban land.de factobefore the entry into force of Law 7/2012, that is, before June 24, 2012.
Well, as we say, Decree Law 1/2016 has suspended the sixth additional provision of Law 2/2014, thus preventing this type of land from being classified as urban land. Note that, in accordance with the second transitional provision of Decree Law 1/2016, this suspension applies even to planning instruments that are in process, preventing their final approval from proceeding.
Likewise, and in connection with the above, it should be noted that the sole additional provision of Decree Law 1/2016 also suspends the application of the fifth additional provision of Law 2/2014, which establishes that “[l]The lands that are incorporated as urban land through the provisions of the sixth additional provision of this law and that prove compliance with the requirements established by this provision prior to April 18, 1999, will not be counted as growth for the purposes of the provisions of thearticle 33of theLaw 6/1999, of April 3, of the territorial planning guidelines of the Balearic Islands and of tax measures, and in the corresponding provisions that establish the island territorial plans in development of this article.”
1.2.- Suspension of the tenth transitional provision of Law 2/2014, which allows illegal buildings on rural land, with respect to which the urban planning violation they incurred had expired, to be legalized.
The sole additional provision of Decree Law 1/2016 also suspends the tenth transitional provision of Law 2/2014, until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
The tenth transitional provision of Law 2/2014 establishes the following:
“[l]Existing buildings on rural land, with respect to which upon the entry into force of this law it was no longer appropriate to adopt measures to reestablish urban planning legality, due to a clear prescription of the violation according to the applicable regulations, may be incorporated into the planning within a maximum period of three years, with all the rights and duties inherent to the works carried out with a license.”
In accordance with the provisions of the aforementioned Tenth Transitional Provision, the legalization of buildings is subject to the payment of the same fees and taxes provided for in the regulations for new buildings, as well as the payment of an economic consideration. The amounts collected for this concept must be used for the acquisition, recovery, protection and sustainable management of spaces and natural resources or their incorporation into the municipal land heritage.
Well, as we say, Decree Law 1/2016 suspends the aforementioned tenth transitional provision of Law 2/2014, thus preventing the continuation of the legalization procedures provided for in said regulatory provision.
1.3.- Increase in transfer percentages in certain urban transformation actions.
The first article of Decree Law 1/2016 also modifies letter d) of article 32.3 of Law 2/2014.
Article 32 of Law 2/2014 regulates the duties of the owners of urban land, establishing that these duties are, essentially, those of completing the urbanization and building the plots. Specifically, in section 3 of said precept, which is modified by Decree Law 1/2016, the duties of the owners of urban land are specified in cases in which the completion of the building requires urban planning actions, when, to achieve the condition of a site, the works connecting the plots to the facilities already in operation are not sufficient.
Letter d) of said article 32.3 of Law 2/2014 establishes that in the case of comprehensive reform actions of the urbanization or provision actions, in general, the owners of urban land have the obligation to transfer the land free of urbanization charges corresponding to 10% of the weighted average buildability that the different actions entail.
Well, in the modification of said precept, Decree Law 1/2016 increases that transfer percentage from 10% to 15%.
2.-Modifications to the rural land use planning matrix.
By virtue of the second article of Decree Law 1/2016, Annex 1 of Law 6/1999, relating to the matrix for the planning of rural land uses, is modified, thus recovering a large part of the validity that said annex had before the entry into force of Law 12/2014.
Specifically, the main modifications introduced in the aforementioned Law 6/1999 by Decree Law 1/2016 are the following:
(i) First, the regulations for rural land uses are reduced to categories 1 (“admitted without prejudice to compliance with specific regulations“), 2 (“conditioned as established by the Island Territorial Plan“), 23 (“prohibited with the exceptions established by the Island Territorial Plan“) and 3 (“forbidden“).
In this sense, categories 4 (“admitted as long as it does not involve the construction of new buildings and without prejudice to sectoral regulations“), 5 (“admittedin accordance with the determinations of the Agrarian Law of the Balearic Islands and without prejudice to compliance with sectoral regulations“) and 6 (“regulation according to the underlying category and with the adoption of measures to avoid or minimize the risk“), previously provided for the regulation of activities in the primary sector in Natural Areas of Special Interest with a High Level of Protection (AANP), Natural Areas of Special Interest (ANEI), Risk Prevention Areas (APR) and Territorial Protection Areas (APT). The regulation of said activities is now restricted to categories 1, 2 and 2-3.
(ii) On the other hand, modifications are introduced in the regulations of some of the complementary activities of the primary sector related to the Rural Areas of Landscape Interest (ARIP) and the Transition Areas (TA), which go from being considered “admitted” (category 1) to now being “conditioned” to the provisions of the Island Territorial Plan (category 2).
(iii) Likewise, the use regulations relating to isolated single-family housing in the Natural Areas of Special Interest (ANEI), Rural Areas of Landscape Interest (ARIP) and Risk Prevention Areas (APR) are modified, going from a category 2-3, 2, 2 to a category 3, 2-3, 2-3, respectively.
(iv) Additionally, the specific regulations relating to the Risk Prevention Areas (APR) are specified. Thus, in relation to the areas of erosion risk prevention, it is specified that (i) the excavation slopes must be stabilized by retaining walls or terraces, (ii) that the terraces and dry walls, existing or newly created, must be maintained in good condition, and (iii) that deforestation must be strictly necessary for the execution of the work. Regarding the areas of risk prevention of aquifer vulnerability, it is foreseen (i) that the wastewater treatment system must comply with the provisions of the Hydrological Plan of the Balearic Islands, and (ii) that during the execution of the works, maximum precautions must be adopted to avoid the discharge of polluting substances, including those derived from the maintenance of machinery.
(v) Activities in the primary sector of Natural Areas of Special Interest with a High Level of Protection (AANP) are conditioned to not involve the construction of new buildings.
(vi) Finally, the definition of the activities regulated in the rural land matrix is modified, adding the provision that hostels, refuges and facilities intended for accommodation of groups not subject to the Agrarian Law, or similar, will be considered conditional use in all types of rural land, as long as they are publicly owned, without prejudice to those that are expressly provided for as admitted in territorial or environmental planning.
3.- Reform of the Tourism Law of the Balearic Islands.
3.1.- Modification and partial suspension of the dispensation regime regulated in article 25 of Law 8/2012.
3.1.1.- Limitation of the scope of the exemptions regulated in article 25 of Law 8/2012.
Firstly, the third article of Decree Law 1/2016 modifies sections 1 and 2 of article 25 of Law 8/2012.
Article 25 of Law 8/2012, in its initial wording, allowed the Administrations to waive compliance with “some of the requirements established by law or regulations, when the concurrent circumstances allow, after a joint assessment of the facilities, services and improvements introduced, to compensate for non-compliance in the manner deemed appropriate for the general interest.”.
With the modifications introduced by Decree Law 1/2016 in sections 1 and 2 of said article 25, it is established that these exemptions are only applicable by the Tourism Administration and in relation to tourism regulations, thus preventing the exemptions from being applied in relation to other types of non-purely tourist requirements.
In this way, the legislator’s desire to substantially limit the scope of this type of exemption is clear.
3.1.2.- Suspension of the exceptional power of the Government Council to exempt certain projects from compliance with any urban planning and territorial planning parameters.
Decree Law 1/2016 suspends the application of section 3 of article 25 of Law 8/2012, which establishes the following:
“3. When, due to the uniqueness, importance and significance of an architectural or engineering project prepared by architects, engineers or artists of international renown and prestige, there is a marked interest and a notable convenience due to the attractiveness it may have for the island on which it is planned, the Governing Council, through a reasoned file, may exempt said project from compliance with any of the parameters of its jurisdiction that are applicable. Prior to the waiver of the Government Council, this body must agree on the declaration of autonomous interest of the investment and propose to the other competent administrations the waiver of compliance with any urban planning or territorial planning parameters whose application is within their jurisdiction, so that the projects that meet the characteristics referred to in the previous sections, and urged by the Government Council, are feasible.”
Therefore, Decree Law 1/2016 suspends that exceptional and discretionary possibility granted to the Government Council to exempt certain projects from complying with any urban planning or territorial planning parameters within its jurisdiction.
3.2.- Elimination of the exemption from the limitations of maximum built volume that applied to certain works in rural tourism accommodation establishments.
The third article of Decree Law 1/2016 also modifies section 2Bisof article 44 of Law 8/2012.
With this modification, Decree Law 1/2016 eliminates one of the paragraphs that were contained in said section, the content of which was the following:
“The works defined in sections 2 and 2 bis of this article are exempt from the limitation of the maximum buildable volume in each building, established by thearticle 28.4of Law 6/1997, of July 8, on Rural Land”.
This exemption, which applied, among others, to renovation and expansion works in rural tourism accommodation establishments, is eliminated by Decree Law 1/2016. In this way, from now on this type of works will no longer benefit from said exemption, and will be subject to the limitation of the maximum buildable volume in each building.
3.3.- Modification and partial suspension of the fourth additional provision of Law 8/2012, which regulatesRequests for modernization of tourist establishments.
3.3.1.- Modifications to the fourth additional provision of Law 8/2012.
Decree Law 1/2016, also in its third article, modifies several sections of the fourth additional provision of Law 8/2012, which regulates various aspects of requests for the modernization of existing tourist establishments, located on urban or rural land.
The fourth additional provision of Law 8/2012 provides for the exceptional possibility that certain modernization requests submitted within five years after the entry into force of said law are “excluded from the territorial, urban and tourism planning parameters that, strictly, would prevent their execution, provided that their objective is to promote deseasonalization, the search or consolidation of new market segments or to improve the quality, supply, safety, accessibility or environmental sustainability of tourist establishments”.
Well, the modifications introduced in said provision by Decree Law 1/2016, in general, are aimed at limiting the scope of the works that can be carried out by virtue of said procedure, and at establishing that the reference for the extensions and for the works that are exceptionally allowed to be executed are the works legally carried out, and not the existing ones (for example, in section 2 the expression “10% of existing ones” by “10% of what was legally built“).
Likewise, a new section 15 is included in said fourth additional provision of Law 8/2012, which establishes specificities in its application to the Playa de Palma Reconversion Plan.
3.3.2.- Suspension of some sections of the fourth additional provision of Law 8/2012.
In addition to modifying some of its provisions, Decree Law 1/2016 also suspends some of the sections of the fourth additional provision of Law 8/2012. Specifically, by virtue of the sole additional provision of Decree Law 1/2016, sections 5, 9 and 14 of said fourth additional provision are without effect until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
In section 5, an exceptional power is provided for when approving certain types of modernization requests in tourist accommodation with a category of no less than five stars, allowing them to entail an increase of more than 20% and less than 40% of the buildable area and occupancy provided that they are intended for the opening of tourist accommodation establishments, of a category of no less than five stars and are also of marked interest and notable convenience due to their uniqueness, importance and significance when they are prepared. by architects, engineers or artists of international renown and prestige, or that they involve singular or emblematic performances.
In section 9, it is established that the provisions of that fourth additional provision of Law 8/2012 are applicable to new tourist establishments.
Finally, section 14 provides for the possibility that the five-year period established by the fourth additional provision of Law 8/2012 may be extended by the Government Council.
As mentioned, the application of these three sections has been suspended by virtue of Decree Law 1/2016. Once again, the legislator’s intention to try to limit the scope of this type of exceptional procedures is clearly evident.
3.4.- Suspension of the possibility that tourist accommodation establishments may be established under a horizontal property regime or similar figures.
The sole additional provision of Decree Law 1/2016 also suspends the application of article 35 of Law 8/2012, until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
Article 35 of Law 8/2012 establishes the following:
“Existing or newly created tourist accommodation establishments with a minimum category of three superior stars or three keys, which are open to the public for at least six months a year, may be established as horizontal property or similar figures, being strictly subject to the principles of exclusive tourist use and unit of operation, regardless of the marketing system chosen by the operator.”
With the suspension of said provision, the possibility of tourist accommodation being established under a horizontal property regime or similar figures is prohibited.
3.5.- Suspension of certain exemptions from procedural requirements (declaration of general interest and environmental impact assessment) related to rural tourism accommodation establishments.
Likewise, the sole additional provision of Decree Law 1/2016 suspends the application of section 4 of article 44 of Law 8/2012, until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
Article 44.4 of Law 8/2012 states the following:
“4. To obtain the construction license, the license to install, open or operate renovations, extensions or new rural tourism accommodation establishments, except in the case of newly created rural hotels, the declaration of general interest will not be necessary.
Likewise, the construction license, the opening license and the operating license for renovations, extensions or new rural tourism accommodation establishments, except in the case of newly created rural hotels, will not be subject to the environmental impact assessment referred to in group 7 h) of Annex II of Law 11/2006, of September 14, on environmental impact assessments and strategic environmental assessments in the Balearic Islands.
Criteria on length, size and use that could constitute a limit to said evaluation exception must be established by regulation, considering that said magnitudes or uses could have repercussions on the environment.”
In this way, by virtue of the suspension of the aforementioned article 44.4 of Law 8/2012, the exceptions contained in said provision, which exempt from obtaining the declaration of general interest and environmental and strategic impact assessments in the execution of certain works and in the establishment of certain activities related to rural tourism accommodation, are no longer applicable.
In connection with the above, the sole additional provision of Decree Law 1/2016 also suspends the application of the ninth additional provision of Law 8/2012, which establishes the following:
“In all types of rural land, regardless of their degree of protection, the offer of rural tourism accommodation establishments will be permitted in the terms established in section 3 of chapter II of title III of this law, without requiring the declaration of general interest, except in the case of a new rural hotel, which must carry out said procedure.
Nor will the declaration of general interest be necessary for those actions to be carried out in tourist establishments legally established on rural land.
Natural or legal persons who promote any construction license, installation license, opening or operation of renovations, extensions or new accommodation establishments, whether or not exempt from the need to obtain a declaration of general interest, will be obliged to pay the compensatory benefit derived from the attribution of an exceptional atypical use and exploitation of the land, regulated in article 17 of Law 6/1997, of July 8, on rural land in the Illes Balears, in favor of the municipality in which these activities are authorized.”
Again, said ninth Additional Provision establishes that the beginning of activities related to the establishment of rural tourism resorts (except for newly created rural hotels) is not subject to a declaration of general interest, and that the works carried out in said type of accommodation are in no case subject to a declaration of general interest.
Well, these exemptions, as we say, are now without effect until the modification of the aforementioned ninth additional provision of Law 8/2012 is approved or at most until December 31, 2017, if said modification had not become effective before.
3.6.- Suspension of conversions and changes of useexarticle 78 of Law 8/2012.
Additionally, the sole additional provision of Decree Law 1/2016 suspends the application of article 78 of Law 8/2012, which regulates the possibilities of reconversion and change of use of tourist accommodation or plots for tourist use.
In relation to this issue, Decree Law 1/2016 also suspends letter b) of article 90.1 of Law 8/2012, which provides for reconversion or change of use as possibilities for establishments permanently deregistered.
The aforementioned suspensions are configured as a transitional measure, conditional on the legislator also proceeding to modify said regulatory provisions, setting a deadline of December 31, 2017.
3.7.- Suspension of the authorizations contained in the tenth additional provision of Law 8/2012 in relation to the tourist use of buildings.
On the other hand, Decree Law 1/2016 suspends the application of the tenth additional provision of Law 8/2012, until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
The tenth additional provision of Law 8/2012 establishes the following:
“Tourist use will be permitted in listed buildings and located on any type of land, following a favorable and binding report from the administration competent in tourism matters and the administration competent in heritage matters.
It will also be permitted, in the terms provided in state regulations and other regulations that may be applicable, for tourist use in buildings that have or have had military use or in port public domain spaces affected by the maritime signaling service, as long as they preserve their heritage values, in accordance with the report issued by the competent administrations..”
As can be seen, this provision enables, in general, tourist use in buildings listed and located on any type of land and, specifically, the tourist use of buildings that have or have had military use or in port public domain spaces assigned to the maritime signaling service.
These authorizations, as we say, have been suspended by Decree Law 1/2016.
3.8.- Suspension of the general authorization contained in the nineteenth additional provision of Law 8/2012 on activities on rural land of large sports, recreational and cultural facilities, including golf courses.
Decree Law 1/2016 also suspends the application of Additional Provision Nineteenth of Law 8/2012, which, in general, allows the activity on rural land of large sports, recreational, cultural facilities (which includes the golf course), as well as any other use that clearly contributes to deseasonalization. Note that these activities must be governed by what the corresponding island territorial plan establishes.
In relation to the above, Decree Law 1/2016 also suspends the sixth transitional provision of Law 8/2012, which establishes the transitional regime applicable to the aforementioned activities as long as the island territorial plans have not been approved.
In this way, with the entry into force of Decree Law 1/2016, both the general authorization established in relation to this type of activities is suspended, as well as the transitional regime by which their implementation is encouraged until the corresponding island plans are approved.
The aforementioned suspensions of the Nineteenth Additional Provision and the Sixth Transitional Provision of Law 8/2012 are configured as a transitional measure, conditional on the legislator proceeding to modify its content, setting the deadline for this to be December 31, 2017.
4.- Reform of the Agrarian Law of the Balearic Islands.
4.1.- Modifications to Law 12/2014.
By virtue of the fourth article of Decree Law 1/2016, modifications are introduced to some articles of Law 12/2014, highlighting, among others, the following:
(i) Regarding activities complementary to agriculture, first of all, article 83.1 of Law 12/2014 is modified in the sense of eliminating the regulatory provision that they “They are not subject in any case to a declaration of general interest”, said activities being subject, where applicable, to an urban planning license, activities license, responsible declaration and registration in the agrarian registry.
On the other hand, article 87.1 of Law 12/2014, relating to the regulation of agrotourism on preferred agricultural holdings, is modified, which now becomes more restrictive. In effect, the agrotourism activity is maintained as a complementary activity to an agricultural operation, which may be carried out under the conditions and requirements established in tourism law (specifically, in article 44 of Law 8/2012). However, the exemption from compliance with the age and plot requirements established in the aforementioned tourism law is eliminated, as well as the provision that “Neither the regulatory development nor the territorial or urban planning instruments may require any other age and plot requirements.“In this way, the buildings that are used for agrotourism activity will now have to be located in buildings built before January 1, 1960, and located on a rural property with a minimum surface area of 21,000 m.2. This, without prejudice to other age and plot requirements that are established through regulatory development or territorial or urban planning instruments.
Finally, article 59.2 of Law 12/2014, relating to equestrian activities, is modified. Specifically, their consideration is maintained as complementary activities to agricultural exploitation on which all types of gambling and/or betting are prohibited. For these purposes, the definition of equestrian activities complementary to agricultural exploitation already contained in the version of article 59.2 of Law 12/2014 prior to the reform is generally retained, although the practice of polo is expressly excluded. Notwithstanding the foregoing, activities of a commercial, restaurant, social, entertainment or similar nature that are intended to be associated with equestrian activities will no longer be considered included in the complementary activity of agricultural exploitation.
(ii) As for agricultural uses, the exemptions from the minimum plot requirement are limited, which will only apply to priority agricultural holdings, irrigation infrastructure or greenhouses, but will no longer apply to buildings or constructions for direct sales activities or agricultural transformation.
Likewise, with respect to building, construction or installation actions linked to agricultural or complementary activity, the concept of non-computable surfaces for occupation purposes is limited, which is now limited to uncovered surfaces that are not paved.
The possibility of authorizing, within an agricultural holding, new actions of building, construction or installation linked to the activities of direct sales and agricultural transformation, agro-leisure and self-consumption of the farm’s products, both agricultural and complementary, is maintained, but the useful area for exhibition and sale is limited, which is over 150 m.2at a maximum of 75 m2.
Finally, it is anticipated that, in general, all infrastructure and service provision linked to an agricultural holding will be governed by the provisions of the rural land management matrix.
4.2.- Suspension in the application of provisions of Law 12/2014.
Additionally, by virtue of the sole additional provision of Decree Law 1/2016, the application of numerous provisions of Law 12/2014 is suspended until its modification is approved or at most until December 31, 2017, if the aforementioned modification has not become effective before. Specifically, the following provisions of Law 12/2014 are void:
(i) Section 1 of article 59, relating to the definition of complementary equestrian activities, as well as section 3 of the aforementioned provision, which regulates the cases of exemption from the declaration of general interest with respect to complementary equestrian activities.
(ii) Letter a) of article 93, which establishes as a criterion for regulating agricultural and complementary activities the recognition in territorial planning instruments of the nature of accepted use of agricultural uses.
(iii) Article 94, relating to the regime of agricultural uses, which establishes, on the one hand, that agricultural uses always have the character of accepted use on rural land and, on the other, that agricultural and complementary activities (regardless of the classification of the land where they are carried out, because they are an admitted use and are linked to the destination or nature of the properties) are in no case subject to the declaration of general interest.
(iv) Letter c) of section 2 of article 95, relating to segregations of rural properties. Specifically, the possibility of segregating rural land below the minimum crop or forestry unit is void, with the exception of the cases provided for in letters a) and b) of the aforementioned section 2 of article 95, as well as in Law 19/1995, of July 4, on the modernization of agricultural holdings.
(v) Section 2 of article 100, relating to the content of urban planning with respect to buildings, constructions and facilities linked to agricultural and complementary activity.
(vi) Section 4 of article 102, which, in relation to building, construction or installation actions linked to agricultural or complementary activity, regulates cases of exemption from compliance with the conditions established in urban planning or determined in title IV of Law 6/1997. This exemption legitimizes the city council to grant the corresponding urban planning license for the aforementioned actions.
(vii) Article 104, relating to the regime of existing buildings and changes of use in agricultural holdings.
(viii) Article 128, which prevents territorial, urban or environmental planning instruments from establishing limitations or restrictions on the direct sale of products obtained from agricultural and complementary activity.
(ix) The first additional provision, which, in general, establishes that buildings, constructions and facilities intended for agricultural uses, located on an agricultural holding existing at the entry into force of Law 12/2014 (that was, on January 12, 2015) and built prior to the entry into force of Law 1/1991, of January 30, on the urban planning regime of special areas protection of the Balearic Islands (that was, March 10, 1991), are considered incorporated into the planning with all the rights and duties inherent to works executed with a license.
(x) The second additional provision, by virtue of which any rule requiring the declaration of general interest for the implementation of agricultural and complementary activities is void.
(xi) Sections 4, 5, 6 and 7 of the Second Final Provision, which modify certain provisions of Law 6/1997 in the sense of (i) allowing segregations in rural land below the minimum crop or forestry unit; (ii) link the regulation of actions related to agricultural and complementary activities with the provisions of agricultural legislation; and (iii) exclude the requirement for a prior declaration of general interest with respect to infrastructure and equipment linked to agricultural holdings, as well as irrigation infrastructure promoted by public administrations (because they are of an admitted use nature).
5.- Reform of the Rural Land Law of the Balearic Islands.
5.1.- Modification of the regulation of the declaration of interest contained in article 26 of Law 6/1997.
In its fifth article, Decree Law 1/2016 modifies section 2 of article 26 of Law 6/1997.
Article 26 of Law 6/1997 establishes, in section 1, that, in general, activities related to non-prohibited uses, other than those admitted or single-family housing, may only be authorized when they are declared of general interest.
Well, section 2 of that article establishes a series of conditions for granting the declaration of general interest. In the new wording granted in this section, the possibility of activities being declared of general interest disappears due to the fact that “contribute to rural planning or development”, and it is now required that, in the event that they involve construction, building or installation actions, they result from a necessary location on the rustic land due to their direct functional connection.
5.2.- Suspension of the authorization relating to extensions to single-family homes on rural land contained in the second transitional provision of Law 6/1997.
Decree Law 1/2016 also suspends the application of section 2 of the second transitional provision of Law 6/1997, until its modification is approved or at most until December 31, 2017, if the aforementioned modification had not become effective before.
The content of the aforementioned section 2 of the second transitional provision of Law 6/1997 is the following:
“2. Existing single-family homes on rural land, legally built under authorization that have not exhausted the buildable surface parameters applicable at the time of granting the license, may be subject to extensions that, respecting the rest of the conditions established in Title IV of this Law, exceed the limits established in points 1 and 2 of article 28 of the same. In these cases, the resulting total constructed area may not exceed that which would have been derived from exhausting the aforementioned parameters, with a maximum of 450 m.2”.
In this way, Decree Law 1/2016 suspends this authorization contained in the second transitional provision of Law 6/1997, which allows that in certain cases the expansion of single-family homes on rural land is not linked by the limits established in sections 1 and 2 of article 28 of Law 6/1997, relating to the maximum buildable area and the maximum percentage of the plot that can be occupied by the building and the rest of the construction elements.
6.- Suspension of other regulations.
6.1.- Suspension of the ninth additional provision and the first transitional provision of Law 7/2012.
Decree Law 1/2016, in section 2 of its sole additional provision, suspends the application of the ninth additional provision and the first transitional provision of Law 7/2012.
The ninth additional provision of Law 7/2012 enables the possibility of approving a transitional territorial regulation prior to the modification of the insular territorial plan of Menorca.
For its part, the first transitional provision of Law 7/2012 establishes the regime for land classified as urban that, when said law came into force, was in a situation of rural land, allowing them to maintain that classification if they begin the execution of their urban transformation within certain deadlines, and establishing that, otherwise, they are classified as developable land.
As we say, the application of said provisions has been suspended by virtue of the sole additional provision of Decree Law 1/2016. This suspension is configured as a transitional measure, conditional on the legislator also proceeding to modify said regulatory provisions, setting a deadline of December 31, 2017.
6.2.- Suspension of article 4.1, article 5, and the first additional provision of Decree 39/2015.
Additionally, the sole additional provision of Decree Law 1/2016 suspends, first of all, article 4.1 of Decree 39/2015, relating to existing buildings, the content of which is expressly protected by the provisions of thearticle 104of Law 12/2014, which has also been suspended by Decree Law 1/2016.
On the other hand, article 5 of Decree 39/2015 is also suspended, which establishes, among other issues, that the restrictions on the age of buildings or plot area that are set for agrotourisms in tourism legislation, their development regulations or in territorial or urban planning instruments are not applicable in any case to agrotourisms regulated by Law 12/2014.
Finally, the first additional provision of Decree 39/2015 is suspended, which develops the provisions of article 44.4 of Law 8/2012 regarding exceptions to submission to environmental impact assessment in obtaining licenses related to rural tourism accommodation establishments.
These suspensions are configured as a transitional measure, conditional on the legislator also proceeding to modify the aforementioned regulatory provisions, setting a deadline of December 31, 2017.
7.- Entry into force and transitional provisions.
In accordance with the provisions of the Sole Final Provision of Decree Law 1/2016, it came into force the day following its publication in the BOIB (that was, on January 14, 2016).
Without prejudice to the above, Decree Law 1/2016 introduces a first transitional provision regarding projects in process. Thus, these projects, for which an urban planning license or mandatory and binding report has been requested from the municipal Administration (tourist or agricultural) before the entry into force of Decree Law 1/2016, are allowed to be governed in accordance with the regulations in force at the time of their presentation. On the other hand, the particular case of projects related to the nineteenth additional provision of Law 8/2012 is regulated, which will be governed by the provisions of Decree Law 1/2016, unless the project as a whole has already obtained the declaration of general interest. Finally, a special rule is provided for isolated single-family housing projects located in natural areas of special interest, to which the provisions of Decree Law 1/2016 will apply as long as they have been presented within the three months prior to the date of entry into force of the same (January 14, 2016) and have not yet been resolved on the aforementioned date.
Likewise, a second transitional provision is introduced, which establishes that the procedures for the first formulation, review, modification or adaptation of the urban planning instruments that are being processed at the time of the entry into force of Decree Law 1/2016 may continue their processing, until reaching their final approval, without the need to adapt their determinations to the provisions of this standard, provided that at the time of entry into force, those procedures had passed the initial approval process. The same provision will be applicable to procedures related to urban management instruments. On the other hand, it is clarified that after the suspension of the sixth additional provision of Law 2/2014, the municipalities that already have planning alterations in process for the classification of new urban land in accordance with said additional provision, cannot continue with the files. The same provision will be applied in cases in which the classification of urban land is covered by the provisions of the first additional provision of Law 7/2012, or in the first transitional provision of Decree Law 2/2012, of February 17, on urgent measures for sustainable urban planning.
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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.
