January 2016
Decree Law 2/2016, of January 22, modifying theDecree Law 1/2016, of January 12, on urgent measures in urban planning matters.
On January 23, it was published in the Official Gazette of the Balearic Islands (hereinafter, “BOIB“) Decree Law 2/2016, of January 22, modifying Decree Law 1/2016, of January 12, on urgent measures in urban planning matters (hereinafter, “Decree Law 2/2016“). This Decree Law came into force on the same day of its publication in the BOIB.
The purpose of Decree Law 2/2016 is (i) on the one hand, to modify the wording of certain provisions of Decree Law 1/2016, of January 12, on urgent measures in urban planning matters (hereinafter, “Decree Law 1/2016”); and (ii) on the other hand, give a new wording to articles 21, 22 and 24.2 of Law 6/1997, of July 8, on rural land in the Balearic Islands (hereinafter, “Law 6/1997“).
As noted in the preamble of Decree Law 2/2016, the modification of certain articles of Decree Law 1/2016 responds to the need to correct “some material errors and technical inaccuracies” observed in its text. To the extent that said regulatory modification is not of special importance from a legal-material point of view, it will not be the subject of analysis in this Regulatory Alert.
Regarding the new wording of articles 21, 22 and 24.2 of Law 6/1997, relating to activities related to the uses admitted to rural land, it should be noted that by virtue of the sole additional provision of Decree Law 1/2016, the application of numerous provisions of Law 12/2014, of December 16, agrarian of the Balearic Islands (in go ahead, “Law 12/2014“), among other regulations. As we already mentioned in another previous regulatory alert, regarding the approval of Decree Law 1/2016 (https://araujobenetti.com/es/nov/42/alerta-derecho-urbanistico-y-turismo-decreto-ley-12016), the aforementioned regulatory suspension was configured as a transitional measure, conditional on the legislator also proceeding to modify said regulatory provisions, setting a deadline of December 31, 2017.
Specifically, by virtue of the aforementioned sole additional provision of Decree Law 1/2016, sections 4, 5, 6 and 7 of the second final provision of Law 12/2014 were void.[1], which modify articles 13, 21, 22 and 24.2 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).
Well, according to the preamble of Decree Law 2/2016, “the suspension of effectiveness of what is established in said final provision of Law 12/2014,Until the new regulation that replaces it is approved or, where appropriate, until the expiration of the period that ends on December 31, 2017, it leaves the material aspects referred to in the aforementioned articles 21, 22 and 24.2 of the Rural Land Law without current regulation. This circumstance highlights the urgent need to complete this emergency regulation with the establishment of a transitional legal regime that regulates and orders the factual situations that were the subject of said precepts of Law 6/1997. To this end, it is considered essential to recover, to a large extent and without delay, the initial wording of the aforementioned articles 21, 22 and 24.2.”.
That is to say, the Government itself recognizes that the legislative technique of suspension used in the sole additional provision of Decree Law 1/2016 generates an undesirable panorama of uncertainty and legal insecurity, which leaves numerous material aspects in matters of urban planning and territorial planning without current regulation.
Thus, Decree Law 2/2016 proceeds to modify the aforementioned articles 21, 22 and 24.2 of Law 6/1997, relating to activities related to the uses allowed on rural land, and this only nine days after the entry into force of Decree Law 1/2016, recovering its initial wording.to a good extent and without delay” (that is, again by emergency means). This way of acting undoubtedly denotes an evident haste on the part of the Government in approving this new urban planning regulation.
Next we will analyze the new wording of articles 21, 22 and 24.2 of Law 6/1997 after the entry into force of Decree Law 2/2016. These precepts, as we say, regulate the activities related to the uses allowed on rural land, specifically, the following: (1) activities related to the destination or nature of the properties (article 21 of Law 6/1997); (2) activities linked to the exploitation and conservation of the rural environment (article 22 of Law 6/1997); and (3) activities related to public infrastructure (article 24 of Law 6/1997).
1.- Activities related to the destination or the nature of the farms.
Firstly, Decree Law 2/2016 modifies the wording of article 21 of Law 6/1997, largely recovering its initial wording. Specifically, with respect to the version of article 21 of Law 6/1997 that was introduced by the second final provision of Law 12/2014, the new wording of the aforementioned precept introduces the following changes in the regulation of activities related to the destination or nature of the properties:
- Firstly, the concept of activities related to the destination or nature of the farms is separated from that of agricultural activities.
Indeed, article 21.1 of Law 6/1997, in its wording introduced by the second final provision of Law 12/2014, provided that “The agricultural and complementary activities defined in the agricultural legislation, as well as those linked to recreational, educational, cultural and scientific uses carried out within the framework of environmental legislation, will be considered activities.”.
With the modifications introduced by Decree Law 2/2016, it is established that actions linked to the following uses will have such consideration: a) those affected by agricultural, forestry, livestock and hunting exploitation, as well as the conservation and defense of the natural environment; b) recreational, educational, cultural and scientific activities carried out within the framework of the provisions of environmental legislation; c) complementary uses regulated in sectoral legislation.
- Secondly, and along the same lines, the regulation of actions related to the destination or nature of the farms is separated from agricultural legislation.
Well, unlike the wording of article 22.2 of Law 6/1997 introduced by the second final provision of Law 12/2014, according to which “Actions related to agricultural and complementary activities, including those involving buildings, constructions or facilities, whether new or not, will be governed by the provisions of agricultural legislation and, in addition, by this law.“, as of the entry into force of Decree Law 2/2016, activities related to the destination or nature of the properties will only comply with the provisions of Law 6/1997.
- Finally, it is established that all actions linked to activities related to the destination or nature of the properties will have to be appropriate for effective development and may not involve the transformation of the destination and the essential characteristics of the land. The buildings and facilities linked to these actions will have to be limited to those strictly necessary.
This, unlike the previous wording of article 21.2 of Law 6/1999 given by the second final provision of Law 12/2014, which limited said provisions to “actions related to recreational, educational, cultural and scientific uses carried out within the framework of environmental legislation”.
2.- Activities linked to the exploitation and conservation of the rural environment.
Regarding activities linked to the exploitation and conservation of the rural environment, Decree Law 2/2016 modifies the wording of article 22 of Law 6/1997, introducing the following changes with respect to the version of the provision introduced by the second final provision of Law 12/2014:
- Firstly, it is indicated that they will be considered activities covered by the powers provided for in case 1.a) of article 11 of Law 6/1997.[2](i) those that are linked to uses related to agricultural, forestry, livestock and hunting exploitation, as well as to the conservation and defense of the natural environment, and that do not involve building actions, and (ii) those related to recreational, educational, cultural and scientific uses carried out within the framework of the provisions of environmental legislation, and that do not involve building actions. These activities will be carried out outside the scope of Law 6/1997.
This regulatory provision differs from the previous wording of the aforementioned article 22 of Law 6/1997 given by the second final provision of Law 12/2014, since it only linked the nature of activities covered by the powers provided for in case 1.a) of article 11 to activities linked to recreational, educational, cultural and scientific uses carried out within the framework of environmental legislation that did not involve building actions.
- Likewise, and in relation to the above, it is specified that they will have the character of buildings and facilities related to activities linked to the uses affected by agricultural, forestry, livestock and hunting exploitation, as well as the conservation and defense of the natural environment, those regulated by their sectoral regulations, without prejudice to the processing revealed by the rural land planning matrix of Law 6/1999, of April 3, on the territorial planning guidelines of the Islands. Balearic Islands When they involve the use of a single-family home, they will have to undergo the same procedures and comply with the same conditions as those determined by this law for activities linked to the use of a single-family home.
In relation to activities linked to recreational, educational, cultural and scientific uses carried out within the framework of the provisions of environmental legislation, the regulatory provision is maintained that when they are not carried out in execution of a special plan or a plan provided for in environmental legislation, prior to development or execution, they will have to be declared of general interest in accordance with the procedure indicated in article 26 of Law 6/1997.
3.- Activities related to public infrastructures
Finally, in relation to activities related to public infrastructure, the wording of paragraph 2 of article 24 of Law 6/1997 given by the second final provision of Law 12/2014 provided that “In any case, the infrastructure and equipment linked to agricultural holdings, as well as the irrigation infrastructure promoted by public administrations, will have the character of admitted use, and do not require a prior declaration of general interest.”.
By modifying the aforementioned article 24.2 of Law 6/1997, Decree Law 2/2016 eliminates the aforementioned regulatory provision, so that currently 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, is no longer excluded.
On the other hand, in the new wording of article 24.2 of Law 6/1997, the provision is maintained that for uses linked to public infrastructures to have the status of admitted, they must be provided for in the general planning instruments or in the territorial planning instruments. Failing that, the execution of the activity will require a prior declaration of general interest, unless the approval of the project entails, under specific legislation, such a declaration.
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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.
[1]The sole additional provision of Decree Law 1/2016 also suspended many other precepts (in total, more than thirty) of Law 6/1997, Law 12/2014, Law 2/2014, of March 25, on land management and use, Law 7/2012, of June 13, on urgent measures for sustainable urban planning, of the Law 8/2012, of July 19, on tourism in the Balearic Islands, and Decree 39/2015, of May 22, which establishes the general principles of agrotourism activities on preferred agricultural holdings in the Balearic Islands.
[2]In accordance with the aforementioned article 11.1.a) of Law 6/1997, “For land classified as common rural land, the content of the property right will include the following powers: a) Carry out the activities necessary for agricultural, forestry, hunting and livestock exploitation through the use of appropriate technical means and facilities, in accordance with its specific regulations, and without implying, in any case, the transformation of its condition or essential characteristics.”.
