I have received a notification concerning an urban planning infringement. What now?

It is important to understand that the Public Administration can carry out urban inspections, which can be conducted ex officio or through complaints from private individuals or other administrations. If urban infringements are detected, they will notify the property owner, informing him or her of the initiation of two procedures: a sanctioning procedure and a procedure for restoring urban legality and the altered physical reality. It is important to understand that the second procedure is not a sanction but rather aims to restore the situation to its state prior to the commission of the urban infringement. Both procedures are independent, although they can be processed together. To illustrate the implications of each procedure and given that urban law is developed through local and regional regulations, we will explain both procedures within the regional framework of the Balearic Islands, based on Law 12/2017, of December 29, on urban planning in the Balearic Islands.

1)     The procedure for restoring urban legality and the altered physical reality

As mentioned earlier, this is an independent procedure from the sanctioning procedure, although they can be processed together. This procedure seeks to ensure the effective restoration of the violated urban order, regardless of the sanctions that may correspond to the committed infringement. The administration may choose to:

a)     Instruct and resolve jointly with the sanctioning procedure through:

·       A single initiation resolution

·       A single proposal for resolution

·       A single final resolution

b)     First initiate the restoration procedure and then the sanctioning one

It is important to highlight that the restoration measures have real effects and also affect third-party purchasers.

In the case that the works are still being executed, the competent administrative body will order, in whole or in part, the immediate suspension of the works or the cessation of the act or use in progress, as well as the supply of any public services. In case of non-compliance with this order, it will result, while it persists, in the imposition of successive coercive fines for minimum periods of ten days and amounts, on each occasion, of 10% of the value of the executed works and, in any case, at least 600 euros.

It is important to comply with this suspension order to be eligible for a reduction of the sanction imposed in the sanctioning procedure.

Once the resolution of the restoration procedure is final, in case of voluntary non-compliance, up to 12 coercive fines can be imposed with a minimum periodicity of one month and with an amount, on each occasion, of 10% of the value of the works carried out and, in any case, at least 600 euros.

The restoration measures are independent of:

a)     The sanctioning responsibility

b)     The administrative disciplinary responsibility

c)     Compensation for damages

2)     The sanctioning procedure

This is the procedure that seeks to punish the individual who has committed an urban infringement. It is a procedure that attempts to deter the population from committing urban infringements through the application of high fines.

The assessment of a presumed urban infringement leads to three phases within the sanctioning procedure:

a)     The initiation of the procedure

b)     The instruction of the procedure

c)     The resolution of the sanctioning procedure

It is important to highlight that from the perspective of the sanctioning procedure, it is independent of whether the acts are legalizable or not. However, legalization does have an implication on the amount of the sanction, as it grants the right to a reduction of the sanction. That is, the Law itself establishes a system of reductions that incentivizes the legalization or voluntary restoration of urban legality. In this regard, the following reductions are contemplated:

a)     50% if legalization is requested within the granted period

b)     40% if requested after the period but before the restoration resolution

c)     60% for voluntary restoration before the resolution ordering it

d)     50% if done after the resolution but within the granted period

Sanctions are graded according to aggravating and mitigating circumstances, and the minimum amount of any sanction is 600 euros per responsible party. Fines must be paid within a maximum period of 30 days from when the resolution becomes executive.

The value of the sanctions will depend on the severity of the committed infringement, and in the case of illegal constructions, the sanction will be a percentage of the value of the illegally carried out works. The value of the works will be calculated based on the sale value of the property in relation to others with similar characteristics and location. If such comparison is not possible, the valuation will be made according to the material execution cost of the building, documented by the infringing party or calculated using tables and coefficients developed by any official technical profession association, or through another validated methodology. In any case, the administration will set the valuation with a prior technical report and will give the interested party a hearing at the beginning of the sanctioning procedure.

In the sanctioning procedure, the competent administration has the authority to adopt provisional measures to ensure the effectiveness of the resolution, the collection of fines, and/or the restoration of urban legality. However, these measures must be justified and meet several requirements.

It is important to highlight that there are also crimes against land use planning, and if there are indications of a criminal offense:

a)     It is communicated to the Public Prosecutor's Office

b)     The sanctioning procedure is suspended

c)     Precautionary measures are maintained until judicial pronouncement

d)     The proven facts in the criminal proceedings bind the administration

IN ANY CASE,

In both procedures, it is important to have a specialized lawyer to check if there are possibilities for legalization, possibilities to reduce the imposed sanction, or a complete exemption through a possible prescription of the urban infringement, the imposed sanction, or the period to initiate the restoration procedure, etc.