PÉREZ DE VARGAS ABOGADOS
COMMENTS ON THE ADVANCE FOR THE REVISION OF THE PGOU OF MARBELLA OF 1986
First step to establish a framework of legal certainty in Marbella’s town planning
1.- The Advance of planning for the adaptation of the PGOU of Marbella
According to the provisions of Article 29.1 LOUA, the Advance of the planning instruments define the criteria, objectives, alternatives, and general management proposals, which will be reflected in the future planning.
The approval of the Advance has exclusively internal effects and its content does not bind the future planning.
The main objective is to facilitate citizens’ participation, with suggestions and general proposals.
It is therefore relevant to highlight that the Advance is a preparatory act, which aims to facilitate the formation and subsequent approval of the planning, encouraging citizen participation.
In conclusion, the public information period, which ends on 25 September, is for the formulation of suggestions, proposals, and general planning alternatives, which will serve as a guide for the drafting of future planning.
The period for the formulation of allegations will take place once the Town Council proceeds to the initial approval of the document for the revision of the PGOU Marbella 1986.
2.- General criteria for the future Marbella city model
The Report of the Advance establishes the general criteria, which will serve as a basis for the document revising the 1986 PGOU, for the configuration of the city model of the Marbella of the future:
Recognition that Marbella is not a compact city, but a polynuclear one, based on the “garden city” model.
Model of the city of the future, with the aim of improving the quality of life of the residents of Marbella, understanding as residents both the permanent population and the temporary population.
Establishment of urban renewal and regeneration strategies, alleviating the existing infrastructure deficits, especially in the urbanizations. In this sense, actions in the urban centres (Marbella, San Pedro, and Las Chapas) should be coordinated with external urban developments (residential urbanizations), in which the provision of infrastructures and facilities is the great unfinished business of urban planning in Marbella.
Establishing a balance between urban regeneration processes and new developments.
Incorporation of subsidized housing in those areas of urban land where demand justifies it.
Incorporation of innovation and new technologies as a determining factor in economic development.
Quality tourism.
In conclusion, these are the general criteria on which the future general planning of Marbella will be based.
3.- Singularity of the urban situation in Marbella
As the Report of the Advance indicates, the causes of the urban planning problems in the municipality are, on the one hand, the non-compliance with the general planning determinations always, and on the other hand, the existence of three general plans:
The 1986 PGOU was not published until November 2000, when it came into force.
The 1998 PGOU, which was never given final approval by the Junta de Andalucía, although it was in force and municipal building permits were granted based on its provisions, in some cases, the buildings were executed, and in others, they are pending or paralyzed.
The 2010 PGOU published in the BOJA on 20 May 2010, in force until the declaration of nullity by judgments handed down by the Supreme Court, as of 27 May 2015.
4.- Buildings constructed contrary to the determinations of the current planning, at the time of granting the municipal building licenses
This is the biggest urban planning problem facing the future general planning of the municipality of Marbella.
In the 2010 PGOU Report it was stated that 18,000 dwellings (approx.) are not in accordance with the 1986 PGOU, because they were built based on 1,009 building permits, granted by the Marbella Town Hall, until May 2006, against the determinations of the 1986 PGOU of Marbella.
According to the Report, 300 licenses (approx.) have been annulled by final court rulings and the remaining 700 licenses (approx.) have not been challenged before the Courts nor have they been reviewed ex officio by the City Council; consequently, they are buildings constructed based on licenses that are presumed to be valid and effective.
5.- Incorporation of irregular buildings in the future general planning of Marbella, depending on their suitability and compatibility with the city model
As stated in the Report of the Advance, in the drafting of the future general planning of Marbella, the starting point should be taken as the existing urban reality of the municipality and not the pre-existing planning of 1986, demonstrating the desire to address the problems arising from the buildings constructed, contrary to the determinations of the PGOU of 1986.
This statement of principle should lead to the study of each individual case, in order to justify and motivate the integration of each of these irregular buildings.The main objective of the planning should be territorial organization and the establishment of the city model, as announced in the Advance, without prejudice to resolving the problems derived from the buildings constructed, contrary to the determinations of the PGOU of 1986.
In this sense, the casuistry is complex, and therefore, as announced in the Advance, each case will have to be studied and resolved individually, depending on the suitability and compatibility or not of each irregular building with the territorial planning and the city model, which will be defined in the future general planning.
In the individual analysis of each irregular building, the legal figures, approved or modified from 2010 onwards, with the aim of regulating the integration of irregular buildings (Law 2/2012, Law 6/2015, DL 3/2019, DL. 2/2020) and in turn, of course, the content of the SC ruling of 27 October 2015 must be taken into account, although, considering that the afore mentioned legal regulations did not exist when the 2010 planning was approved, therefore, the planner must take into account in the legalizing operations the legal regulations in force in 2020.
We must always start from the basic assumptions already mentioned, on the one hand, the main objective of planning is territorial organization and the establishment of the city model for the future, on the other hand, the incorporation of irregular buildings must be done, in each case, in a reasoned and justified manner, of course, respecting the competence that corresponds to the Courts that have passed sentence declaring the nullity of the licenses, which served as a basis for the construction of buildings against the determinations of the PGOU of 1986.
We will limit ourselves to listing, without elaborating, some legal figures, which could be relevant, in each case, in the process of integration of irregular buildings:
In the administrative field:
Disappearance of the regularization areas and the Marbella urban development charges imposed on owners, depending on the seriousness of the infringements committed in the construction of irregular buildings, which appeared in the 2010 PGOU (SC Judgement 27 October 2015).
Maintenance and preservation of the final administrative acts, issued in execution of the 2010 planning, prior to the declaration of nullity of said planning by the SC ruling of 27 October 2015 (art. 73 LJCA).
Recognition of the regularized or standardized buildings, as of 20 May 2010, through compliance with urban planning obligations, in execution of the PGOU of 2010, prior to the declaration of nullity of said planning by the SC ruling of 27 October 2015 (art. 73 LJCA).
Declaration of situation assimilated to out of order, for irregular buildings, which has not been exercised by the competent public administration the power to restore the legality of urban planning in the period established in art. 185.1 LOUA (arts. 34.1.b) LOUA and art. 53 RDUA). Of course, excluded are those actions referred to in Article 185.2 LOUA, on which there is no deadline for the exercise of the power to protect the legality of urban planning.
Application of the principle of proportionality (arts. 182.3 LOUA and 48 RDUA). Application of the principle of economic performance by equivalence (art. 51 RDUA).
In the judicial field:
Enforcement of judgements annulling licenses and third parties in good faith (art. 108.3 LJCA).
Requirement of motivation, weighting, and proportionality in the enforcement of judgments (art. 108.3 LJCA).
Incident of declaration of the legal impossibility of executing the sentence, as a consequence of the approval of a subsequent planning (art. 105.2 LJCA).
Period for the compulsory judicial enforcement of the judgment, set at five years, by the first final provision of Law 42/2015, when amending Article 1964 CC.
As we have already said, the Advance only contains the criteria, objectives, alternatives, and general planning proposals, which will be reflected in the future planning, therefore, we will have to wait for the document of initial approval of the future general planning of Marbella, to see the general criteria announced in the Advance.
6.- Conclusions
The Advance for the revision of the 1986 PGOU defines the criteria, objectives, alternatives, and general development proposals that will be reflected in the future planning.
The main objective of the Advance is to facilitate the participation of citizens, with suggestions and general proposals.
We highlight the recognition that Marbella is not a compact city, but a polynuclear one, based on the “garden city” model.
The new planning will contain the city model of the future, with the objective of improving the quality of life of the residents of Marbella, understanding as residents both the permanent and the temporary population.
Likewise, the future general planning will take as its starting point the existing urban reality of the municipality and not the pre-existing planning of 1986, demonstrating the will to resolve the problems derived from the buildings constructed, contrary to the determinations of the PGOU of 1986.
