Illegal building licences -Marbella Town Planning proposals

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    The new Draft Plan for Marbella – what the future holds

    If you want to find out how the town planning and the town hall propose to deal with the situation in Marbella/Costa del Sol visit the following link:

    http://www.marbella.es/pgou/sintesis/mo_av_marbella_5.pdf

    Also, read below how they are prepared to deal with the current situation of illegal licences:

    8.1. GENERAL PRINCIPLES OF REGULARISATION AND
    INTERVENTION CRITERIA.
    The new Marbella General Town Plan must address the problem of
    constructions which have been built on the strength of planning
    permission, or building licences, which were issued illegally. According to
    data held by the City Council and the Regional Ministry of Public Works
    and Transport, there could be around a thousand such buildings. The
    number of dwellings involved could be over 30,000. For the Review of the
    Plan to ignore this complex legal, social, economic and town planning
    problem facing the city of Marbella would be just as irresponsible as the
    original municipal decision to issue licences on the basis of non-existent
    planning.
    A large part of the structural problems and deficiencies facing the
    city are the result of this process of illegal construction, either because it
    has generated them directly or because they have aggravated pre-existing
    problems. In this sense, this Review of the Plan must address the different
    factors which have affected all that has happened in the past and seek a
    solution:
    1. The city’s need for open spaces and facilities of sufficient quality and
    quantity for the type of urban organisation that Marbella has
    historically enjoyed, and which it is necessary to recover.
    2. The impact that a number of these irregular actions have had on the
    quality of the tourist offer in Marbella.
    3. The impact of these irregular actions on the basic principles of town
    planning.
    4. The social impact that would result from ignoring completely all of
    the illegally constructed buildings.
    5. The economic value of the buildings. Every building, even when
    constructed with an illegal licence, has a monetary value.
    6. The financial repercussions felt by Marbella City Council if the
    Review of the Plan does not adopt as an objective the general
    criterion of regularisation, which could otherwise be absolutely
    traumatic. The City Council has a direct responsibility if the buildings
    constructed with illegal licences are finally demolished.
    7. The difficulty of implementing the new town planning proposals
    included in the Review of the Plan.

    8.2. THE LEGAL CAPACITY OF THE NEW GENERAL TOWN
    PLAN TO LAY DOWN THE OBJECTIVE OF
    NORMALISATION AND ITS SCOPE.
    The New Plan, in the legitimate use of its capacity to change or alter
    the current Plan, can establish conditions that will lead to the future
    regularisation of a large part of the buildings constructed with illegal
    licences. Therefore, in the exercise of that power to modify the current Plan,
    the New Plan can legitimately establish the precise conditions under which
    buildings constructed illegally can be integrated into the new general
    planning scheme.
    This statement, though, needs to be qualified:
    • Firstly, it must be recognised that the Review of the General Town
    Plan is not obliged to declare illegal buildings to be compatible with
    the new scheme. It may be opportune or convenient to do so, but
    legally, there is no obligation. This conclusion is drawn from several
    different legal precepts. There is not, therefore, any legal obligation
    for the New Plan to regularise buildings that were constructed
    illegally.
    • Secondly, the legal capacity of the planner to regularise buildings
    constructed illegally is qualified in that such regularisation cannot by
    gratuitous, with the sole purpose of avoiding the legal effect of court
    sentences which annul the licences.
    • Thirdly, the general declaration of the capacity of the Plan to
    regularise illegal buildings must also be qualified, in that the power
    to regularise, since it is simply one facet of the power to review town
    planning matters, is subject to the same legal limits as that power to
    review.

    • Fourthly, it must be clarified that the establishment of the objective of
    regularisation does not mean that the New Plan is establishing
    blanket conditions to permit the regularisation of all illegal buildings.
    On the contrary, those developments which are incompatible with
    the objectives and values contained in the Review of the Plan cannot
    be accepted. And furthermore, this means that everything that can
    be accepted must meet all of the conditions which allows its
    integration into the new territorial structure, in such a way that it is
    only by meeting all those conditions that such buildings may be
    declared compatible with the Plan. And the fact is that regularisation
    only makes sense in the context of the review of the general plan. It
    is only if compatibility with the general objectives of city planning can
    be demonstrated that illegal buildings can be regularised.
    • Lastly, legal capacity to consider the possibility of regularising illegal
    buildings in the Review of the Plan can only be based on the political
    will to restore the credibility of the town planning system. This will
    make it possible not only to prevent such infringements in the future,
    but also to take active measures that will create the conditions in
    which regularisation will be possible.

    1. To ensure coherent town planning which serves the general interests
    of the city. To this end, no illegal construction will be declared
    compatible with the new Plan if they represent a liability or lost
    opportunity to achieve the objectives of accessibility and mobility or
    the creation of Marbella’s General System of Open Spaces and
    Facilities.
    2. The guarantee of the maintenance and improvement of urban
    quality. In short, it is a question of guaranteeing an adequate
    quantity of public spaces and facilities for users of the buildings and
    existing uses in accordance with the proposals of the New Plan,
    respecting the provisions of the LOUA as regards the provision of
    facilities in each individual case.
    3. To avoid the breakdown of the basic principles of town planning. To
    this end, the proposals of the New Plan must respect current
    legislation regarding the regularisation of buildings, especially those
    limitations which establish a system of protection for land with a
    public use.
    4. The guarantee that there will be no exoneration of the basic town
    planning obligations. This means that it is necessary to guarantee
    that the beneficiaries of the regularisation measures contribute
    towards the costs incurred in the execution of the infrastructure and
    provision of the necessary facilities.
    5. The principle of proportionality in the solutions to the problem of
    regularisation. This means that the means must be appropriate to the
    ends. This principle of proportionality will be applied in the
    regularisation process and will be expressed in several different
    ways.
    6. The principles of legal security, defence of the consumer and of the
    third parties buying in good faith.

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