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Jim's Guide - Planning permission

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Posted: Tue Feb 5, 2019 3:51pm
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jimtaylor

jimtaylor

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Location: Almoradí

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INTRODUCTION

In the UK, there are a lot of exceptions to the need for planning permission, but that isn't the case in Spain. Planning permission here is a legal requirement for virtually any change you want to make to your property, even if that change is just tiling an internal wall, dividing one room into two, or repainting an external wall.

As in the UK, planning permission is granted by the local town hall. Some are more relaxed than others regarding minor changes, so it is necessary to check with your own town hall as to whether or not they require you to apply for planning permission. Don't accept a verbal response, and make sure that you obtain information in writing from the town hall. That is your responsibility as the property owner, so don't just take the word of Joe Bloggs the builder (who became an instant expert on Spanish property law when he got on his Ryanair flight to Spain).

There are cases where a licence could be refused by the town hall because the original builder has used up all of the area permitted for construction by the town hall, not leaving any extra area to extend these properties, however minor the change you wish to make. It is therefore advisable to check with the municipal architect to check whether or not this is the case.

Some examples of minor changes that require permission include putting down a concrete pad on which to erect a wooden shed, laying a paved path in your garden, building or increasing the height of a garden wall, enclosing a veranda, and fitting a gate. Putting down a concrete base or laying a path increase the 'built' area of your property, which can increase the catastral value and thus increase your IBI (council tax).

If you need planning permission but don't get it, then you can be issued with a hefty fine and, in the worst case, have to demolish what you have built. In addition, you'll have an illegal property and may be unable to sell it unless it's legalised.

If you're building up to a boundary, make absolutely sure that you know exactly where that boundary is and keep within it, or you could face considerable problems if the neighbour claims that you've built on his land.

If you live in the huerta and want to do something that will in any way impact on the irrigation canals, then you need approval from the Juzgado Privativo de Aguas. For example, an irrigation canal passes under our off-road parking area in front of our house. I wanted to put a concrete slab on this area and had to get the OK to do so.

If you wish to carry out work on, or an extension of, a property which was originally built illegally then, even if it was subsequently legalised, it's likely that the town hall would consider it 'fuera de ordenación' and not allow any work to be carried out other than for conservation of the building.

If you're planning a new build, then you need to check with your town hall to find out whether or not a property can be built and what, if any, restrictions there are on plot size and buildable size. If the plot is in an area which is already built-up, with services such as water, sewerage and electricity available, then it will be classed as urban land (zona urbana) on which properties can be constructed provided they meet with the area plans of the town hall. The opposite of urban land is non-buildable land (e.g. zona rústica), which is protected and cannot be built on. If the plot doesn't fit within either of these two categories, then it will be classed as buildable land (suelo urbanizable) and you should be able to seek planning permission.

Every town hall has a "Plan General Ordenacion Urbana" (PGOU) regarding how residential zones are regulated, and anyone is allowed to consult this to see what areas are affected and whether there are any restrictions for properties in those areas.

If the plot is very near the coast then you definitely need to talk to the town hall, as the application of coastal law has been tightened up considerably during the last few years.

If you intend to purchase a plot of land then it would be sensible to insist on a clause in the purchase contract that the purchase is dependent on planning permission being granted.

Any costs incurred in works will be subject to IVA.

There are two types of planning permission - that for minor works and that for major works.

LICENCIA DE OBRA MENOR

This is a minor works licence.

This is (officially) required for virtually all minor home improvements, including those you do yourself, provided these are not structural alterations and do not result in an increase of the useable size of your property.

Examples of works that do not fit in this category include changes to the structure - everything from building an extension to alterations to walls or the roof, internal as well as external.

Examples of works that do fit in this category include painting internal walls a different colour; tiling, adding or changing plumbing and wiring; installing central heating; adding built-in furniture; installing central heating; fitting new windows; adding an external awning, tiling - even if this is on top of an existing hard surface; changing outside walls or railings; putting down a concrete base; erecting a shed, greenhouse or other prefabricated structure; installing a septic tank: and so it goes.

It is also required if you are just doing maintenance work which entails the erection of scaffolding on a public road, and for excavation of the ground in order to install pipes or cables.

That's the theory, but if you're making an internal change which isn't visible from the outside, and the changes you make don't change what already appears on your catastral plan or ecritura, then there's no point in bothering - just go ahead and do it. However, if what you're doing means that you have a few builders' bags of materials outside your property, be warned - a friend of mine was a landscape gardener in Quesada, and he told me that a couple of times the local bobbies asked him if the owner had a license for whatever my friend was doing at the property.

If you've any doubts as to the type of license you require, then it makes sense to ask your local town hall if a minor works license is all you need - the various town halls all seem to have different criteria, and some are more relaxed than others.

In some cases you will need to visit your town hall to obtain an application form for a license, but for others (e.g. Orihuela) you can download the application form (solicitud de licencia de obra menor). Some town halls, like Alicante, allow you to present plans etc on a CD, memory stick, or via the internet.

There isn't a standard format for the applications, but all need your identity and that of the property, details of the works to be carried out, and an estimate of the cost (presupuesto) - some town halls may even require you to provide an actual quote from the company. If you are employing someone to do the job for you, then you will need to provide details of the company and their CIF number (to prove they are legally registered).

Jim's tip - if you are going to get someone else to do the job, but it's something a competent DIYer could do, then complete the application on the basis that you will be doing it yourself, as that will minimise the theoretical cost of the job and thus the fee that the town hall will charge for issuing the license. In such cases, you would identify yourself on the application form as both 'promotor' and 'constructor'.

Having completed the application form, take it to the town hall along with your escritura and proof of ID. Provided they approve what you are requesting they will tell you the amount of the fee they require. The fee is normally a percentage of the cost of the job, and varies between town halls, but is usually in order of 2% to 4% of the cost. In some cases there is a fixed fee based on the area or length of the works. You will then, if the town hall doesn't have its own payment department, normally have to go to a bank, pay the fee, return to the town hall with proof of payment, and they will then issue the license - sometimes on the spot, and sometimes they will send it in the post. Even if the town hall are slow in giving approval, you mustn't start work until you receive the license.

If the town hall consider an application as feasible but missing some information, they will give you the opportunity to rectify this rather than just refusing the application.

The town hall will probably apply time limits to an approval. For example, Alicante state that work must be started within three months of approval and finished within six months of starting the work.

LICENCIA DE OBRA MAYOR

This is a major works licence.

Major works are specifically subject of legislation, principally in Ley 5/2014, but also in individual municipalities' local ordinances. This means that the legislation nationally is generally the same, but that there are local variations.

A major works licence is required for any new construction, including a pool; the extension of an existing property; any work that alters the structure of a property, irrespective of what that structure is used for, including for examples new or enlarged windows or doors or enclosing a balcony or solarium; any work on protected buildings or in protected heritage areas; large earth movements that may change the topography of the site; and the demolition of buildings.

It may also be required for other works, such as anything that changes the internal layout of a property; rewiring or re-plumbing; or cutting down trees if your property is in a town. For these types of work it will be necessary to ask at the town hall to establish whether planning permission is required and, if so, the type of license required.

As I mentioned in the previous section, if you want to erect a wooden shed on a concrete pad, then you will need a minor works license for the concrete pad but not for the shed itself, because this is classed as a temporary structure. If your shed is going to be of concrete or brick, then that makes it a permanent structure, and a major works license will be required.

There are several categories of license (por is often replaced by de, and some municipalities might use different wording):

Licencia de obra mayor por nueva edificación - a new construction, in one of the following two categories:

Licencia de obra mayor por nueva planta - a new building on an empty plot.

Licencia de obra mayor por amplificación - to increase the size of an existing construction.

Licencia de obra mayor por acondicionamiento - general reformation, like the change of internal walls or flooring, fitting suspended ceilings, redoing outside walls etc.

Licencia de obra mayor por acometidas de infraestructuras - installing electricity and gas etc.

Licencia de obra mayor por reconstrucción - replacing e.g an old building with a new one of the same characteristics.

Licencia de obra mayor por restauración de edificios - somewhat similar to the above, but keeping the building and restoring it to its original condition, including the partial replacement of structural elements and addition of new ones.

Licencia de obra mayor por demolición - demolition of all or part of a building.

Licencia de obra mayor por consolidación - reinforcement or replacement of damaged parts of a building, with possible minor alterations of its structure.

Licencia de obra mayor por rehabilitación de edificios - when restoring a historic building to its original state in a town, like a listed building in the UK. Such buildings are listed in the Plan General de Ordenación Urbana (PGOU - general plan of urban planning for the municipality). The emphasis is on maintaining the external appearance, but the internal structure can be changed in order to improve the living conditions.

If you use a builder to manage the whole process, then he will know an architect to use for best effect. If you do so, and the builder requires a contract with you, then make sure that the contract is dependent on obtaining planning permission.

If a builder tells you that planning permission isn't required, or that you'd get away without this, then find another builder! Also ensure that you use a builder who is fully licensed, as he will be able to issue invoices that will enable you to reduce the tax due on a future sale of the property. In addition, an illegal builder won't be insured, and it will be you that is liable for damages if he falls off your roof.

You will generally need an architect to draw up plans, and he will be responsible for ensuring that the work is carried out to his specification and to sign off the completed work. You can find qualified architects from the ‘Oficina de Atención al Residente Internacional’ for your area, as this has a list of local architects, some of which will speak English.

Every town hall has an application form for the relevant licence, and many but not all enable you to download the form. If you collect an application form yourself, then it is worth asking if they can recommend an architect. This means that you could use an architect who the town hall are accustomed to working with, which could smooth the path of an application. In spite of that, it would seem sensible to seek to pay your architect half of his fee up front, and the other half once the license has been issued by the town hall, or even hold back some of the fee until the job has been completed and signed off.

Although the application forms I've looked at all have similar requirements, the format and descriptions vary considerably. For example, the form for Orihuela is here:

http://www.orihuela.es/wp-content/uploads/2018/04/obr_lu_omayor.pdf

For information, an architect is 'Arquitecto'. The person who draws up the plans, if not the architect himself, is 'Redactor' or 'Autor del Proyecto'. A project manager is 'Director de proyecto'.

Because the forms vary so much, I can't be specific about what you need to include in or with the application form, but the following are typical:

Application form with your details and a description of the work to be carried out, and details of the person who you have appointed as representative - possibly with details of the power of attorney appointing that person and/or his DNI/CIF.

If the property is part of a community, you're best asking the town hall in advance about what they require. This may include proof that the community approve of the work, details regarding the president and minutes (in Spanish) of the AGM where he was elected.

Details of the cost (Presupuesto), e.g. a quotation by whoever is going to do the work, in Spanish and without IVA, plus the architect's fee. Similarly to house purchase, there is scope here to submit a quotation which is below the actual cost, in order to reduce the fee to be paid to the town hall.

Plans of the project (Proyecto Técnico), by a qualified Spanish architect. If within Alicante province, it should be stamped with a seal of approval from the Professional College of Architects for the Alicante province. You will probably need three copies - one for the town hall, one for the constructor and one for yourself.

A document proving the architect or project manager is properly accredited.

Nota simple, or possibly just a recent IBI bill.

You may need details of the exiting property supplied by the architect, an energy efficiency certificate, and possibly also photographs and a health and safety study.

You then need proof of payment of the fee (Impuesto sobre construcciones, instalaciones y obras - ICIO) charged by the town hall to process your application. You need to take the application form and costing information to the town hall, and they will tell you the amount due. The fee is payable by the person paying for the works, and this isn't necessarily the owner.

I've not established the fees charged by any of the town halls, but understand that these typically vary between 2 & 4% of the total job cost. There are instances where this fee may be reduced - for example, Alicante give a 50% reduction for constructions which include solar heating or electricity provided these are of an approved type and above a defined minimum size. Alicante also give a 65% reduction for the proportion of any works which facilitate disabled access. Paying the fee at the outset isn't necessarily the end of it, as once work is completed the town hall may review the works and either require a further payment or even give a partial refund. If you bring the works in for less than the estimated cost on which the fee was based, then you are entitled to request a review of the fee and receive a partial refund.

You pay the fee into a bank or, if the facility is available, online, and receive proof of the payment. This and all the other documents can then be submitted to the town hall.

You should be given a stamped and dated copy of the application form, and then have to wait until the town hall decide to grant or refuse the application, and this can take a few months. Make sure you don't start work until you receive a license, as you could then be penalised.

If the application is refused, the town hall must give reasons for this refusal, and if you consider those grounds to be unreasonable then you can appeal against the refusal.

COMPLETION OF MAJOR WORKS

On completion, the architect needs to sign off on the job by issuing an official certificate -  Certificado Final de Obra. If any changes have been made to the plans since the original application to the town hall, the architect also needs to provide details of these.

This has to be done by the original architect, within fifteen days of completing the work. If for some reason you've changed architects, then you need certification from the original architect that he is no longer the responsible architect.

The certificate and details of any changes to the plans then have to be submitted to the town hall, who will probably send someone out to check the build.

NEW BUILD OR EXTENSION

For a new build you will also need a boletín issued by the electrician, plumber and gas installer in order to get supplies connected.

You will also need a certificate from the architect (Certificado Técnico de Habitabilidad) confirming that the building complies with all the regulations relating to a property being legally habitable. This is needed before the town hall will issue an occupation license.

The license issued by the town hall is called a Cédula (or Licencia) de Habitabilidad, which means a certificate of occupancy. It is required for both new buildings and for change of use - for example, turning a garage into a bedroom. In a way, it's similar to a Permiso de Circulación for a car, without which the car cannot be driven. In some of the autonomous communities the license is necessary in order to sell or rent a property.

The certificate also has other names, and there are three of these in the Valencian community:

Cédula (or Licencia) de Primera Ocupación - for a new house, and issued for a period of validity of ten years.

Cédula (or Licencia) de Segunda Ocupación y posteriores - a renewal of the above, obtained through a simplified procedure called 'Declaración Responsable de Segunda Ocupación'.

Cédula (or Licencia) de Primera Ocupación por Rehabilitación o Cambio de Uso - this is basically a reissue of the first occupation license, and is required when changes have been made to the property which effectively annul the original certificate.

Valencia have actually dropped the use of the word cédula and these days just use licencia, but Spanish friends of ours still refer to it as a cédula.

If you pay for work in stage payments, then it is sensible to withhold the final payment until you are issued with the license.

COMMUNITIES

If your property is part of a community, you need permission from that community as well as from the town hall.

The law, Ley 8/1999, states (my translation):

The owner of each apartment or premises may modify the architectural elements, facilities or services of the same when it does not undermine or alter the security of the building, its general structure, its external configuration or state, or adversely affect the rights of another owner, having to account for such works beforehand to whoever represents the community.

What this is basically saying is that if whatever you plan does not in any way impact on the community itself or any other owner, then you are entitled to seek permission to go ahead. The law also states that if you do works that are not allowed then, in the worst case, you can be banned from using the property for up to three years.

You should check the rules for your community and, if they do not prohibit what you intend, then you should approach the community president. Just be aware that if a president approves work, then that approval can be overturned at an AGM if they disagree with his actions.

If the community has given other owners the permission to do what you are intending, or have condoned such work by not taking action against it, then a refusal to allow you to do such work would give you legal grounds to appeal against the refusal.

There are instances where approval has to be given by the AGM or an EGM. If it is work that clearly alters the external state of the building, permission can only be granted by a unanimous vote at the AGM. I wouldn't be too optimistic about obtaining such permission, as there are aspects that may not be immediately apparent. For example, enclosing a balcony increases the enclosed space, which would mean an alteration to the deeds of the property, and also alter the community fees that are due by the owner and, as a consequence, the community fees that every other owner has to pay.

You also need to be aware that you may not have sole ownership of an area you think you do. For example, if you have a ground floor apartment, with a garden that you think is yours, that may not be the case. You may have sole use of that garden, but it may be classed as a community area, so you can't make changes to it without approval from the community.

SATELLITE DISHES

There is national legislation (e.g. Real Decreto 1/1998) regarding satellite dishes on community buildings like a block of flats. This states that a community aerial should be fitted on the roof, is mandatory if individual dishes would be unsightly or dangerous, should be fitted in a location that is not visible from the road, should not carry brand names that might be interpreted as advertising, there cannot be more than one dish per stairwell of the building, and the coax feeds should be concealed as much as possible. They cannot be installed in windows, balconies, openings, facades and perimeter walls of buildings. There is provision in the legislation for more than one dish to be installed, and I think that the best example of this is where a community is multi-national and needs dishes pointing at different directions. They always need planning permission.

For dishes to be fitted at individual properties, it is necessary to contact your town hall, as many have passed local ordinances regarding the need for licenses. In some cases, but not all, these restrict the need for a license to dishes over a certain size.

Some time ago the EU published a document stating that individuals had the right to receive information from a satellite dish without undue obstacles being placed in their way. However, I'm not aware that this was ever enacted into Spanish law, so it seems that local town halls have the final say.

I'd argue that a dish is a temporary structure, as it's only bolted to the floor, and shouldn't therefore need planning permission. However, to avoid the hassle factor, is probably best to seek a minor works license if your town hall requires that.

SOLAR HOT WATER OR ELECTRICITY

This is another case where you need to check with your town hall, as some do and some don't require an application for planning permission. In my opinion permission shouldn't be required as you are making your home more eco-friendly, which the government are trying to encourage.

However, if you are part of a community you will probably need permission from the community of owners, and if you live in a built-up area and are unable to site the solar installation so that it isn't visible from the street then you may need permission from the town hall.

WOODEN HOUSES

In the introduction, I referred to a wooden shed as only needing planning permission for the concrete pad it's placed on. Some people take this to refer to any wooden structure, but that isn't the case.

The Spanish Civil Law makes a distinction between real estate and other types of estate. Real estate is a structure attached to the ground, whereas other types of estate are those that can be moved from one position to another without affecting what's underneath them (like a shed).

The real point at issue is the type of use of the build and not the type of construction. If you live in it, it's a house, and houses need planning permission, plus a habitation certificate when completed.

A wooden house typically needs foundations and the provision of water, sewerage and electricity, so it is classed as real estate and needs a major works license.

Having said all that, you need to check with your town hall, as some seem to be more lenient than others For example, Alicante include prefabricated houses under the types of work covered by a minor works license, but they do however say that a minor works license does not cover the installation of facilities.

It's a similar situation for a mobile home. It's on wheels so it can be moved, but if you want to connect it to the electricity or water supply, then you probably need a license.

ADMINISTRATIVE SILENCE

In the context of planning permission, Administrative Silence (Silencio Administrativo) determines what happens if your municipality doesn't respond to your application for planning permission within a specified period of time.

There are two types of administrative silence - positive and negative - and which applies to a particular application depends on what that application is for. If it's an application for a minor works license, the lack of a response normally means that the application is granted by default. If it's an application for a major works license, the lack of a response normally means that the application is refused. However, if the property is within an area already approved for such construction then administrative silence may mean that the application is effectively approved. The only way to be certain is to check with the town hall.

The period of time before administrative silence kicks in is determined by legislation, but there is both national and regional legislation, so you would need to check with your municipality to determine what the time periods are. The most recent national legislation is Ley 39/2015. This legislation sets the maximum as six months. There may also be community legislation and ordinances issued by your municipality. For example, Alicante state that the period for a minor works license is one month. Alicante also state that the period for a major works license for an extension or a new build or reform of a property is two months, except for a listed building in which case the period is three months.

The clock starts ticking when the municipality registers your application, so make sure that they give a receipt for it.

Ley 39/2015 states that once the relevant period of time has elapsed, the municipality should, within fifteen days after this, issue a certificate of administrative silence, but you can request this at any time. Making such a request is a good idea, as it should ensure that you won't be subject to a future rift between yourself and the town hall, so make sure that you have a license or a certificate of positive administrative silence before starting work.

ILLEGAL WORKS

There are a ridiculous number of illegal builds in Spain, ranging from complete properties to tiling a flat roof. It used to be that if work was carried out and no action taken by a town hall then, after four years, the work was deemed to be legal and considered as 'fuera de ordenación' (Ley 16/2005). That four year period did not apply if the work had been carried out in green areas or areas otherwise subject of protection.

That all changed in 2014 when the Valencian government introduced a new law (Ley 5/2014); the LOTUP (urban and landscape planning and zoning law) - and this changed the four year period to fifteen years from completion of the work. In addition, the law (in typical Spanish style) is retrospective. This means that if illegal works were carried out in 2004, they could still be subject to action by the town hall.

In addition, even after fifteen years, the work is still considered illegal. The law says 'the mere course of the term of fifteen years referred to in the preceding article not constitute legalization'. That means, for example, that an illegal property could at the worst be liable for demolition and, at the best, no other work could be approved to be carried out on that property.

To take this a step further, if you don't apply for and receive retrospective planning permission, or return the property to the state it was in before the illegal works, then it could be subject to compulsory purchase.

If challenged by the town hall, a retrospective planning application must be made within two months of notification by the town hall.

CATASTRAL REGISTRATION

Any work carried out which increases the built area of a property has to be reported to the land registry (Dirección General del Catastro) so that the changes can be reflected in the catastral details and plan.

The declaration must be submitted within two months from the day following the date of completion of the works.

The changes should also be reflected in your escritura once the catastral details have been amended.

If you don't report the changes, you won't be able to get an occupation license.

The changes will affect the catastral value of the property, and thus the amount you pay in IBI, and you will probably receive a supplementary IBI bill for the year in which the work was done.

I haven't got time to give a full write-up on how to complete the form or the additional documents required, but I will give you some starting points.

There used to be separate forms for different types of catastral declarations, but these have very recently been merged into one form - Modelo 900D. The recent changes also eliminated the need to submit information which is already held by Catastro.

The form can be submitted direct to Catastro. Depending on where you live, it may also be possible to submit it to your town hall, to SUMA, to Agencia Tributaria, or to other official bodies.

The preferred way to do the submission is electronically, which requires you to have an electronic certificate or [email protected] Without either of these, you need to complete the form and submit a hard copy.

You can complete the form online and then download or print it here:

http://www.catastro.minhafp.es/documentos/900D.pdf

In my opinion, it's best to start here:

https://www.sedecatastro.gob.es/Accesos/SECAccTramites.aspx

Clicking on the first option 'Declaración de alteración catastral de los bienes inmuebles. Modelo 900D' takes you to:

https://www.sedecatastro.gob.es/administracionelectronica/sec900.aspx

You then select which way to do the declaration - electronic certificate, [email protected], or manually.


Barbs58

Tue Feb 5, 2019 5:16pm

Posts: 7

Location: Algorfa

3 helpful posts

Posted: Tue Feb 5, 2019 5:16pm

what do you do if rooftop solarium was enclosed in when you bought house

Kimmy11

Kimmy11

Very helpful member

Wed Feb 6, 2019 12:27am

Posts: 898

967 helpful posts

Posted: Wed Feb 6, 2019 12:27am

Barbs58 wrote on Tue Feb 5, 2019 5:16pm:

what do you do if rooftop solarium was enclosed in when you bought house

Hi Barbs58,

The solicitor who acted for you in your purchase should have ensured that any additions by the previous owner/s were approved and registered, and that should be reflected in your deeds.  If not, you will need to apply for retrospective planning, as per Jim's guidance.  This is what happened when my husband sold his parents' house, as they had enclosed an external staircase without permission.  He subsequently received a bill for the reassessed (and increased) IBI/Council Tax, backdated for 4 years.

Kind regards, 

Kim

Kimmy11

Kimmy11

Very helpful member

Wed Feb 6, 2019 12:30am

Posts: 898

967 helpful posts

Posted: Wed Feb 6, 2019 12:30am

Great guidance, Jim, as usual. 

Just thought I'd mention that a Minor Works' Licence for our 5m x 3m shed base was only Eu 33, so we're not talking big money to stay on the right side of the law.

Kind regards, 

Kim

Barbs58

Wed Feb 6, 2019 11:55am

Posts: 7

Location: Algorfa

3 helpful posts

Posted: Wed Feb 6, 2019 11:55am

Thank you for your reply we will look at the deeds and go from there

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