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Garrigues Camposol Report, Produced for The Camposol Residents Association

GARRIGUE S REPORT ON THE LEGAL PLANNING SITUATION REGARDING

THE CAMPOSOL ESTATE GARRIGUE S REPORT ON THE LEGAL PLANNING

SITUATION REGARDING THE CAMPOSOL ESTATE

GARRI G U E S ABOGADOS Y ASEQRESTRIBUTARIOS

1. AIM AND SCOPE OF THIS STUDY 3

2. BRIEF GENERAL INTRODUCTION TO SPANISH PLANNING

LAW 5

3. LEGAL SITUATION OF THE EL SALADILLO DEVELOPMENT 11

3.1 Processing of the Planning regulation instruments 11

3.1.1 SectorA 11

3.1.2 Sector B 12

4. AMENITIES AND SERVICES, STATUTORY PROVISIONS, AND

THEIR IMPLEMENTATION IN THE PLANNING 14

4.1.1 SectorA 15

4.1.2 Sector BCDF 19

4.1.3 Incidents in the assignment of surface areas 24

5. TRANSFER OF CONTROL OF THE ESTATE TO THE

MAZARRON TOWN COUNCIL 25

5.1 Sector A 26

5.2 Sector BCDF 27

5.3 Transfer of the water, sewers, and water—treatment networks for sector A 30

5.4 Transfer of the development works for sector A 31

5.5 Transfer of the works for sector BCDF 34

5.6 Incidents detected in the current state of the processing of the transfer of the

works and conclusions 34

6. THE DUTY TO CONSERVE THE ESTATE 39

7. CONCLUSIONS 46

l. AIM AND SCOPE OF THIS STUDY

The Central Liaison Committee of the Camposol Residents’ Association has commissioned Garrigues, Abogados y Asesores Tributarios, to draft a legal report with the aim of examining the legal situation of the ‘El Saladillo’ development in Camposol (Mazarron), governed by the Development Programme (PAU) for Sector A—O5/07 of the General Development Regulation Plan (PGOU) for the town of Mazarron, approved on 2 July l992 by the Mazarron Town Council. The said stage includes the Partial Plan for Sector A, for area A—O5/07, and the Partial Plan for Sector BCDF, as well as the planning regulation instruments that implement it.

The aim of the study is merely descriptive and indicative of the legal situation in which the said development finds itself, without assessing the various questions of a technical, non—legal nature that may arise with regard to it, or the duties or civil liabilities which may, as the case may be, arise therefrom.

Specifically, the aspects to be examined are as follows:

— Legal situation of the El Saladillo development

— Conservation of the estate

— Transfer of the estate to Council control

Given the time that has elapsed between the events considered, this legal report has been drawn up on the basis of the sectoral legislation with regard to urban planning that was successively in force at each given time. Verification of technical and factual aspects is excluded, as well as any considerations with regard to special regimes, the environment, or relating to the construction of buildings, and those with regard to non—administrative legislation (mainly civil or private law).

lt is our understanding that all documents exan1ined in order to draw up the report are complete, and that there are no other documents that contradict them or which amend their content in any way.

Garrigues, Abogados y Asesores Tributarios 3

Due to the special nature of planning law and to the nature of the entity for which the legal report is drafted (a residents’ association composed of persons who, for the most part, are citizens of other Member States of the European Union), we consider it appropriate to include a brief general introduction that will allow persons who are unfan1iliar with the subject to understand the examination and the conclusions of this study.

2. BRIEF GENERAL INTRODUCTION TO SPANISH PLANNING LAW

The right to build on land rests, in principle, with the owner of the land. However, this power cannot be exercised freely or in an arbitrary fashion, in accordance with the private wishes of each owner, given that this would lead to cities growing in an irregular and disorderly way. lf all owners could freely build on their land such buildings as they thought fit, the Authorities would find themselves with disorderly and irregular cities and with land either in disuse or being overused. ln order to regulate the use of land, in accordance with the specific needs of each city, the Spanish legal system has provided for the existence of rules aimed at territorial and urban regulation, with the strong influence of others that regulate aspects that are directly related to the physical aspect (concerning the environment, the regulation of natural resources, water courses,

infrastructures, etc.).

This power to regulate the distribution of land, to plan and design the growth of cities, vests with the Public Authorities, mainly the Councils and the regional governments, and is treated by the legal system as being a public activity, of general interest, without prejudice to the participation of private initiative.

Territorial planning, designing where and how cities are to grow or where new estates are to appear, the development activity (which manages and creates the city, materially—speaking, and is distinct from planning) does not necessarily have to be carried out by the Authorities, which shall, under all circumstances, always ensure that the law is complied with and that the general underlying interests are satisfied.

ln this manner, private individuals may develop and build on their land, provided that they do so in accordance with the legal provisions and those approved by the relevant Public Authorities, with their activity being subject, under all circumstances, to adn1inistrative control. As a result, it is common — it is normal — for promotion and development activity in Spain to be in the hands of private agents, with the Authorities — and in particular, the towns — being responsible for the performance of such activities in accordance with the planning rules laid down.

ln this regard, promotion activities, development activities, and building, are carried out in accordance with the table below, which summarizes in general terms the procedure which, according to legislation in force then, should have been followed for the development and construction activities of the Camposol estate.

The current regulations, which would be applicable were the development to be promoted now, has altered some of the said steps, although not in any really substantial way.

General . . . . . . . .

Dcvclopmcm This is a municipal document that classifies the land into areas, in accordance with whether or not it has been developed or whether it is

Regulation Plan . . .

open to development, and the use to which the said land is (or could be)

(PGOU) put.

ln this manner, the land may be, according to its classification:

• Urban land

• Developable land: which may be defined (where the plan

establishes, in addition to its status as developable, further details

as to the manner in which this is to be carried out), or undefined

(where the General Development Regulation Plan simply provided

for its status as developable, but not the manner, as imminent

development of this area is not envisaged)

• Non-developable land

The land on which the Camposol estate is being built was classified in the Mazarron General Development Regulation Plan as undefined developable land. The General Development Regulation Plan designated the said zone as sector A 05-07, known as El Saladillo.

The land was shown, therefore, as being classified as developable land (capable of being developed), but there was no provision governing the type of development that was to be carried out in that sector, given that as it was an area that was removed from the town centre, its development was not envisaged on a short-term basis by the Local Authority, such that the

General Development Regulation Plan did not directly include a programme to detern1ine the future stages to be carried out in the El Saladillo zone.

Thus, as the land was classified as developable, the possibility of initiating its development was open, and the owner of the land, relying on the legal methods provided for this purpose, initiated the activities aimed at the development of sector A 05-07 before the Local Authority.

Garrigues, Abogados y Asesores Tributarios 6

This promotion activity was performed by way of the following legal instruments:

The Development Programme is (was) an instrument which governs land

Development . . .

P classified as undefined developable land, for the performance of

rogramme . . . . . . .

(FAU) integrated planning activities (which are normally on a considerable scale

— new neighbourhoods or commercial or industrial areas — equipped with

sufficient utilities and services for the performance of the activities or

uses envisaged for that zone). Likewise, it should also specify what

infrastructure works are necessary in order for the zone to be properly

connected to the city.

Once the Development Programme has been approved, its provisions are specified and are implemented by way of a Partial Plan.

The Partial Plan has the aim of implementing the provisions contained in

Partial Plan the Development Programme, specifying the design of the territory that is being regulated (it states the place where the dwellings are to be located, the sports facilities, the land necessary for parks and public gardens, cultural and educational centres, as well as the public or private nature of these elements). The Partial Plan goes beyond the mere design of the development, by also assessing the costs of the development and the characteristics of the communications and utilities network (such as sewers, energy supplies, ...).

Well then, the Partial Plan constitutes the planning element that forms the basis of the implementation of the development, which is so because it is the instrument that plans in the greatest detail, and that most closely binds the concrete reality of the development it governs.

ln the case of the Camposol estate, it was provided that the Development Programme would be split into two sectors, which would each be implemented by way of a Partial Plan.

Once the plan had been approved (General Development Regulation Plan + Development Programme + Partial Plan), the execution of the development commences, for which two big needs may be distinguished:

l. To distribute the profits and the costs of the development amongst those who have the right to build. Amongst the owners of the land.

At the same time, any pre—existing properties are extinguished, and are replaced by those provided for in the plan, and the ownership thereof is assigned, by replacement, to the previous owners, in accordance with the rights that they each hold.

Garrigues, Abogados y Asesores Tributarios 7

This promotion activity was performed by way of the following legal instruments:

The Development Programme is (was) an instrument which governs land

Development . . .

P classified as undefined developable land, for the performance of

programme . . . . . . .

(FAU) integrated planning activities (which are normally on a considerable scale

— new neighbourhoods or commercial or industrial areas — equipped with

sufficient utilities and services for the performance of the activities or

uses envisaged for that zone). Likewise, it should also specify what

infrastructure works are necessary in order for the zone to be properly

connected to the city.

Once the Development Programme has been approved, its provisions are specified and are implemented by way of a Partial Plan.

The Partial Plan has the aim of implementing the provisions contained in

ln the case of the Camposol estate, it was provided that the Development Programme would be split into two sectors, which would each be implemented by way of a Partial Plan.

Once the plan had been approved (General Development Regulation Plan + Development Programme + Partial Plan), the execution of the development commences, for which two big needs may be distinguished:

l. To distribute the profits and the costs of the development amongst those who have the right to build. Amongst the owners of the land.

Garrigues, Abogados y Asesores Tributarios 7

2. Technical planning of the development of the area. The performance of the infrastructures

both below ground and on the surface which transform the materially rustic land into developed land (streets, footpaths, infrastructures for the supply of water, electrical energy, telecommunications, green zones, etc.).

The first of these activities is carried out by way of the so—called Redistribution Project (or Project for the Redistribution of Plots).

. . . The Redistribution Project is carried out by the private developer. lt is the Redistribution . . . . document that redistributes the surface area that makes up the Project (Project . . . . . . for thc development unit, in accordance with the provisions of the Partial Plan, Rcdistribution Of giving rise to new plots, their ownership is assigned to the interested Plots) parties, and the development charges and costs are shared out amongst them. This must be approved by the Council, and the said document establishes the compulsory and gratuitous assignments that the developer must make in favour of the Council, and the specific plots through which these assignments are to be materialized.

The second stage is carried out by way of the so—called Development Project, which is a technical project that defines how the provisions of the Partial Plan (on paper) are to be materially performed on the ground.

From this brief summary, the following basic ideas should be grasped:

l. The Camposol estate is developed in the zone that the Mazarron General Development Regulation Plan includes under area AO5—O7, known as El Saladillo.

2. The El Saladillo development is divided into two sectors: sector A and sector BCDF. The planning of each one is carried out by way of a Partial Plan.

3. The planning activity is carried out by way of documents of a regulatory nature that successively establish, with greater precision each time, the characteristics of the development. For the El Saladillo area, these instruments are, successively: the General Development Regulation Plan, the Development Programme, and the two Partial Plans through which they are implemented. ln this manner, the Mazarron General Development Regulation Plan regulates the whole of the Mazarron territory in a very general way, specifying the classification and the use of each sector that it defines. The Development Programme expands on the General Development Regulation Plan for the Garrigues, Abogados y Asesores Tributarios S

El Saladillo area, with a higher degree of precision in its contents. And, finally, the Development Programme is divided into two Partial Plans which expand on it for each one of the sectors, A and BCDF, that make it up, such that the planning reaches its maximum level of precision and detail by way of this last instrument.

4. Subsequently, the Redistribution Project ‘executes’ the provisions laid down in the Partial Plan for each development unit, and therefore, the rules and provisions contained in the Partial Plan should be implemented, without being able to contravene them in any way whatsoever. lt will specify the distribution of the land into the new plots, and the Council will be assigned those that correspond to it, on a compulsory and gratuitous basis, by statutory provision.

5. Lastly, the Development Project gives the technical design for the development, the provision of infrastructures for each development unit, as project for the execution of works.

6. lt is important to bear in mind that in Spain, in theory, there are no ‘private’ estates. The general—use infrastructures (roads, footpaths, street lighting, water, energy supply networks, etc., green zones) must be built by the developer, at its cost, in order to be compulsorily and gratuitously assigned to the Council.

Once the development works have been completed (in stages, as the case may be), the developer transfers control over them to the Council, and as from that time they become public property and their conservation and maintenance become the responsibility of the Council, although the law allows, and it is commonplace, the for the said maintenance to be performed by associate bodies of the Council, known as urban conservation bodies, which are compulsorily composed all owners in the area and which take on the maintenance of the services and the conservation of the public infrastructures.

7. ln theory, construction may take place once the estate is completed and control is transferred to the Council. However, it is allowed, and commonplace, for construction to take place at the same time as development (the buildings should be constructed at the same time as the roads are laid and the infrastructures are created).

8. Also in theory, the occupation of the dwellings and the opening of businesses and establishments should not be allowed prior to the completion of the estate and its transfer to the Council.

9. lt is well known that in the case of the Camposol estate, this theory has not been put into practice. The estate has not been executed in accordance with what was planned, has not been finished according to plan, control has not been transferred to the Council, and despite all of this, the occupation of dwellings and the opening of businesses and establishments have been tolerated, contrary to law, and without the area being in possession of the adequate services.

l0. Lastly, it should be borne in mind that the developer must assign to the Council, compulsorily and gratuitously, developed plots to be used for the installation of public amenities (schools, social centres, sports facilities, etc.). However, the developer is not under a duty to build or to maintain the said amenities. lt is the Council that should do so, and likewise there is no specific legal duty to build and open public amenities within a specific time limit.

3. LEGAL SITUATION OF THE EL SALADILLO DEVELOPMENT

This section seeks to offer a global and approximate overview of the legal situation of the ‘El Saladillo’ planning development. For this purpose, the legal background is briefly set out, and the most disputed points of this background are formulated, for each one of the two sectors that make up the development.

3.1 PRocEssrNG or THE PLANNING REGULATION INSTRUMENTS

3.1.1 Sector A

The processing of the planning regulation instruments that govern sector A was commenced in May 1992, and continued until 1995.

From amongst the background facts with regard to sector A, the following are the most relevant: K The processing of the Planning Development Project and for the Partial Plan or Sector A were carried out simultaneously. Both were given initial approval on 2 July 1992 and provisional approval on 8 October 1992, by the Mazarron Town Council.

K Final approval of the Development Programme and of the Partial Plan for sector A was obtained by way of an Order of the Territorial Policy and Public Works Department dated 12 March 1993, the validity of which was made conditional on the defects contained in its grounds being remedied, and the creation of a guaranty equivalent to eight per cent of the economic valuation of the development costs of each block or unit.

ln this regard, the most important defects contained in the Order of 12 March 1993 are, with regard to the Development Programme:

— the duty to implement the General Open Spaces Regime (parks and public gardens for general use) by way of a Special Plan drawn up by the Council in co—ordination with the Regional Environment and Nature Agency.

Garrigues, Abogados y Aseso

Registered Address:
Apartado De Correos, 61
Mazarron, 30870
Murcia
Spain

Chairman
Tel :(0034) 616 143 075

General email:
info@cracamposol.com

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