The long-awaited proposal to amend the Land Law arrives in Congress

On 27 March 2024, the Government entered into the registry of the Congress of Deputies the Draft Bill amending the revised text of the Law on Land and Urban Rehabilitation, approved by Royal Legislative Decree 7/2015, of 30 October ("TRLS").

In the words of the Government spokesperson at the press conference following the Council of Ministers, and as also stated in its preamble, the law aims to "provide legal certainty" and prevent certain formal errors that can be rectified from leading to the total nullity of land and urban planning instruments. 

The proposed amendments largely incorporate recommendations put forward by the Council of State, in order to give greater protection to approved urban plans, and introduce into the regulations some positions that were already defended by the jurisprudence of the Supreme Court, such as, for example, the impossibility of indirectly challenging a plan on formal grounds. 

The main new features of the proposed amendment to the TRLS are as follows: 

• Urban planning licences subject to the regime of negative administrative silence: Prefabricated houses and similar installations of both a provisional and permanent nature located on rural land are included as a case of refusal due to negative silence. 

On the contrary, following the mandate of constitutional jurisprudence, the construction of public housing is excluded from the rule of negative silence when it is promoted by public administrations or dependent entities. 

• Compensation regime: The formula for calculating compensation for impossibility or alteration of the conditions for promoting a development project is specified. 
• Nullity of planning instruments: The specific cases involving the nullity of a planning instrument due to formal or procedural defects are defined, limited to: (i) absence of the public information procedure, (ii) omission of the environmental assessment procedure, (iii) lack of the report document, (iv) approval by a manifestly incompetent body and, (v) total non-compliance with the established procedure. 

It highlights the limitation of the reports, the omission of which, unless the issuing body indicates otherwise, entails the nullity of the planning (hydrological, coasts, roads and other infrastructure of a structuring nature), establishing for all other cases the possibility of rectifying the deficiency. 

Furthermore, the proposal puts an end to the widely denounced "cascade nullity". That is to say, in those cases where the nullity of an urban or territorial planning instrument is declared, it will no longer imply, as a general rule, the nullity of all the derived plans or urban management instruments that develop that plan. 

On this point, the proposal takes up the now consolidated jurisprudential line based on the principle of preservation of final administrative acts provided for in Article 73 of the Law on Contentious-Administrative Jurisdiction and the precepts that set out the preservation of these acts in the procedural laws (among others, we highlight the Supreme Court Judgment of 11 April 2002). 

In practice, the aim is to avoid scenarios in which, as a result of the nullity of a general plan, multiple derived plans or reparcelling and urbanisation projects have been annulled, leading to real scenarios of urban planning collapse for some municipalities. 

Finally, it is also intended to extend the cases in which the declaration of nullity of a plan is limited to a territorial scope of the plan or to some of its precepts. 

• Public urban planning action: Another of the important amendments proposed is the regulation of public action in the urban planning field. Specifically, it specifies the prohibition of the use of popular action in a manner contrary to the principle of good faith or in an abusive manner. Likewise, the class action is limited to material or substantive issues. 

Finally, in order to avoid fraudulent use of this figure, the withdrawal of the public action in exchange for a financial consideration is expressly prohibited. 

• Limits to indirect challenges to planning: The proposal limits the possibility to challenge planning instruments indirectly (i.e. the challenge that is made when a development act is challenged, for example, a reparcelling project) to a period of four years from the day after the day following the publication of its final approval agreement and always limited to material illegality (formal or procedural defects may not be argued). 
• Creation of a platform to speed up the issuing of sectoral reports: The creation of a telematic platform is planned so that the administrations have the information available to issue their reports with greater diligence. 
• Transitional regime for contested plans: As regards the transitional regime, it should be noted that those plans that are annulled for formal reasons considered non-substantial will be ordered to go back to the time necessary to allow them to be rectified within a period of one year, establishing their provisional validity while these deficiencies are rectified. 

In spite of incorporating widely claimed pretensions, which undoubtedly favour legal certainty, the draft law is not exempt from criticism, which mainly goes in two main directions. On the one hand, doubts have been raised as to whether the regulation of urban planning aspects entails an invasion of autonomous competences. On the other hand, some sectors consider that the limitations on the exercise of popular action and the greater shielding of approved plans (reducing the cases of nullity and temporarily limiting indirect challenges to them) will favour greater lack of control in urban planning activity.  

The proposed amendment will now go through parliamentary procedure, which will be an express procedure, where the different groups can propose amendments to the proposal presented by the government. If it obtains the necessary parliamentary support, it is projected that the law could be approved and enter into force this summer.