How are use, planning and zoning restrictions on real estate regulated?
In addition to the national-level City Planning Law, various regional laws apply to the use, planning and zoning restrictions of real estate properties. Therefore, it is difficult to determine exactly what laws apply to any given property, and the best way is to confirm with the municipality in which the property is located. This is typically done by real estate brokers.
If the property is located within an area categorizes as a “city planning area”, then as a general rule, a development permit is needed to develop the property. Within the city planning area there are main two categories, “urbanization promotion areas” and “urbanization control areas”. Generally speaking, development is more restricted in urbanization control areas than in urbanization promotion areas; in urbanization promotion areas, as long as all the general requirements are satisfied, a development permit should be issued, while in urbanization control areas, development is prohibited unless permitted under some exception.
There are around twelve categorises of land use zones in city planning areas which provide a pattern for land-use zoning, such as residential, commercial and industrial uses. Each land use zone has specifications concerning the uses of building which can be constructed in the zone.
The uses of real estate are ruled by general land use plans and municipal use plans.
The general use plans are subdivided in (i) territorial plans of protected areas (POAP), (ii) territorial plans of reservoirs (POAAP), (iii) territorial plans of the sea coast (POOC), (iv) territorial plans of the river estuaries (POE) and (v) territorial plans of the archaeological parks (POPA). The purpose of these plans is the preservation of natural resources and natural habitats, establishing prohibitions for certain operations and conditions for other operations that may be authorized.
The municipal plans contain the main regulations concerning the use of the land. There are three types of municipal plans: (i) the municipal director plan (PDM), (ii) the urbanization plans (planos de urbanização); and (iii) the detailed plans (planos de pormenor).
According to a recent reform, the general plans must now be included in the municipal plans.
Regulation is on a statutory footing with local authorities responsible for making decisions on individual applications for planning permission, making development plans and enforcement to ensure compliance.
Development plans set out an overall strategy for the property planning and sustainable development of the area of the development plan including zoning.
Generally speaking development (which includes a change of use) requires planning permission. The local authority must make its decision not more than eight weeks from the date of receipt of the application. However this period may be extended by the planning authority requesting further information. Third parties may make objections or submissions within a period of five weeks of the date of receipt of the application by the local authority. Local authorities have the power to impose conditions. They can include requiring roads, open spaces, car parks etc. beyond the immediate needs of the proposed development and the payment of financial contributions. A decision of the local authority may be appealed to An Bord Pleanála (Planning Appeals Board) within four weeks of the date of the decision.
In general, municipal authorities have jurisdiction over urban development and land use by enacting zoning plans and ordinances. A specific municipal agency is in charge of imposing and supervising compliance with planning and zoning restrictions.
Moreover, Federal and state governments can also intervene through their respective legislation setting standards as to the use that may be given to specific areas; for instance, there is a general statute that applies to all the different levels of government (Ley General de Asentamientos Humanos, Ordenamiento Territorial y Desarrollo Urbano) which is adopted, regulated and applied specifically by each state. Besides, Federal, state and municipal authorities may also provide limits to land use through the enactment of several environmental regulations.
The most common permits and licences required for real estate developments are the license for land use or zoning certificate (licencia de uso de suelo), and construction permits. Operating licenses and liquor licenses may also be required.
The Wet bodembescherming (Soil Protection Act) sets rules to protect the soil and groundwater. The Act distinguishes between old pollution (before 1987) and new pollution (after 1987). A duty of care applies to new pollution, which means that any party who performs any acts on or in the soil is required to take measures to avoid pollution or to reverse it to the extent possible. If a remediation comes under the Uniform Remediation Standards Decree, notification to the competent provincial or municipal authorities suffices and no remediation plan is required. In other cases a remediation plan must be submitted to the competent authorities in accordance with the Soil Protection Act.
The rules referred to in the Asbestos Removal Decree 2005 and the Buildings Decree 2012 apply to the removal of asbestos. When asbestos is removed, a demolition report must always be filed with the competent authorities (usually the municipality).
A plot’s possibilities of development and use depend on the zoning plan. Regulations regarding the adoption of zoning plans can be found in the Wet ruimtelijke ordening (Spatial Planning Act). If the zoning plan is breached, the municipality can take enforcement measures by imposing an order subject to a penalty or by enforcing an administrative order. The offender is then given a period in which to put an end to the breach, before forfeiting a penalty or before the municipality itself puts an end to the breach and recovers the costs from the offender. The rules in question can be found in the Algemene wet bestuursrecht (General Administrative Law Act). Zoning plans are amended and updated on a regular basis (at least once every ten years). The procedure in question takes 26 weeks in principle, but longer in practice.
Integrated environmental permit
The zoning plan also sets out the framework within which an integrated environmental permit is granted. The integrated environmental permit and its assessment framework are regulated in the Wet algemene bepalingen omgevingsrecht (Area Exploitation Permits General Provisions Act). The integrated environmental permit integrates several permits for several activities (such as construction, installation, the environment and fire safety). The Area Exploitation Permits General Provisions Act therefore frequently refers to specific Acts, such as the Environmental Management Act (regarding the environment) and the Housing Act (regarding construction). It is possible to apply for an integrated environmental permit for each activity separately, unless the activities are inextricably linked. Notification suffices for some activities. Apart from a few specific cases, this applies, for instance, to demolition and to the fire safety of buildings that can hold more than 50 persons or when rooms are let to five or more individual tenants.
The integrated environmental permit must be applied for digitally via the www.omgevingsloket.nl website. The competent authorities are usually the Municipal Executive of the municipality in which the activity takes place. The standard procedure for handling an application for an integrated environmental permit takes 8 to a maximum of 14 weeks, after which the applicant can file an objection with the administrative body itself, followed by an appeal with the court and subsequently with the Administrative Law Division of the Council of State. The Area Exploitation Permits General Provisions Act also provides for an extensive procedure, which takes 26 to a maximum of 32 weeks, after which an appeal and an appeal in cassation may be filed, or only an appeal with the Administrative Law Division of the Council of State.
The extensive procedure applies, for instance, to an integrated environmental permit that departs from the zoning plan. If an activity conflicts with the zoning plan, it may nevertheless go ahead if the municipality is willing to give permission to depart from the zoning plan. The Municipal Executive has the authority to give that permission.
If an integrated environmental permit has been issued and the activities are continued at some point by a party other than the permit holder, the integrated environmental permit is transferred by operation of law. That transfer must be notified to the competent authorities, however.
There are multiple layers of national, regional and local zoning plans that in total constitute restrictions for use of the property. For practical purposes, plans adopted by the municipality are most relevant for commercial property. The municipality can prepare zoning plans for several properties or larger areas, while everyone has a right to prepare proposals for detailed zoning plans.
Property owners have to make sure that their building applications are granted, and the building projects are started, within five years after a (private) detailed zoning plan has been adopted. On application, the municipality may grant a two-year extension of this deadline. If a building application is submitted in accordance with provisions of the detailed zoning plan, it shall be granted.
Property owners can apply for dispensation from plans and provisions, however a newly adopted zoning plan should not be easily set aside through series of dispensations. Thus, such dispensation will not be permitted if the considerations behind the provision is significantly disregarded. Furthermore, the advantages of a dispensation must clearly outweigh the disadvantages.
Romanian legislation provides a hierarchical system of regulations that contain urban planning parameters and related restrictions.
At the highest level, Law 350/2001 regarding territorial planning provides building restrictions and zoning obligations. Such restrictions are further detailed and derogated by County Zoning Plans and/or Area Zoning Plans. At a subsequent level, the General Urban Plan of a town further derogates from the County Zoning Plans and/or Area Zoning Plans by providing local zoning and construction restrictions, usually at the level of the entire city/town.
Areas as wide as several city blocks may be regulated, at a subsequent level, by Urban Zoning Plans, which derogate from the General Urban Plan. The Urban Zoning Plan may be mandatory for a certain area if provided in the General Urban Plan. For individual construction projects, Detailed Urban Plans may derogate from the General Urban Plan/Urban Zoning Plans in force.
The above-mentioned regulations are approved at various levels of local government, usually by deliberative local or county councils.
Planning and zoning are usually regulated in Russia at the Federal level and have a multilayer structure:
- Territorial planning – determines the location of buildings and facilities on territorial planning charts.
- Zoning – determines the types of permitted use of land plots, their maximum size and limits of the permitted construction parameters (minimum distances between buildings and site borders, maximum height and number of floors, development density, etc.), as well as restrictions on use of land plots and the property located on them (special protection zones).
- Territorial layout - separates elements of the planned structure: blocks, micro-districts and other urban planning elements to establish boundaries of land plots on which development projects and infrastructure are to be built.
Planning and zoning is governed at municipal level, with the Swedish municipalities as the only competent decision-making authority (commonly referred to as the “municipal planning monopoly”).
Zoning plans/detailed development plans for the use of land are developed and adopted by the municipalities’ city planning administrative divisions, often at the request of and in consultation with a private developer or property owner. The planning process allows for neighbours and others affected by the suggested development to express concerns/suggested alterations, but the municipal council may however ultimately decide to adopt a plan irrespective of any popular opposition. Municipal decisions on planning can of course be appealed against and contested in court, but under normal circumstances only by a party who has submitted written comments during the planning process, which have been disregarded in the municipality’s final proposal.
A development plan may cover both publically and privately owned land, and may involve obligations for property owners to surrender private land to the municipality for public use. When a development plan stems from a private initiative, the municipality will also demand that the property owners benefitting from the new development opportunities finance the construction of public spaces/facilities serving the area (such as new roads and parks etc.). Private land owners and developers will be required to enter into so called development agreements (Sw. exploateringsavtal), allocating the public expenses among the property owners/developers. These agreements may be difficult to negotiate as the municipalities are often reluctant to make any changes to their template contract formats.
The adoption of a development plan is followed by an implementation period ranging between five to ten years. During this time, the municipality may not alter or repeal the plan without being liable to indemnify any affected property owners. This right to develop land pursuant to an adopted development plan during the implementation period is generally referred to as a building right. Permits are required for demolition, excavation or construction works or altered use of a building, but must always be granted provided that the suggested development complies with the provisions set forth in development plan.
The regulation of use, planning and zoning restrictions on real estate varies from one Canton to another. Federal law only provides for general principles. Each Canton then issues a master plan on zoning and territorial development, as well as rules for the applicable procedure. The Cantonal or local authority, as the case may be, issues a detailed plan providing for the zoning restriction on each plot. Such authority is also competent to authorise any real estate construction or heavy renovation. Only detailed planning and regulations are legally binding for the owner of a plot, as general planning is directed only to the local authorities. General planning can however have an important impact on the right of the owner of a plot in view of the interpretation of the detailed regulations.
In Turkey, there are different kinds of zoning plans and they are regulated by different public institutions based on their type. On the other hand, the local municipalities are regulating the application-zoning plans and these include the necessary details for the construction. Under the zoning legislation, the construction projects must comply with the conditions stated in the relevant zoning plans. Those undertaking a construction projects must obtain a building permit from the local municipality or from the special provincial administration depending the location of the real estate. In order to use a building after the construction is finalized, a usage permit must be obtained from the relevant authority which issued the building permit.
The Brazilian legislation provides a series of rules concerning urban policies with the purpose to better organize urban space.
The Federal Constitution establishes that Municipalities with more than twenty thousand inhabitants must have its Directive Plan approved by the City Council. Such Directive Plan is a basic guidance of the urban policy for the development and expansion of the city.
The so-called City Statute regulates the provisions of the Federal Constitution and establishes the general guidelines for urban policy.
The Directive Plan, in its turns, establishes the rules for the physical development of the city. It aims at directing its growth, avoiding social conflicts, planning its housing, commercial and industrial development.
Aligned with the Directive Plan, the Urban Zoning Law, i.e., the rules of land use and occupation are created for each city. Zoning is a concept conceived by the urbanism field and means to divide a city into zones, that is, to separate a city by specific zones according to the activities developed in each one of them. The main occupation zones are for residential, commercial, mixed (mainly residential and commercial) and industrial uses.
Use, planning, and zoning restrictions are enacted and enforced by each municipality (e.g., city, county or town) through statute. Use, planning and zoning laws affect the use of a property, the standards to which any buildings located on a property must be constructed as well as limits on lot size, building size, height, floor area ratio, number of rooms, parking, and setbacks. If the property is being operated under a permitted use, then such use is considered to be permitted "as of right." Properties which were constructed prior to current use, planning, and zoning restrictions are typically grandfathered into the current code, meaning that they are considered "legal non-conforming" and can remain and, in some cases, be rebuilt to the same extent they were non-conforming following a casualty. An owner of property may apply for a special use permit or variance if compliance "as of right" would cause it undue hardship which, if approved, would allow for additional uses or other non-compliance with applicable regulations.
Although use, planning, and zoning restrictions are primarily shaped by local law, federal law can pre-empt local law.
Use, planning, and zoning restrictions may also be created by contract between owners of interests in real property. These are often found in reciprocal easement agreements and covenants, conditions, and restrictions in connection with planned developments, such as shopping centers and subdivided housing developments where property owners benefit from having the use and characteristics of adjacent properties conform to certain specifications. The agreements "run with the land" and are almost always recorded with in the real estate records. Certain municipalities, such as the city of Houston, Texas have historically relied exclusively on private deed restrictions rather than statute in order to regulate use, planning, and zoning restrictions.
In England and Wales, the use and development of land are regulated primarily by the town and country planning legislation, which establishes a system of "development control" and "development planning" for these purposes.
Development Planning framework: National authorities, each Local Planning Authority ("LPA") and in some cases, neighbourhood bodies, create a hierarchical framework of plans which go together to create the "Development Plan" for the relevant area. Development Plans contain policies as to how land should be used and the types of development that should be permitted or prohibited. At a local level, plans often allocate specific areas or individual sites for suitable uses or types of development. These plans are periodically reviewed and updated.
Development Control framework: Planning permission is required to carry out the "development" of land (meaning the carrying out of building or engineering works on the land or the making of a material change in the use of land). Any person can make an application for planning permission, although in practice, the owner's consent is often required. In most cases a planning application is made to the LPA. Larger projects will often require an Environmental Impact Assessment to be submitted with the application. The LPA (usually the local council, or unitary authority of the area) should determine the application in accordance with the Development Plan unless there are justifiable reasons to refuse it. Applicants have rights to make an administrative appeal against refusal of planning applications; there are also rights for third parties to challenge, in the courts, the grant of permission on limited legal grounds.
Often an applicant will need to enter into a "Section 106 Agreement" with the LPA in order to obtain planning permission. A Section 106 Agreement requires the applicant to carry out works or pay money, or establishes controls on the use of the land, in order to overcome planning objections to the development proposal. Development of the site may also be subject to a development tax called Community Infrastructure Levy, which is charged at local level to pay for infrastructure necessitated by development in the area.
It is possible to carry out some development without express planning permission, for example:
- some changes of use (e.g. between shop and food and drink uses); and
- the carrying out of various works, for example: alterations to existing premises, demolition, or development by bodies carrying out public functions (statutory undertakers).
Heritage and Environmental Controls: There are a number of other controls that protect the historic built environment or the natural environment, for example:
- Listed Buildings: A building which is of special architectural or historic interest can be "listed" by the Government, meaning that any development affecting its special characteristics is subject to obtaining Listed Building Consent.
- Conservation Areas: A wider area which is of special architectural or historic interest can be designated as a Conservation Area – an LPA will need to take this designation into account when determining any planning application within the area.
- Sites of Special Scientific Interest (SSSI): A site of interest for its wildlife or geology can be designated as a SSSI. Consent from governmental body, Natural England, may be required to carry out any development on the site.
Major infrastructure projects: There is a separate system of consenting for nationally significant infrastructure projects. The Secretary of State grants consent for a project under this regime by making a "Development Consent Order".
Devolution of Powers to Wales: At the detailed level, planning rules for England and Wales are beginning to diverge due to devolution of powers to the Welsh Government. Processes and requirements for planning applications and other aspects of development planning and control may therefore be different depending on whether a development is proposed in England or Wales.
The regulation of use, planning and zoning restrictions for real estate is effectuated with two types of regulation plans:
- General regulation plans (GRP, in Bulgarian „Общ устройствен план“), which set out the general guidelines of use and regulation and main construction parameters for the territory.
- Detailed regulation plans (DRP, in Bulgarian “Подробен устройствен план”), which determine in greater details the status and designation of city areas and lands, their borders and way of usage, location of infrastructure elements, and prescribe the permissible construction parameters (such as building height, lines, distance, location, green space zones and others). The prescriptions of the DRP are always within the regulation parameters, provided for in the GRP.
Buildings on regulated lands may be erected only in accordance with the detailed regulation plans, which have entered into force. In addition, special regimes for land use and construction may be created, which are in deviation of the prescriptions of the DRP, for territories, subject to special territorial protection (cultural properties, sport facilities and others specified in law). The regulation of the sea side, military zones, areas/objects with national and regional importance and others are subject to a special set of rules.
The GRP and DRP are adopted by municipal administrative bodies. Before entering in force, GRP are subject to mandatory consultations with the public, whereas DRP are subject to announcement and publication and only interested parties (for example affected private land owners and investors) may submit objections against the proposed DRP. Both types of regulation plans may be subsequently amended, by way of exception, in specific cases numbered in law.
For the construction of each permanent building the owner of the land or the investor must obtain a construction permit. New buildings may be used only after verification and review of the construction permit and the other related documents by the competent administrative bodies.
In order to establish the regulatory regime for a certain land, the investor/owner needs to check in the local municipality the provision for its plot under the GRP and the DRP. These plans contain the information regarding permissible construction parameters, way of usage and borders of the property.
The planning status of a property is determined by various documents, including (i) the local planning documents (Plans Locaux d’Urbanisme) applicable to the city and the area where the property is located and (ii) the various plans developed in parallel, when appropriate, for the prevention of specific risks and hazards or environment protection such as the plans for prevention of technological or foreseeable natural risks, noise zones, earthquake zones or public easements for the protection of natural or cultural heritage or for the use of energy resources.
If the property consists of land on which a building is to be built or on which a building is to be demolished and rebuilt or extended or renovated, a demolition permit and/or a building permit will have to be obtained. If the property consists of land to be divided into several plots with a view to erecting constructions on these plots, a lay-out permit will have to be obtained, it being specified that all those can be treated in one overall process.
For almost every building project and major change of usage a permission is necessary, which has to be issued by the local authority. The competent authority has to review, if the planned project is in accordance with a patchwork of federal law as well as state regulations.
The federal legislator has the competence to issue the legal framework for zoning and planning restrictions. As the municipalities are closer to the local conditions, it is their obligation to use that legal framework and issue a structure and a development plan.
Structure plan (Flächennutzungsplan): Within the structure plan the municipality outlines the allowed use of real estate within their territory. They can set the approximate allowed use of the real estate, thus this plan is in general designed for administrational use and not legally binding.
Development plan (Bebauungsplan): This plan is more relevant for construction projects, as it is legally binding and the allowed use for every plot is determined by the municipality. The municipality can choose between around ten different area types, which are given by the federal legislator. Important area types are manufacture areas and industrial areas, it is also possible to set out an area where the only allowed usage of real estate is buildings. The allowed usage of every area type can be found within the regulation of usage of real estate (Baunutzungsverordnung), hence under certain circumstances deviations are possible. Furthermore the maximum dimensions of a building project can be determined in a development plan.
It falls within the competence of the state legislator to set out the legal framework regarding the technical requirements for buildings and the progress of issuing a building permission, therefore it differs slightly in every state. For example there are regulations regarding the distance between buildings, fire prevention, and the construction of roofs, existing.
The states are also competent to issue the legislation regarding the protection of heritage. If the construction project affects a monument protected by that legislation, the project needs to be adapted.
The requirements above are applying to most of the building projects. Larger project may need an additional assessment of the environmental impacts to be permitted.
Some projects with heavy environmental impacts are excluded from the progress above and find their own regime within the Bundesimmisionsschutzgesetz.
Government leases contain conditions stipulating permitted uses of the land. Construction on the lot of land will also require a developer to seek an Occupation Permit, which will contain conditions restricting the authorized use of the building. If a new owner or developer wishes to change the authorized use of the building, he or she may apply to the Lands Department for approval. Moreover, developers may also need to obtain approvals from the Town Planning Board if the land lot is not initially zoned and intended for commercial purposes.
Anyone thinking of investing in real estate in Spain must bear in mind the existence of a complex system of laws and regulations adopted by the State, the Autonomous Communities and the Municipalities related to urban development, i.e. the transformation, construction and use of land.
According to the Spanish Constitution, the Autonomous Communities hold exclusive powers with respect to planning, meaning that they are entitled to approve laws and regulations on this matter that will have to be complied with by the Municipalities when approving their respective urban development regulations. Regional laws and regulations on planning, amongst others, govern types of zoning plans, land classification, uses of the land, rights and obligations of owners of the land subject to zoning procedures, assignment of land in favour of the Municipality, and construction licences. However, although the Spanish State does not hold any powers with regard to planning matters, due to the fact that they affect ownership rights, it has passed legislation on ownership and valuation of land. In light of the provisions established in both the laws and regulations approved by the Autonomous Communities and the Spanish State, the Municipalities approved plans governing zoning and planning matters within the boundaries of their territories.
Municipalities are entitled to define the classification and qualification of their land in the terms established in the regional laws and regulations. The General Municipal Plan is the regulation which establishes the classes of land and the possible uses. The General Municipal Plan is initially and provisionally approved by the City Council, but it is finally approved by the Administration of the relevant Autonomous Community where the Municipality is located. The inclusion by such General Plan of a certain plot within a category of land is of tremendous importance from the perspective of the rights held by its owner as regards its urban development use, especially in respect of the construction of buildings on such plot. In general terms, the land can be classified in three categories:
- Urban land: (suelo urbano) this is land which has already been built upon and is integrated into the urban area, with all the basic zoning services (mainly roads, water and energy supply and sewage systems) or may be built upon or transformed as it has the urbanisation infrastructures and equipment necessary for its corresponding urban development use (i.e. access, water supply, drainage and electricity supply). For land to be granted this category it has to be urbanised beforehand so that basic services can be provided thereto and it can be classified according to the General Plan. Usually, the General Municipal Plan will establish the uses and constructing parameters applicable to urban land. Otherwise, the Municipality will have to approve regulations further implementing it and, where necessary in this class of land, to adopt decisions to redistribute ownership rights and assign responsibilities, as well as authorising the urbanisation measures required for the implementation of basic zoning services.
- Land suitable for urban development (suelo urbanizable): land considered necessary by the Municipality to guarantee the growth of the population and economic activities. This land does not bear any zoning services and is not considered "solar", that is, land suitable for urban development. In order to transform this type of land into urban land, the Municipality will have to approve regulations implementing the General Municipal Plan, approve decisions to redistribute ownership rights and assign responsibilities, as well as authorising the urbanisation measures required for the implementation of basic zoning services.
- Non-buildable or rustic land (suelo no urbanizable): this is land which in general cannot be built upon due to it being subject to special protection rendering urban development impossible or unadvisable, or due to its agricultural, forestry or livestock value.
The classification of land, apart from conditioning the urban development capacities of the owners, also determines the valuation which must be given by the Authorities to the land for the purposes of establishing a fair price should it be subject to expropriation, with such valuation increasing in line with the increase in its urban use.
Urban development regulations are implemented by the City Councils via the granting of licences, and also by imposing the corresponding fines when a party infringes any urban development regulation or applicable State and regional laws and regulations.
In addition, it is worth remembering that, despite the aforementioned urban development capacities conferred on City Councils, the Autonomous Governments in certain cases usually retain supervisory powers over municipal urban development activities, as can be seen in the definitive approval of certain urban development instruments, or even in the imposing of substantial fines.
Construction-related local licences and responsible declarations
Construction activities are subject to supervision by the relevant Municipality. In the event of significant construction works, these would be subject to the granting of the so-called works and first occupancy licences. Where construction works are considered minor, instead of being subject to the granting of construction licences, a responsible declaration or notification to the Municipality would suffice. Both regional laws and regulations and local regulations govern construction licences and responsible declarations or notifications.
Where construction licences are required, prior to commencing the relevant works, the interested party must obtain the works licence. This is the licence that will establish the construction parameters applicable to the relevant project and will verify the project's compliance with the provisions established in the applicable zoning laws and regulations. In order to obtain this licence, it is necessary to present a construction project signed by an architect and approved by the corresponding professional association, to pay the corresponding taxes, as well as, where applicable, to provide sufficient guarantees (bank guarantee, etc.) ensuring the execution of the works. If the applicant complies with the requirements established in the applicable laws and regulations for the granting of a works licence, the Municipality is not authorised to oppose such licence.
Once the construction works finalise, a first occupancy licence must be obtained. The purpose of the first occupancy licence is to verify that the works have been carried out in the terms of the previously granted works licence. Generally, the granting of such licence is preceded by an inspection of the building by the technical services of the City Council.
In the event of minor works, the interested party must file a responsible declaration or notification related to the works to be carried out, stating that they comply with applicable laws and regulations. Depending on the scope of works and the relevant Municipality, the works can be commenced after filing the document or after a certain period of time if the Municipality does not oppose them. In any event, the Municipality is entitled to inspect the works and adopt any measure to restore legality, as the case may be.
It should be pointed out that such licences and responsible declarations are required from the owner of the property and, depending on the case, also from the property's occupants, such as, for instance, tenants of office buildings or retail units. Should any person or entity carry out any works or activities without previously having obtained the corresponding licence, the City Council may impose a fine, as well as take other urban development-related measures (such as, for example, ordering the suspension of the activities or works carried out without a licence, declaring the closure of the building or premises, etc.)
General activity-related authorisations, licences and responsible declarations
The uses of a construction are subject to the granting of an environmental authorisation, an environmental or activity licence (the name changes depending on the Region) or other type of permit (if the activity does not cause pollution but the Municipality exceptionally considers that it should be subject to a licence) or to a notification or responsible declaration, depending on the level of pollution to be caused by the activity in question. Environmental authorisations are granted by the relevant Autonomous Communities in those cases where the activity causes high pollution and must be obtained prior to any construction licences. Environmental licences and other types of permits are granted by Municipalities and must be obtained prior to, or at the same time as, the relevant construction licences. If a responsible declaration or notification is required, it must also be filed with the Municipalities.
Generally, environmental/activity licences establish the parameters which the activity must comply with from an environmental legislation perspective, and concerning the fire protection and health and safety conditions of the building according to the use for which the building was constructed. Prior to commencing the relevant activity, the initial control or operating licence must be obtained, evidencing that the activity is fully compliant with the conditions and obligations established in the previously granted environmental licence. Afterwards, periodic controls and renewal of the licence must be carried out. Any amendment of the activity is subject to the granting of a new environmental licence and subsequent initial control. In those cases where the activity does not cause pollution but exceptionally the Municipality subjects the activity to the granting of a permit, prior to commencing the activity, an operating licence will have to be obtained.
The entity carrying out the activity is the entity obliged to obtain the above-mentioned authorisations, licences and permits or to file the relevant responsible declaration or notification. Failure to obtain them is considered an infringement of the applicable legislation subject to sanctions that include, amongst others, substantial fines and total or partial, final or temporary, suspension of the activity or total or partial seizure of the premises.
Specific activity licences and authorisations
In addition to the above general activity/environmental licences, depending on the sector, the activity may also be subject to additional licences and authorisations to be granted by the State Administration or the Autonomous Communities. For instance, some Spanish Regions require the granting of a commercial licence for the opening of large retail premises such as malls.
State governments have the exclusive authority to make planning laws and regulations to govern and regulate physical planning and development of the state and to grant permits, licences or approvals for any construction or development within the state. No construction can be carried out on any land without obtaining a building approval or development permit and to do so, an applicant is required to submit a copy of the proposed building plan and structural drawings, as well as evidence of title to the property.
In many states and especially in the urban areas, the government has established zoning regulations that specify the nature of developments that can be carried out in particular areas.