It has just reached its seventh anniversary, but local councils have few reasons to celebrate the event. On January 20th, 2003, the ‘Ley de Ordenación Urbanística de Andalucía’ came into force, a land law which was designed as a response to the cases of town planning corruption which were then beginning to be revealed on the Costa del Sol. Seven years later, the weight of the LOUA is felt upon the backs of almost all the municipalities in Malaga as a way of restricting their town planning policies at the same time as empowering the Guardia Civil and the prosecution authorities to take legal action against mayors for actions which were not crimes seven years ago but could now be penalised by a jail sentence. What has happened in that time? How has a situation arisen which even endangers the functioning of the democratic institutions, as has just occurred in Carratraca? In this article, experts in town planning law answer questions about the much-feared LOUA.

They all agree that small municipalities have been affected most by the regulations, especially with regard to land which is not zoned for building, i.e. the countryside. Before the LOUA came into force, owners of plots of land in rural areas could obtain permits to build a house with little difficulty. The law allowed the construction of a house on plots of 2,500 square metres with links to irrigation. “Nearly everyone who wanted to build a house in the countryside was able to do so at that time, and it wasn't an offence”, says Manuel Jiménez of the Juan Ramón Fernández-Canivell firm of lawyers. The councils granted permits to build toolsheds, knowing that the licence would even be used to build a villa with its own swimming pool.

With the arrival of the LOUA, the legislation took a radical turn and banned any type of building on land not zoned for construction, with the only exception being that associated with a farm or agricultural business, although even then it imposed conditions with which it was very difficult to comply.

Houses which were built illegally before 2003 are not affected by the law - unless they were built on protected agricultural land or public land subject to flooding - but those constructed afterwards are. “And they built thousands”, says Manuel Jiménez.

The mayors and residents of small and medium sized villages really didn't understand why the law had to prohibit what had almost become a culture, something personal to them: having a house in the country. “The councils weren't aware that they were committing any offence. It's like putting someone in prison for double parking, when it is something that everybody does”, explains Francisco Carrera, of the planning department of the College of Architects of Malaga.

In his opinion and that of other experts, the Junta de Andalucía drew up the LOUA in a hurry, without thinking about the consequences which could arise, and concentrating only on the fact that the property 'boom' was scattering hundreds of thousands of houses on the hillsides. “The law was cooked up by ten people without coordinating it with the rest of the State and regional laws. Even the Andalucía Consultative Board sent it back, asking for it to be drawn up properly”, says another of the experts.

The Andalusian government has a different opinion. The Housing and Land Department's delegate in Malaga, Josefa López, maintains that other autonomous communities have laws which are very similar to this one and that the problem doesn't lie with the law “but with the mayors who have not complied with it “. “Many councils have ignored the LOUA and the prosecution authorities haven't acted very quickly, which is why it is now, seven years later, that we are seeing the consequences”, she insists.

For its part, the College of Architects considers that the application of the law has been excessively severe in Malaga compared with other provinces. “In the last few years there have been about one thousand applications to try to build a house on land which isn't zoned for building but which does fulfil the requirements of the LOUA, but I believe only two of those applications have been approved. Genuine farmers have not been able to build their house next to their fields, because the Junta has been strict to the extreme”, says Francisco Carrera. The result: councils which do not dare to give permissions and land owners who end up building their property in the knowledge that the small municipalities have neither the resources nor the enthusiasm to exercise even the minimum town planning discipline.

Josefa López responds to this by saying that many more houses have been authorised on rural land in recent years, and an inventory is currently being drawn up of buildings in La Axarquía and elsewhere in Malaga province, such as Mijas, to see what can be made legal and what cannot. “Not everything which exists on non-urbanisable land is illegal”, she warns, but she cannot confirm what the courts are likely to decide with regard to the demolition of buildings which were constructed illegally. “They are not going to knock down thousands of homes in a municipality, but it is true that the judges are issuing demolition orders”, she adds.

And it is because the Guardia Civil officers and the prosecution authority are determined to take these situations through the legal system that cases of town planning corruption have come to light, painting many mayors of rural municipalities as criminals even though they have done no more than turn a blind eye.

According to the people we spoke to, the Andalusian government should establish some specific regulation for rural land (like those which exist in Galicia and the Community of Valencia) which would be more flexible and in keeping with reality of places such as the hillsides of the Axarquía, where more than ten thousand illegal homes have been detected. According to some sources, the Junta de Andalucía is studying this possibility at an internal level. However, the Housing delegate denies this and insists that “the spirit of the law is that it is what it is and we are not going to touch it”.

Limits

But the LOUA has also fallen like a deluge of cold water on those municipalities whose hopes for income depended on their town planning. The obligation to draw up and carry out urban plans (PGOU) which are adapted to the LOUA made many councils set to work to comply, but they soon encountered new limits imposed by the Andalusian government to combat plans for disproportionate growth. For example, with the introduction of the Andalusian ‘Plan de Ordenación del Territorio’, the regional government stipulated that municipalities may not grow by more than 40 per cent of the existing urban land, and their populations may not increase by more than 30 per cent in eight years.

These limits didn't worry large municipalities too much, but proved suffocating for the small ones to such an extent that some decided to give up and completely abandoned the idea of drawing up a new Urban Plan, says the technician from the College of Architects. “Because of this and other controls which are imposed when plans are being drawn up, hardly any urban plans have been approved in the province. The only exceptions are those of Cortes de la Frontera and Guaro. The councils are fed up with seeing the Junta putting obstacles in the way of everything”, comments Francisco Carrera.

The Andalusian government originally set the date of January 2007 by which time all local urban plans had to be revised and adapted to the criteria of the LOUA, but it was then forced to change its mind and allow a partial adaptation to be carried out by that date, and a provisional review of the plans to avoid the complete stagnation of town planning in some places. A good number of municipalities chose this option, and 15 of them will soon receive approval by the Junta, although others such as Malaga city are continuing to draw up a new Urban Plan. However, there are still about thirty small villages which lack any type of plan whatsoever and they will have to start from scratch.

Social housing

Before the plans are approved, the obligation to reserve 30 per cent of all new land for use as social housing does not apply but this also means that what is deemed to be one of the main benefits of the new law is also not applicable. “After seven years, we can conclude that this has been a failure because it hasn't stopped the construction of illegal properties nor has it encouraged the construction of social housing, which has been left in the hands of private iniatative. In the end, the market is stagnant and no houses are being built, private or protected”, says Carrera.