The expiry of urban planning infringement proceedings in the Balearic Islands

In the Balearic Islands, when the Town Hallor the Territorial Defence Agency of the Island Council initiates an urban planning infringement case, the Administration has, by law, ONE YEAR to resolve the procedure and, if it does not do so expressly by means of a resolution, the case will EXPIRE, without prejudice to the possibility of restarting a new one for the same facts as long as the infringement is not time-barred (this issue is dealt with in another article in our blog).

The expiry of an administrative file is intended to avoid an unjustified, indeterminate and eternal delay in the resolution, thus conferring legal certainty in favour of the judicial-legal-administrative system, and for the benefit of the administrative body itself.

Despite the one-year period referred to above for the Administration to expressly resolve this type of files, it is important to take into consideration that the Land Law itself provides for a series of acts that suspend this one-year expiry period. Specifically:

1.- This expiry period will be suspended during the two months granted to the administrator to apply for the legalisation licence.

2.- Likewise, the presentation of the legalisation licence to the Town Hall will suspend the expiry period from the date of presentation until the Town Hall expressly resolves the application or the corresponding administrative silence occurs.

However, in the event that the reinstatement procedure is carried out by an administration other than the municipal administration (Town Hall), which is generally the Territorial Defence Agency of the Island Council (ADT), the suspension will begin on the day on which the interested party or the Town Hall informs it (the ADT) that the application has been submitted, and will be lifted on the day on which one of the following circumstances occurs:

A.- The person applying for the licence, or the Town Hall, formally notifies the investigating administration of the express resolution of the application for legalisation.

B.- The Town Hall expressly notifies the investigating administration (ADT generally) that the corresponding administrative silence has occurred, derived from the lack of response to the application within the legally established period.

C.- When 6 months have elapsed since the date of the start of the suspension without either of the two previous circumstances having occurred, and without the Town Hall having informed the investigating administration (ADT) which reasons of legality prevent the application from being expressly resolved and which reasons of legality prevent the production of administrative silence.

In these three cases (A, B and C), it is ALWAYS recommended to formally communicate any act to the ADT within the framework of the file, as on many occasions the Town Halldoes not do so ex officio, and generally there is no good synchronisation between the two Administrations (ADT-Town Halls), which can be detrimental to the administrated party.

3.- Likewise, the expiry period of one year will be suspended by the presentation of the reinstatement project to the town hall. In this way, the expiry period will be suspended from the date of presentation until the date of expiry of the non-extendable period for carrying out the reinstatement that appears in the resolution initiating the reinstatement procedure.

4.- Finally, another act that will cause the suspension of the expiry period will be the request for the report provided for in article 193.1.d)of this law. The limitation period will be suspended from the date of submission of the report request and during the period of one month established for its issue and notification. If notification is made before the expiry of this period, the limitation period shall be resumed on the date of notification. Which report does this paragraph refer to exactly?

This refers to those cases in which the order for the reinstatement of the acts committed in urban planning infringement has been issued or the reinstatement procedure has been initiated by an administration other than the municipal administration, i.e., mainly by the ADT. Thus, once the reinstatement project has been drawn up and, where appropriate, approved, and before submitting it to the local council, the interested party/administration complained of will request that administration (generally the ADT) to issue a report, which will be governed by the following rules:

a.- A copy of the reinstatement project will be attached to the report request.

b.- The purpose of the report will be to ascertain whether the acts or uses that are to be re-established with the project cover all of those that are the object of the urban development infringement file.

c.- The issuing administration (generally ADT) will have a period of one month to issue and notify the report, after which, if it has not been received, the interested party may present the project to the town council.

d.- The issuing administration will notify the report to the applicant and also to the city council for their knowledge.

These causes for suspension of the expiry period dealt with in this article are those established in our Land Law. However, in addition to these legally established causes, we must also include those established in the scope of the Common Administrative Procedure Act, which fundamentally refers to those cases in which a mandatory report is required from another Public Administration, such as, for example, Water Resources, Coastal Administration, Heritage, Roads, European Union body, etc. In such cases, the same criteria would be applied as outlined in section 4 above.

Finally, it must be emphasised that, even if an administrative file of this type has expired, it will be necessary that an express resolution of the Administration itself so determines and, furthermore, and very importantly, the expiry of a file does not prevent a new one from being initiated for the same facts and against the same person, provided that the alleged town planning infringement is not time-barred, since the limitation period for an urban planning infringement is not suspended by the fact that a case of this type has been initiated and, in the event that it is time-barred, this new case would have no further action because the infringement would be time-barred, which does not mean that it becomes legal (but it could not be sanctioned or ordered to be reinstated...).), a matter which will be dealt with in another article.