AUAN submits objections to the Decree to regularise houses in Anadalucia
Those affected will be dead before their houses are regularised
After a panel discussion which took place on the 20th of this month with political representatives, including various Mayors of the Valley of Almanzora, as well as various representatives of local businesses, residents, ecologists, architects, lawyers, local functionaries, planners and other social agents, AUAN has present objections to the draft Decree that the Junta de Andalucia claims will “regularise” illegal houses in Andalucia. According to Maura Hillen, president of AUAN: “In the objections we have tried to take into account some of the opinions expressed during the round table and we think that the objections represent a little bit of social consensus in the Valley of Almanzora”.
Partly as a result of the round table, AUAN considers the draft text to be insufficient, in parts ambiguous and contradictory, and includes some clauses of dubious legality in their opinion. According to AUAN sources, whilst it contains some good things, in other cases in makes the problem worse, and in addition the mechanisms outlined in the draft will be very difficult to put into place in practice, running the very great risk that a large number of those affected will be dead before their properties are regularised – if they are regularised.
AUAN advocates for a change in the LOUA (and possibly state law), as the only real way to solve the problem. They stress the need to provide services such as water and electricity to avoid the demolition of homes purchased in good faith, some with local building permits, to protect the human rights of the homeowners.
Finally, AUAN has requested a meeting between the participants in the round table and the Minister of Public Works and Housing before the decree is approved in order to allow for “dialogue, transparency and participatory democracy”.
Note: AUAN is a registered association. It receives no public funding. All Independent research and the activities of the organisation are funded by the members (homeowners) and private donations. www.almanzora-au.org
TEXT OF OBJECTIONS PRESENTED BY AUAN 25.07.2011
FIRST: THE HUMAN FACTOR: Firstly we would like to highlight that this issue does not revolve around sterile theoretical and philosophical debates; on the contrary, this issue is one of great social, economic and human importance. We consider that it represents a grave malaise in the urban planning and housing system in Andalucia, which manifests itself, we understand, in some 300,000 irregular homes. These homes, in turn, possibly represent hundreds of thousands of homeowners, and also a huge investment of money. This malaise impacts heavily on foreign investment, and also has a serious negative impact on the social and economic fabric in many parts of Andalucia.
We believe that it is obvious that in a modern and democratic state of law it is impossible to knock down so many houses, many of them bought in good faith by third parties. Therefore, we believe that there is no other remedy but to provide a solution to these houses where possible.
The problem is large, and big problems need big solutions, but we suggest that in our opinion the draft of the Decree that has been presented to us, is nowhere near a big solution.
We consider that the problems of these houses will not be resolved with a mere regulation, which is what the Decree in essence is, in addition we consider that it is too complex, ambiguous and contradictory, making the practical solution of the problem more difficult, and that it contains some provisions of doubtful legality. In our view the decree is not a suitable instrument to resolve problems of this kind.
SECOND: URBAN SUBDIVISIONS: In many cases irregular urban land divisions have occurred on non urbanizable land; and we believe that there is no other remedy but to recognise and regularise these land divisions, especially given that, in practice, these divisions will be very difficult, if not impossible, to undo.
We believe that the regulation of these land divisions requires a change to the basic planning law (the LOUA and possibly the state Land Law). Therefore, the Decree is not an apt instrument to resolve this problem. What the draft does is to make matters worse, when providing, for example, that these divisions must be undone without saying how this can be achieved in practice, that is to say: Which entity undoes the division? Through what mechanism? What is the land title afterwards? (it returns to the original owner, or there is joint ownership?, etc. That is to say, instead of giving more legal certainty, the draft creates more legal uncertainty.
THIRD: INCORPORATING IRREGULAR SETTLEMENTS INTO PLANNING: It is true that the draft eases the growth limits established in article 45 of the POTA, which is a plus. However, as we have said, it exacerbates the problem of urban subdivisions; and, additionally, the regularisation of these houses seems to pass through the normal planning procedures, that is to say: reclassification of the land via planning innovations; systems of cooperation or compensation; urbanisation project; reorganisation of land parcels, licenses; etc;. All at a cost that is not only for the town councils but for the homeowners; and when you add the time of the whole procedure it could take 10 to 15 years to complete the regularisation process (if carried out). During the passage of this time we think it no exaggeration to say that we believe that many of the homeowners in these settlements, who are now pensioners, will be dead before their homes are regularised.
Amongst the practical questions that arise: the great difficulties that the Town Councils have, in the current economic climate, to fund the cost of the planning amendments; the great difficulty in co-ordinating a large number of homeowners (executing the urbanisation plan); the difficulty finding land for general systems and services; the difficulty deciding the limits of the execution units; etc, etc.
That is to say, apart from what we have said in relation to article 45 of the POTA, the decree does not provide solutions, and in practice we consider that it is probable that it condemns these buildings to a type of social, economic and legal “limbo”.
FOURTH: AMBIQUITY IN THE CLASSIFICATIONS: Not only is the draft unable to provide solutions to the problem, we also believe that it contains certain ambiguities. For example:
- The generic classification of houses: The draft should specify in greater detail and clarity how to distinguish the three kinds of irregular housing: (1) isolated dwellings, (2) homes in settlements, (3) scattered rural settlements. The draft allows for the possibility that isolated dwellings are grouped (it is not specified how many, nor their characteristics) and distinguishes them using the criterion of the need for collective urban services, ie they do not need urban services as opposed to houses grouped in settlements, that do. Yet we do not understand how it is decided that some houses need urban services and others not need them (these unspecified urban services). The concepts to decide when we have a scattered rural settlement are also ambiguous and given to different interpretations: the draft indicates that housing in scattered rural settlements is linked to rural life with features that should be preserved. But the draft should contain objective, detailed and precise criteria to distinguish clearly between these three types of housing. Otherwise we run the risk of encouraging legal uncertainty and the use of discretion if not arbitrariness.
- Housing in settlements disconnected from the urban nucleus: Another important ambiguity is article 12.6 of the draft, when speaking of settlements with land consolidated by building of more than 50%: The question is more than 50% of what? That is to say, what figure is 50% of what other figure? Are we speaking of meters of construction over total meters of land? Or are we talking of parcelas of land with buildings as a percentage of parcelas of land without buildings? And in the last case, does the size of the parcela matter? The other question is how are the boundaries of the land being urbanised determined to calculate this percentage?
- Second transitional clause: It is difficult to understand what this means and the wording needs to be improved. That is to say, does it say that houses in settlements can be considered as houses assimilated as fuera de ordenacion whilst the regularisation of the settlement is not yet approved, if the “proscription” of action to restore planning legality can be proven?
FIFTH: PROVISIONS OF DOUBTFUL LEGALITY: The draft of the decree contains some provisions of dubious legality, such as:
Provision 7.6 which indicates that the classification of a house as assimilated as fuera de ordenacion does not grant any rights in criminal or administrative proceedings. This is a surprising provision that, in any case, cannot be part of a regulation, nor is it within the competency of the autonomy, and is also likely to be unconstitutional.
The provisions regarding inscription in the Registry of Property, because they do not fall under the purview of autonomous regulation and contradict state law.
SIXTH: HUMAN RIGHTS – SERVICES AND DEMOLITIONS The draft stipulates that houses assimilated as fuera de ordenacaion will not be given an occupation licence but this creates problems in terms of the provisions of the LOUA, which indicate that the utility companies must demand a licence of occupation for the connection of services. On the other hand, the draft indicates that “exceptionally” it is possible to authorise specified services when, amongst other things, “it does not induce the formation of a nucleus of population”. This is not understood, since some of these houses (if not the majority) are grouped, and we all understand the difficulty of determining when the “risk of creating a nucleus of population” exists.
AUAN considers that the lack of access to these services could be violating the human rights of the residents in these houses, and that these rights should be taken into account in the draft, at least as a transitional measure, whilst the regularisation process takes place.
We also consider that there currently exits the risk of demolition of some houses acquired in good faith, including those with licences, without the owners having the right to prior, real and adequate compensation, that is to say, also possibly infringing their human rights. The draft does not take into account: which must be recognised in Law (the LOUA or similar); the establishment of a moratorium on proceedings that could result in demolition (for example via an additional provision).
SEVENTH: Given the complexity of this issue, its importance, and the short period of time that we have had to prepare these allegations, we retain the possibility of improving them. In additions we are interest in a future meeting with the Ministry to discuss these and other points before the draft of the Decree is approved, for the sake of dialogue, transparency and democratic participation.