Entry into force of the amendment of the Land Act 9/2001 of Madrid, for the promotion and recovery of urban development activity

In order to hasten up the administrative authorization procedures that all building executions require, and to reduce the consequent waiting period, Act 1/2020, of 8 October came into force last 4 November, amending the current Land Act 9/2001, of the Autonomous Community of Madrid. Specifically, the amendment has changed the content of Chapter III of Title IV, now called "Municipal intervention in acts of land use and building".

The measure updates Madrid’s Land Act and gives a predominant role to the responsible statement as opposed to the traditional license granting, and this on the basis of the not very recent Directive 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, relative to the services in the internal market, and subsequent Spanish state legislation, of which the Royal Legislative Decree 7/2015, of 30 October, that approved the Consolidated Text of the Land and Urban Rehabilitation Act, is a direct exponent in planning matters.

The legislative amendment is intended to boost the increasingly deteriorating economic situation by means of the subsequent administrative intervention in the execution of land use and building where state land legislation allows it. In short, it modifies the previous urban planning authorizing regime, which led to very long waiting periods for the execution of planning related activities. Whether or not this is achieved will depend on the efficiency with which the municipal administrations apply the new legislative amendment, taking into account that the Second Final Disposition of Act 1/2020 allows for the corresponding municipal by-laws to be adapted within a year as from 4 November, without prejudice to the provision set forth of the amendment’s direct application once it comes into force.

A shorter list of actions subject to urban planning license is introduced, such as earthmoving works, building execution and land use that require a technical project, total intervention in listed buildings or in buildings that have some kind of environmental or historical-artistic protection, parceling actions except when applying the reparcelization planning implementation system, felling and transplanting that affects stands of trees or shrub vegetation, location of prefabricated houses and similar facilities in any type of land, and works and provisional uses.

As for the actions that will be subject to a responsible statement, a substantial list is included, among which it is worth highlighting the extension, modification or refurbishment works of existing buildings if the general exterior composition or volume is not affected and when a works project is not required; first occupation and operation of new buildings; grouping of land except when reparcelization is applied, fencing; placement of exterior advertising elements that are visible from the public street; or changes in the use of buildings and facilities provided that they do not modify the characteristic use of the building.

It is important, in any case, to point out that works of a lesser entity in the interior of dwellings or premises do not require a license or responsible statement, although they must comply with the relevant authorizations for the removal of waste and occupation of public streets.

License granting procedure has been simplified with respect to the previous regulation, establishing a single 3-month period for the resolution of all license applications, and introducing a negative silence or tacit denial in the event that the resolution period expires without response from the Municipal authorities. This period can be interrupted for municipal remedy requests only once and only within the following month after the application has been filed. Tacit denial must be understood, however, for the purposes of the corresponding appeal, since the public administration’s duty to explicitly respond has not disappeared. Of course, the suppression of the once former positive silence does not favour the spirit of the legislative amendment when trying to help the economic recovery, but it is true that the proper adaptation to the state’s Consolidated Text of the Land and Urban Restoration Act has played its role in the denial sentiment of the administrative silence.

Although submission of the responsible statement immediately enables the interested party to carry out the intended action, as long it complies with the planning regulations, subsequent municipal control is compulsory. In this regard, the amendment provides for a maximum period of three months for said subsequent municipal control to happen, having the interested party the possibility of correcting any defects within a period of ten days. If favourable, the responsible statement file will end with a certificate of conformity.

A question that usually arises, and which is already clarified from the beginning, is regarding the amendment of previous actions already authorized by responsible statements. These will require a complementary declaration.

We can conclude that for both licenses or responsible statements, there will always be a need for municipal control, which must take place within three months as from the request made by the interested party. Although the responsible statement may provide some relief as it allows the activity or work to begin without prior municipal control, this should not give rise to excessive confidence since such control will always take place; and indeed the legislative amendment does not provide any certainty on the Administration’s compliance with its own deadlines.