THE DEMOLITION OF THE BUILDINGS IN THE RUSTICS LANDS OF ANDALUCIA
Following the news published recently in a local newspaper, the Provincial Courts of Jaén cancelled the demolition of a two storey house and its swimming pool that were built on rustic ground. This house had the circumstance that its grounds invade part of the bank of a river.
There are currently a series of penal judiciary procedures opened all over Andalucía for crimes against the zoning law due to houses built without license on common rural grounds, that is to say, grounds which lack specific protection.
It must be clearly stated that in a procedure for the prosecution of a crime against land planning, the sentence pronounced doesn’t necessary order the demolition of the illegal building. This is due to the fact that demolition is not a punishment held within the penal code in case the owner is found guilty for having started the building process without planning permission. Demolition is thus a compensating measure, a possibility for the jury to evaluate the circumstances of each case in question that will have to be explained once the sentence is pronounced.
Once we have established this, part of the jurisprudence establishes that not demolishing a building in a case in which the Council could have legalized this building by the administrative way; on those population nuclei built on rustic ground and constituted by numerous buildings that pay the common local tax, that have garbage pick up service, water, electricity, etc… that is to say: certain infrastructure with the appearance of a residential area; demolition of illegal buildings in this case would not apply in the court decision. This is due to the fact that it would not be logical nor understandable to reach a judiciary decision in which such an area with different constructions, since the objective of demolition within penal context is to protect and to make a rational use of the ground, little can be done to protect by demolishing one building when there are others around it, as it will not possible to totally recover that space left to its original rural status.
We could therefore conclude by saying that now a days among the multiple rustic areas with buildings without licences on them with the appearance of a residential area in themselves, he line that some sentences are following can be considered as more logic and coherent, since there is the impossibility to repair what was illegally built. This current situation is therefore the result of the Councils and the Andalusian Council in the neglect of their controlling functions on ground use for a long period of time, not having taken the appropriate measures in due time.
But let’s finally take into account that we are talking here about legal procedures against buildings that were not granted building permission. It is something very different to those buildings that were granted building permission despite wrongfully, in places where the General Building Planning would not allow them. These cases belong to the Litigious-Administrative jurisdiction. I will try to state the legal consequences to these cases in next article, although I assure you it won’t be an easy task.
Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)