Restoration of legality and urban planning infringements.

I. Introduction

The purpose of this article is to provide a clear and systematic overview of the legal framework governing urban planning limitation periods in the Balearic Islands. In particular, it addresses: (i) the administrative power to restore urban planning legality, and (ii) the sanctioning power arising from urban planning infringements.

To that end, and without prejudice to the fact that each specific case must be analyzed individually, determining when restoration proceedings and an urban planning infringement may be deemed time-barred requires a combined assessment of the following factors:

  • CONCEPTUAL DISTINCTION
  • DATE OF COMPLETION OF THE ILLEGAL WORKS
  • TYPE OF INFRINGEMENT
  • APPLICABLE LEGISLATION
  • APPLICABLE TRANSITIONAL REGIME

II. Applicable legal framework to submit the form

  • Act 9/1990 on Urban Planning Enforcement, of 23 October, of the Balearic Community (LDU).
  • Act 1/1991, of 30 January, on Natural Areas and the Urban Planning Regime of Specially Protected Areas of the Balearic Islands.
  • Act 6/1997, of 8 July, on Rustic Land in the Balearic Islands.
  • Act 2/2014 on Land Planning and Use, of 25 March, for the Balearic Community (LOUS).
  • Act 12/2017 on Urban Planning, of 30 December, of the Balearic Islands (LUIB).
  • Act 7/2024, of 11 December, on Urgent Measures for Administrative Simplification and Rationalization.

III. The dual nature of proceedings

At present, the backbone of urban planning enforcement is set out in Article 186 of Act 12/2017 on Urban Planning, of 30 December, of the Balearic Islands (LUIB). This provision expressly establishes the dual nature of the administrative response, providing that every infringement gives rise to two separate and autonomous proceedings:

  1. Proceedings for restoration of urban planning legality: aimed at remedial authority. Their sole purpose is to restore the disturbed legal order. They are not punitive in nature but restorative: they seek to “repair the harm” through legalization or demolition/cessation of the incompatible action.
  2. Sanctioning proceedings: relating to punitive authority. This is the Administration’s power to punish the infringing conduct. Within this framework, a specific and proportionate sanction is determined for each type of infringement.

This distinction is essential, as it confirms the coexistence of two actions based on different legal grounds, whose limitation and lapse periods operate autonomously and independently, as detailed below.

Consequences of non-IV. Act 9/1990 on Urban Planning Enforcement, of 23 October, of the Balearic Community (LDU)

With regard to the LDU, the legislature established a single general limitation regime for all actions carried out without the required enabling title.

Specifically, Article 73 LDU provided that building works carried out without a licence or enforcement order, or not in compliance with the stated conditions, would become time-barred eight years from the date of full completion of the works.

However, for urban planning infringements committed on land classified by the relevant planning instruments as green areas, public open spaces, general systems, roads, public facilities, specially protected natural areas, historical-artistic monuments, and listed buildings and complexes, a regime of non-limitation applied.

It should be noted that the LDU did not distinguish between proceedings for restoration of urban planning legality and the limitation regime for infringements, as later legislation does.

V. Act 2/2014 on Land Planning and Use, of 25 March, for the Balearic Community (LOUS)

The entry into force of LOUS marked a significant regulatory turning point by expressly distinguishing between the limitation period for urban planning infringements and the time limit for exercising the power to restore urban planning legality. However, LOUS’s deficient structure and terminology—constantly mixing concepts such as protection of urban planning legality, restoration of the disturbed legal order, and reinstatement of altered physical reality—made it necessary to redraft the entire content of this title, as explained in the following section.

A) Restoration of urban planning legality:
Specifically, Article 154.2 LOUS established the cases in which this could be required. See:

Time limit for exercising the power to protect urban planning legality.

  1. Interim or final measures for the protection of urban planning legality and restoration of the disturbed legal order provided for in this chapter may only be validly adopted while the actions are ongoing, under execution, being carried out, or in development, and within the eight years following their full completion.
  2. There shall be no limitation period for the adoption of measures to protect urban planning legality and restore the disturbed legal order in respect of:

    a) Acts of urban land subdivision on land classified as rustic land.
    b) Acts or uses that, at the time they are carried out, are on protected rustic land and are expressly prohibited by territorial or urban planning regulations.
    c) Acts or uses affecting listed assets or spaces, parks, gardens, open spaces, public infrastructure, or other land reserved for public facilities.

From the above, it follows that restoration proceedings could only be adopted within the eight years following completion, provided that they did NOT concern acts of urban subdivision on land classified as rustic land; acts or uses that at the time of execution were on protected rustic land and expressly prohibited by territorial or urban planning regulations (DOUBLE REQUIREMENT); or acts or uses affecting listed assets or spaces, parks, gardens, open spaces, public infrastructure, or other land reserved for facilities, as these were subject to a non-limitation regime.

B) Limitation period for urban planning infringements:
Article 179 LOUS provided that the dies a quo for calculating the time limit was the date of full completion of the acts constituting the infringement, which could vary according to severity:

  • Minor: 1 year
  • Serious or very serious: 8 years

Key point: even if the infringement may become time-barred (and, therefore, the possibility of imposing a sanction lapses), restoration must be analyzed separately, since non-limitation scenarios may operate independently.

VI. Act 12/2017 on Urban Planning, of 30 December, of the Balearic Islands (LUIB)

LUIB not only followed the line of strictness initiated by LOUS, but was also enacted with the intention of correcting LOUS’s deficient structure.

In this regard, the current Act achieves essential terminological clarification, definitively separating the nature of proceedings and simplifying the non-limitation framework.

A) Evolution of the non-limitation regime:

  1. Restoration of urban planning legality (Article 196.2 LUIB, original wording):
    This provision declared that the action to restore urban planning legality was not subject to limitation in two cases:

    a) Acts or uses that were illegal or not permitted when carried out on land classified as rustic land.
    b) Illegal or non-permitted acts or uses affecting assets or spaces listed in municipal planning, or declared of cultural interest or listed, as well as parks, gardens, open spaces, public infrastructure, or other land reserved for facilities.

Thus, unlike LOUS, Article 196.2(a) LUIB applied a non-limitation regime for adopting measures to restore altered physical reality NOT ONLY in respect of illegal acts or uses carried out on protected rustic land, BUT ALSO those committed on ordinary rustic land.

  1. Restoration of urban planning legality (current wording):
    The recent Act 7/2024, of 11 December, on urgent administrative simplification measures, has introduced a paradigm shift by narrowing the non-limitation regime.

At present, restoration action is once again subject to a time limit on ordinary rustic land, while non-limitation is maintained only for acts or uses carried out on Protected Rustic Land, which amounts to a substantial adjustment of the previous regime.

B) Limitation of infringements:
As regards limitation periods for urban planning infringements, Article 205 LUIB maintains the limitation periods inherited from LOUS, calculated from the day on which the acts constituting the infringement are definitively completed. This is without prejudice to the possibility of adopting at any time measures to restore altered physical reality in the cases provided for in this Act.

VII. Conclusions

Regulatory evolution in the Balearic Islands shows a clear trend toward a systematic separation between the limitation regime for urban planning infringements (sanctioning power) and the temporal regime governing the power to restore urban planning legality.

This duality is not merely terminological; it has decisive practical consequences: an infringement may become time-barred and the possibility of imposing a sanction may be extinguished, without this automatically determining the loss—or, where applicable, the survival—of the restoration power, and vice versa, depending on the applicable legal framework and legally qualified scenarios.

In this context, determining whether an action on rustic land is time-barred requires a case-by-case and technically structured analysis, which must necessarily start from:

(i) reliable determination of the date of full completion of the works (dies a quo);
(ii) planning classification and zoning of the land—with particular attention to the distinction between ordinary rustic land and protected rustic land; (iii) the type of act (building, use, subdivision, or other actions) and its possible inclusion within scenarios of special legal significance; and (iv) identification of the applicable legislation, together with the corresponding transitional regime.