The penalty procedure

IMG_4076.JPG1 .- The suspension of the work (Article 181 LOUA)

a) Suspension by the mayor of the municipality

For any act that requires a license and is carried out without or against the contents thereof may be carried out the suspension of the building acts to be reported to the sponsor, owner or operator.

[:]The measures to suspension failure can be:

• Removal and disposal of machinery and materials of the works

• Imposing a penalty for successive periods of ten days and minimum amount on each occasion, ten percent of the value of work performed and in any case and at least 600 euros.

• You will notice the prosecution for the crime of disobedience to authority

b) Suspension by the Department of Public Works

You must request the Mayor to mediate prior to cessation of unlicensed works unattended after a fortnight. You can arrange to stay above measures and unlicensed acts of particular gravity:

a) Without the necessary planning instrument

b) Land Division in undeveloped land

c) Acts in undeveloped land or specially protected nature dotacional

2.-Individuals responsible for acts without a license (Article 193 LOUA)

a) The owners, developers, builders, technical personnel directors

b) Members of the administrative organs and public officials who, by act or omission, directly contributed to the production of the offense.

 3 .- Principles of Urban Law reporting penalties

We shall refer exclusively to the sanctioning power without entering the appropriate disciplinary authority practice before the misconduct of public employees.

a) Principle of legality

Regarding sanctioning the principle of legality is outlined in section 127 LPA requiring the sanctioning power is exercised pursuant to the procedure and in accordance with established case law.

b) Principle of Proportionality

Is regulated in Article 131.3 LPA, result is consistent with the jurisprudence, almost unanimously, with demands for the existence of harmony between the means used and the intended purpose. In urban area, case law has many sentences where it refers to the need to impose the sanction is proportionate to the seriousness of the offense.

c) Principle of ne bis in idem »

Is outlined in Article 133 and involves LPA, as stated in the TC Case No 2 / 1981, 30-1-81 (BOE 24-2-81) «no-borne duplication of administrative sanctions and criminal – Where in assessing the identity of the subject, fact and baseless. » In the urban area is given the solution to the dual penalty / punishment in Articles 195.4 LOUA and 274 TR 92.

d) The principle of presumption of innocence.

Although the LPA is considered as the beginning of the procedure, when picked up in Article 137, is really a principle of sanctioning powers. Constitutionally comes 24.2.párrafo referred to in Article 1, the end, as a fundamental right, and that the Constitutional Court repeatedly has understood to apply not only to the criminal sphere, but also to the administration.

The presumption of innocence goes the need for the Administration to carry the burden of proof in order to prove each and every one of the facts necessary to impose a sanction.

 4 .- Types of violations planning (art. 207 LOUA)

a) Minor offenses:

θ undue Providing services by the suppliers

θ execution, implementation or development of acts of amendment or modification of development, construction and installation or construction, or other processing of land use or subsoil, which in turn not require minor technical project, run without the requisite license or approval or in contravention of its conditions

θ Delinquencies during the execution of instruments of planning or implementation, if they had been cured after the first request made for that purpose by the Administration.

b) Serious infringements

θ execution, implementation or development of acts of urban fragmentation on land not have the regime of undeveloped land, development, construction and installation or construction, or any other transformation of the soil or subsoil use, including any amendments or reforms require technical project, running without the requisite license or approval or in contravention of their conditions and they do not affect developments referred to in paragraph 207.4.C) LOUA.

θ Delinquencies during the execution of instruments of planning and execution, had they not been corrected after the first request made for that purpose by the Administration and not to present a very serious infringement

θ The obstruction to the exercise of the functions of the authority inspector situations and not to present a very serious infringement

θ execution, implementation or development of acts of fragmentation, urbanization, building and construction or installation, or any other land use change, which are contrary to or urban planning.

c) Very serious infringements

θ planning on land plots with the regime of undeveloped land.

θ enforcement activities without the necessary planning tool for its legitimation.

The θ classified as serious when they affect:

or undeveloped land specially protected or listed in the littoral zone of influence.

or parks, gardens, open spaces, infrastructure and other reserves for allocations.

Real or spaces or cataloged.

or other structural determinations of the organization under the planning instrument, the development or execution being prevented.

θ Breaches of suspension ordered precautionary measures with the performance of the power of urban legality protection and restoration of civil order disturbed.

 5 .- The sanctions

a) Specific types (Art. 212 to 226 LOUA)

θ subdivisions

o In urban land of 10 to 20% of sales value of the land.

or in land for development, the 15 to 30% of the sale of land

or in undeveloped land, urban plots, from 40 to 80% of the value of land without an amount less than the difference between baseline and the sale of the parcels concerned. Segregation of land size smaller than or equal to the minimum determined as planning, from 20 to 40% of the value of land.

θ in enforcement actions.

or urbanization works, 75 to 150% of the value of work performed.

or Breach of obligations and duties, 600 to 60,000 euros.

urbanization or conservation works and buildings and buildings of special protection from 600 to 60,000 euros.

θ In terms of construction and land use.

or works on land and buildable lots, 50 to 100% of the value of work performed.

or works against urban planning (land referred to in classified as non-developable land, developable and non-sectored and sectored urban unconsolidated), 75 to 150% of the work performed.

Works in reserves or endowments, from 150 to 200% of the value of land or work performed (the largest that is).

or other land use acts from 600 to 90,000 €.

o Occupation, the first use and modification of applications, from 20 to 25% of the value of the building, establishment or facility.

o Information and publicity works from 600 to 6,000 €.


θ in goods and spaces of architectural, historical, cultural, natural and scenic.

or acts with real effect or spaces of architectural value, historical or cultural, whether special protection, from 200 to 300% of the value of the destroyed or affected. If protection is less, from 100 to 150% of the value of the destroyed or affected.

or acts with real effect on space or natural or scenic value.

♣ Of special protection, from 200 to 300% of the value of the work.

♣ In the remainder, from 100 to 150% of the value of work executed.

♣ In trees from 100 to 150% of its value.

Regarding inspection θ acts involving obstruction of the work inspection, between 3,000 and 6,000 euros.

b) General types.

When an offense is not subject to planning specific offense shall apply the following sanctions:

θ For minor infractions, from 600 to 2999 euros.

θ For serious offenses, from 3000 to 5999 euros

θ For very serious infringements, 6,000 up to 120,000 Euros.

c) Destination of sanctions (art. 197 LOUA).

It shall be for the municipality or the Andalusian depending on which body has initiated and terminated the proceedings. The amount has to pay, if any, the administrative inspection. The remaining amount will be integrated into land public property, intended specifically for performances scheduled in facilities and open space within the consolidated city.

 6 .- Aggravating, mitigating and mixed

When in the process of assessing any aggravating or mitigating circumstances shall the fine imposed in an amount of top or bottom half of the appropriate scale, respectively, noting the same in terms of weighting the effect of these circumstances in the overall evaluation of the infringement.

Article 204 of the LOUA establishes that aggravating circumstances include:

a) claim for the commission of the offense, the ownership of a trade or public office, unless the act constituting the same has been made precisely in the exercise of the functional duty of office or office itself.

b) The persistence in the works, performances or uses after the warning of the inspector.

Are extenuating circumstances:

a) The absence of intention to cause such serious damage to public or private interests affected.

b) The voluntary and spontaneous repair of damage.

c) The cessation of work or termination of the activity or use, on a voluntary basis, after a proper warning of the inspector

These are circumstances which, in each case, mitigate or aggravate the liability:

a) The degree of knowledge of the legal and technical rules for mandatory enforcement by reason of the trade, profession or habitual activity.

b) The proceeds from the offense or, if necessary, conducting it without regard to possible economic benefit.

2.7 .- Forfeiture and revocation of the sanctioning procedure

Expiration: 1 year from the agreement of initiation, but may once again begin again if the offense is not prescribed.


• Infractions: Very serious and serious, 4 years, mild 1 years

• Penalties: Very serious and serious, 3 years, mild 1 years

-Alejandro 7 de octubre de 2009