Flood Risk Management Plan / Urbanistic Consecuences: Restrictions of Use

A.- INTRODUCTION

During the first quarter of 2016, two Andalusian standards were approved that could have very serious consequences for the potential development of those sectors that have not attained the status of consolidated urban land.

We are referring to Floodability Plans, whose approval has gone quite unnoticed but that may entail to the affected areas being reclassified as Non-constructible or, in the event of maintaining their status as constructible land, they may be encumbered with larger urban burdens as preventive measures.

Provided that the appeal deadline expires on the 8th of May 2016, our recommendation is to review the Viewfinder page of the Junta de Andalucía (click here)  to verify if you are affected by the areas in blue. In the event of this being the case, we recommend you to seek professional advice regarding the feasibility of challenging them.

In this sense, NEXOR LEGAL ABOGADOS, through its sister Urbanistic Engineering Firm AJM GESTIÓN Y DESARROLLOS URBANISTICOS is already conducting floodability studies showing that often the applied classification of the land is not the adequate one, which would exclude the land under study from the scope of the standard.

B.- APPROVAL OF THE FLOOD HAZARD MAPS IN ANDALUSIA

On March 8, 2016, the Order of January 14, 2016, was published in the BOJA, the Legal Gazette for Andalusia. This order approved the flood hazard maps and the flooding risk maps in Andalusia for the river basin districts of Tinto, Odiel and Piedras; Guadalete and Barbate; and for the Mediterranean basins.

These maps complement the normative content of the Royal Decree 21/2016, of 15 January, approving the Management Plans flood risk of the inland basins of Andalusia of the river basin districts of Tinto, Odiel and Piedras; Guadalete and Barbate; and of the Andalusian Mediterranean Basin, published in the Official Gazette of January 8, 2016.

C.- LEGAL IMPLICATIONS

The consequences in a sector classified as part of an area at risk of flooding are very significant.

Appendix 2 of the FLOOD RISK PLAN paragraph 2.1. establishes the following “Limitations on land use in a flood area. Criteria to consider territory as non developable. Measures to adapt urban planning” that set important limitations that, in practice, prevent any kind of urban development of residential or commercial land. Succinctly, we list below some of its main limitations:

  1. Urban planning instruments (… ) will acknowledge the rural nature of land described as floodable areas.
  2. In flood-prone areas, building or construction of new buildings will not be allowed.
  3. New urban developments must be located in non-flooded areas.
  4. In urban areas with flooding problems, measures necessary for the defence of the streets of 500 year return-period will be taken.
  5. Flood-prone areas will only be compatible with uses that reduce evacuation. Permitted uses in flood-prone areas to place new population increases are: gardens, parks and playgrounds, always outdoors, on the ground without any enclosure.

As highlighted in the Annex of the said law, the regulation contained therein does nothing but develop the legislative provision already included in the POTA (Spatial Plan of Andalusia), which indicates that this land should be classified as non-developable land under special protection.

Despite the very poor wording of this Annex, of a peculiar ambiguity, we understand that the most plausible interpretation is that which discriminates between consolidated and unconsolidated urban land.  Therefore, regarding:

  1. Consolidated urban land: it is reasonable to think that the legal classification is not modified and that the government should implement all necessary measures to limit the risk of flooding. However, as already indicated, the Appendix is not clear at all.
  2. Building land / unconsolidated urban land. Without doubt, this type of land will be encumbered by use limitations established by decree, whatever the flood risk category (50, 100 or 500 years).  Thus, land affected by, for example, a partial plan that does not have final approval, would be fully encumbered by the limitation of use.

D.- MEANS OF APPEAL.

The deadline for submitting appeals against the Royal Decree 21/2016, of 15 January, approving the Management Plans for flood risk of the inland basins of Andalusia expired on March 22, 2016.

Meanwhile, the deadline for filing an administrative appeal against the Order of 14 January 2016 approving the flood hazard maps and risk flooding maps in Andalusia of Andalusian Mediterranean basins expires on the 8th of May 2016.

E.- AFFECTED AREAS:

The affected areas can be verified quickly and easily in the Map Viewer of the Junta de Andalucía, which you can access by clicking on this link: mapea-juntaandalucia

However, as we have noticed with regard to many sectors, studies taken into account to establish the affected areas are based on data from several years ago. Therefore, they often are offset as they do not consider, for example, infrastructures already existing.

Below described, we include a list of some randomly chosen areas where we can observe they have not discriminated urban areas nor any urban consolidation criteria have been taken into account. The areas identified in blue, with three different intensities of this colour, correspond to encumbrances in relation to flood risk at 50, 100 and 500 years:

 

Málaga Este

Málaga Este

 

Fuengirola

 Fuengirola

 

Marbella Los Monteros

Marbella Los Monteros 

 

Marbella – Banús

Marbella - Banús 

 

San Pedro-Estepona

San Pedro - Estepona

 

Algeciras

Algeciras

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