The Government of the Canary Islands, in agreement with the Cabildo Insular de La Palma and the municipalities affected by the volcanic eruption, will notably open their hand in the requirements to build houses destined to replace the destruction of residential buildings caused by the magmatic event in the Cumbre massif Old. The draft of the decree-law prepared by the Ministry of Ecological Transition of the Government of the Canary Islands, to which this newspaper has had access, states verbatim that the reconstruction of houses similar to those destroyed by the volcano “may be carried out on any plot that is classified as urban land, rustic land for settlement, common rural land, rustic land for agricultural protection and rustic land for landscape protection, regardless of the determinations applicable to said plot in the management of natural resources and the territory and in urban planning”. It must be remembered that the urban planning regulations of the Islands conceptually prohibit residential use on rustic land, except in the specific category of rural settlement, and with limitations in this case.
The State gives the green light to the draft of the urban planning decree-law after the eruption
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With this proposal, the Executive homologates the possibility of building replacement housing with the option already included in Law 14/2019 on territorial planning of tourist activity on the islands of El Hierro, La Gomera and La Palma, popularly known as Law de Islas Verdes, which allows construction on rustic land, but reserved in this case for tourist properties. For the replacement of houses destroyed by the Cumbre Vieja volcano, land categorized as “protected natural spaces, those included in the Natura 2000 Network, plots destined for the public domain and those that may be affected by risks of any nature according to the Insular Ordination Plan or the Flood Management Plan”, can be read in the draft. Curiously, this limitation also affects developable land, as the Executive considers that “it is not the subject of this regulation, insofar as the reconstruction of a home or establishment on a plot included in the sectors of this type of land may jeopardize the future planning in planning instruments.
At most, the buildability of the replaced property
According to the articles of the decree-law prepared by the Government, which will be valid for the municipalities of El Paso, Los Llanos de Aridane and Tazacorte, “the owners and owners of habitual residences, in a legal situation or assimilated to it, destroyed or structurally affected by the volcanic eruption that occurred as of September 19, 2021, may request a license for construction and reconstruction up to a maximum equivalent to the buildability of the replaced property, with the same use that was developed in it, and adapting to the typology of the environment in which the plot is located”, indicates article 4 of the document, which in turn includes the possibility of rebuilding the houses “on the same plot in which they are located, if it is materially possible”, although construction is prohibited on the lava flows of the volcano. From there, the text focuses on the options most cited above, which allow the replacement of homes in different categories of rustic land, although with the exception of using “the least fertile area” of said land for this.
In the case of those buildings that at the time of being destroyed by the volcano were in a legal situation of out of planning (the same, on the other hand, of the residential building on rural land), the maximum height of the replacement property in urban and rustic settlement land “will be two stories, without being able to exceed the one that the affected house had, if it is smaller”. In the rest of the rustic land categories, the maximum height will be one floor, although the draft clarifies that “these parameters may be altered to comply with the regulations on habitability conditions.”
The construction of new homes to replace those destroyed may be carried out on any plot not included in the lava flows from the volcanic eruption in respect of which the residents of El Paso, Los Llanos and Tazacorte prove that they are the holders of any subjective right, obviously including that of property. It even offers the option of obtaining land for those affected who are not owners of available rustic land, through the following formula: “They may request the exchange of patrimonial real estate or public patrimony of the land owned by the corresponding municipalities with the plots where they will be located. the houses”. For these purposes, “the need for the swap consists of the social profitability of aid to those affected by the volcanic eruptions”, according to the draft of the Government decree-law.
The procedure for obtaining a license to replace the destroyed homes will also be agile, in accordance with what is included in the draft of the decree-law. The procedure will be initiated “by request of the promoter of the work accompanied by a basic project or execution project, adjusted to the technical requirements established by the applicable technical and sectoral regulations and the titles or responsible declaration accrediting the ownership of the domain or sufficient right on the corresponding plot”, that is, a standard procedure in terms of obtaining building licences, although it introduces the differentiated element of reserving the final decision on the granting of the license to the plenary session of the City Council within a period of two months from the presentation of the same, with negative administrative silence in these cases.
The draft legal document attributes to the promoters the disbursement of the urbanization costs of the residential building, and thus article 7.1 states that “the promoter must ensure the execution of all the services required by the building to be carried out”. In particular, and until their connection to the corresponding general networks is produced, “the houses must have treatment plants, or individual septic tanks, cesspools being prohibited”, states the draft of a decree-law that the Executive will approve in Council Government in the coming days or weeks. The municipalities of El Paso, Los Llanos and Tazacorte and the Cabildo Insular have urged the Government to carry out this exceptional rule for La Palma.
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