Administrative Silence in Spanish Planning Law: Effects and How to Use It to Your Advantage

The council does not respond. Weeks, months have passed. Silence can mean many things, but in administrative law it has specific and well-established legal effects. Understanding administrative silence can be the difference between thinking you have lost and knowing you have won.

What the law says exactly

Administrative silence is regulated in Articles 24 and 25 of Law 39/2015, of 1 October (LPACAP).

Article 24 LPACAP regulates positive silence in proceedings initiated at the request of the interested party. Article 24.1 LPACAP establishes a fundamental exception in planning matters: positive silence does not apply when recognising its effects would involve the transfer of entitlements contrary to the legal order.

Article 25 LPACAP regulates negative silence in proceedings initiated by the administration of its own motion (such as enforcement proceedings): if the administration does not resolve within the maximum period, the silence is deemed negative, but the interested party may appeal.

In planning permit matters, case law has firmly established that a planning permit contrary to the plan cannot be acquired through positive administrative silence. The Supreme Court has reiterated this in judgments including that of 28 January 2009.

Steps you can take, in order

1. Identify the type of proceedings. If you initiated them (planning permit application, appeal), the silence rule applies. If the council initiated them (enforcement proceedings), the silence is negative but enables you to appeal.
2. Calculate the maximum resolution deadline. For planning permits, the deadline is set by the autonomous community’s legislation. For reposition appeals, it is 1 month (Article 124 LPACAP).
3. If the deadline has passed and there is no resolution, document the silence with the receipt for submission of your application or appeal.
4. If there is negative silence in a reposition appeal, you have 6 months from the silence to file for judicial review (Article 46.1 LJCA).
5. If there is negative silence in enforcement proceedings, the proceedings may have expired. Analyse whether it is appropriate to argue expiry.
6. Never rely on positive silence in planning permits without verifying that the works are compatible with the plan.

Common errors by local councils

Error 1: Failing to resolve within the maximum deadline and then claiming that the proceedings are still alive. If the enforcement proceedings are not resolved within the maximum period, they may have expired.

Error 2: Issuing a resolution outside the deadline without first declaring expiry. If the proceedings have expired, the council must declare this before initiating new ones.

Error 3: Invoking positive silence to refuse a permit already acquired through silence. If the interested party applied for a permit, waited the legal period, and obtained positive silence for works compatible with the plan, that silence has authorising effect.

Error 4: Failing to inform the interested party of the effects of silence. Article 21.4 LPACAP requires the administration to inform the interested party of the effects of silence when communicating the maximum resolution period.

Anonymous real case

Rosa T. applied to the council in Valladolid for a planning permit for a small extension compatible with the general plan. Four months passed without a response. The autonomous community’s legislation set a maximum period of 3 months [CHECK REGULATIONS]. When the council finally resolved by refusing the permit, the deadline had already passed. We argued positive silence: the works were fully compatible with the plan. The administrative court recognised the effects of positive silence and annulled the refusal.

Frequently asked questions

Can I build on the basis of positive silence? Only if the works are compatible with the urban planning scheme. Building on the basis of positive silence for works contrary to the plan is a serious error.

Is negative silence the same as an express refusal? Not exactly. Negative silence allows you to file the appropriate appeal, but it does not produce the same effects as an express refusal.

When does the silence period start running? From the submission of the application or appeal, or from the date on which processing should have started.

What document proves administrative silence? The receipt for submission of the application or appeal showing the date, plus the passage of the legal deadline without a response.

Is there any time limit on positive silence in planning permits? If you build on the basis of positive silence and the council subsequently reviews planning compatibility, you have the general administrative appeal deadlines to defend your position.

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Legal notice: This article is for informational purposes only and does not constitute personalised legal advice. Every case has its own particular circumstances. Consult a professional before taking any action.