Planning Violation on a Green Zone or Public Open Space in Spain: The Special No-Limitation Regime

Green zones and public open spaces are categories of land with special protection. Planning violations affecting these spaces have, under many regional laws, a no-limitation regime similar to that of protected natural spaces. Understanding this regime is essential if you are involved in enforcement proceedings relating to a construction or action carried out in a green zone.

What the law actually says

The protection of green zones and open spaces in urban planning has its basis in Article 55 of Royal Legislative Decree 7/2015 (TRLS 2015), which establishes the absolute nullity of acts and plans contrary to green zones and open spaces designated by the planning instrument. Article 37 TRLS governs the valuation of developed land, not the protection of green zones.

Most regional laws establish that actions aimed at restoring planning legality in green zones, open spaces and other public amenities are not subject to any limitation period. This covers both violations committed over public-domain land and those affecting land designated as a green zone in the municipal plan.

However, it is important to distinguish between:

• Public green zone (public domain): publicly owned land designated as a park, garden or public open space. The restoration action is not subject to any limitation period under almost all regional laws.
• Private green zone in urban land: privately owned land designated as a green zone in the planning instrument (for example, a communal garden in a residential development). The regime may differ. [CHECK THE LEGAL POSITION FOR YOUR AUTONOMOUS COMMUNITY]

Regional legislation may declare the restoration action imprescriptible in these zones. Regional competence in urban planning matters derives from Article 148.1.3 of the Spanish Constitution and has been defined by Constitutional Court Judgment 61/1997 (STC 61/1997). TRLS 2015, in its Article 62.2, contains an implicit reference to regional legislation on limitation periods, without “expressly delegating” this competence (which already belongs to the autonomous communities by constitutional mandate).

Steps you can take, in order

1. Establish exactly what type of green zone or open space is involved. Is it publicly or privately owned? Is it designated as a green zone in the planning instrument, or is it simply a private garden?
2. Check whether regional legislation establishes no limitation period for that specific type of zone. [CHECK THE LEGAL POSITION FOR YOUR AUTONOMOUS COMMUNITY]
3. Distinguish between the punitive proceedings and the restoration proceedings. The financial penalty may have become time-barred even if the restoration obligation is not subject to limitation.
4. Assess proportionality arguments. Even in zones where no limitation period applies, the principle of proportionality may still be relevant.
5. Request the full case file in order to understand the exact basis of the decision.
6. Submit written representations within the legal deadline.

Common errors made by councils

Error 1: Applying the green-zone regime to land that is not designated as a green zone in the planning instrument. The mere presence of vegetation does not make a piece of land a green zone for planning purposes.

Error 2: Confusing a public open space with a private garden. A private garden within a private plot is not a public open space, even if the planning instrument designates it as a green zone.

Error 3: Failing to give reasons for applying the no-limitation regime. The council must expressly justify what type of land is involved and why the special regime applies.

Error 4: Confusing the no-limitation nature of the restoration obligation with that of the financial penalty. In many autonomous communities, the fine becomes time-barred even when the restoration obligation does not.

Anonymous real-life case

Alberto V. owned a developable plot adjacent to a municipal green zone. A small storage shed had been built partially over the green zone (0.5 m² beyond the plot boundary). The council opened enforcement proceedings for encroachment on a public green zone. The restoration action was not subject to any limitation period. However, the encroachment was minimal, the shed could easily be moved, and the impact on the green zone was practically nil. We submitted proportionality representations and voluntarily removed the 0.5 m² that encroached on the green zone. The proceedings were closed following the voluntary restoration.

Frequently asked questions

Are violations in a green zone always exempt from limitation periods? Only if regional legislation expressly provides for it. It is not automatic. And in any event, the financial penalty may become time-barred even when the restoration obligation does not. [CHECK THE LEGAL POSITION FOR YOUR AUTONOMOUS COMMUNITY]

If I build on the green zone of my private residential development, does the same regime apply? Not necessarily. It depends on whether that green zone is designated as a public open space or is simply a communal green zone within the development. The regime may differ. [CHECK THE LEGAL POSITION]

Can I argue that the financial penalty is time-barred even if the restoration obligation is not? Yes, if regional legislation sets different limitation periods for punitive action and for restoration action. This is a technically relevant argument.

If the encroachment on a green zone is less than 1 m², can proportionality be applied? Yes. The principle of proportionality applies even where the restoration obligation is not subject to limitation. A minimal encroachment may justify proportionate measures that are less severe than demolition.

Can the Parks Councillor directly order demolition? No. A demolition order or a restoration-of-legality order must be issued through administrative proceedings that include a right to be heard, regardless of which municipal department is responsible.

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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.