Renovation & construction
Silencio administrativo: when town hall silence is not a licence
If the ayuntamiento does not answer in time, a licence is not always deemed granted. For new build, silence is negative, and a right contrary to the plan never arises.
If the ayuntamiento (town hall) does not answer a licence application in time, that does not mean the licence has been granted. Silencio administrativo (administrative silence) is the legal effect of no reply: the general rule gives consent, but for building licences the law makes several exceptions, and the most important one concerns new build. Under art. 188.2 of the Catalan urban planning law, silence grants no licence for obras de nueva planta (new-build works) that require a technical project, nor for any action contrary to planning law. A project that starts "on silence" risks being stopped, and the money spent has no protection.
Which silence is positive and which is negative?
The general rule is set by Ley 39/2015 (the Spanish administrative procedure act): on an application, silence means consent unless the law says otherwise (art. 24.1). On land matters the law does say otherwise. The national land law lists the acts with express authorisation and negative silence (art. 11.4 TRLSRU), but the Constitutional Court, in STC 143/2017 (FJ 23), declared this rule unconstitutional for the division of plots and for tree felling in transformation zones. For new build (edificación under the building regulation law) the rule stayed, and for other structures and prefabricated houses it applies only in rural land not planned for urbanisation. The Catalan law excludes from positive silence new build with a technical project, earthworks, new structures and prefabricated houses in suelo no urbanizable (non-developable land), and anything that breaches legalidad urbanística (planning legality).
| What is requested | What silence does |
|---|---|
| New build with a technical project | Negative: no licence (art. 188.2.b TRLU; art. 11.4.b TRLSRU) |
| Earthworks and prefabricated houses in suelo no urbanizable | Negative (art. 188.2.a and c) |
| Parcelación and segregación | Not on the Catalan list of negative silence, and art. 11.4.a TRLSRU was struck down as to the division of plots (STC 143/2017). Silence still gives no rights against the plan: the notary and the registrar ask for a licence or a declaración de innecesariedad. Silence cannot be relied on; this is a question for an abogado urbanista (planning lawyer) |
| Renovation with a technical project | Positive is possible (art. 188.2), but not against the plan and not where the works may harm the environment (art. 24.1 Ley 39/2015) |
| Minor works with no technical project | Comunicación previa (prior notice) procedure, not a licence (art. 187 bis TRLU) |
| Any action against the plan or the law | No rights arise by silence (art. 11.3 TRLSRU; arts. 5.2 and 188.2.e TRLU) |
What does positive silence mean in practice?
Even when it is possible, it is not unconditional. The decision deadline is set by the governing rule, and if none is stated it is three months (art. 21.3 Ley 39/2015). After positive silence the ayuntamiento can only issue a confirming decision (art. 24.3.a), and the silence itself can be evidenced by a certificado: the body issues it on its own within fifteen days after the deadline expires, or you request it at any time (art. 24.4).
If the silence is negative, it only opens the way to an appeal (art. 24.2), and the ayuntamiento may reply later and is not bound by the "sense of the silence" (art. 24.3.b). Meanwhile you have no licence.
How do comunicación previa and declaración responsable differ?
These are not silence but a different mechanism. Works with no technical project go through comunicación previa: you notify them and the ayuntamiento checks later (art. 187 bis TRLU). For opening low-risk businesses (not for building a house), Catalan Law 16/2015 puts declaración responsable (a sworn declaration of compliance) or comunicación previa at the core of the regime and says they immediately entitle the owner to start the activity at their own responsibility, with the administration checking afterwards (art. 13.3 Ley 16/2015). The declaration must state expressly that the activity complies with the planning regime of the land (art. 13.2).
What does a mistake cost? A worked example
Worked example, not a forecast. Assumptions: a new-house project, licence filed, ayuntamiento deadline of three months and, on day 92, no reply. The investor hires a contractor and starts works worth 180 000 € over two months.
| Item | Amount and consequences |
|---|---|
| Works until stopped | 180 000 € |
| If the silence is negative | no licence, works proceed without a right |
| What the ayuntamiento does | may suspend the works and open a breach procedure |
| Size of sanctions | not included in the calculation, set by the ayuntamiento's decision |
The reasonable alternative: wait for the express decision, or request the certificado where the silence is positive. Which case applies is decided by the abogado (lawyer) from the text of the law and the municipal act.
Who does this rule not help?
Anyone who treats the "three months" deadline as universal: it depends on the act. Anyone planning a new villa or an extension "on silence": for obras de nueva planta with a technical project this is closed. And anyone whose project contradicts the plan: silence does not work there, whatever the deadline. The permit procedure is covered in the article how to get a building licence in Catalonia, and timelines and delay risk in the articles on the average licence timeline and the risk of permit delays. If the project is on a plot, start with the land page.
Questions and answers
If the ayuntamiento does not answer in three months, is the licence deemed granted?
Not always. Three months is the general deadline if the governing rule sets no other, and the effect of silence depends on the type of works. For new build with a technical project, silence is negative and there is no licence.
Can a licence be obtained by silence against the plan?
No. Both the national and the Catalan law say expressly that against planning law and the plan, no rights arise by silence.
How is positive silence evidenced?
By requesting a certificado from the body that had to decide. The law obliges it to issue one within fifteen days after the deadline, and it can also be requested later.
What to do with negative silence?
It only opens the way to an appeal, and the ayuntamiento may reply later in either direction. The abogado determines the steps from the deadline and the act.
Is a licence needed for minor works?
Under the Catalan law, works with no technical project go through comunicación previa, not a licence. What counts as minor works depends on the project under the building regulation law and on the ayuntamiento's decision.
