First the apartments, then the water: real estate developers ask to change the law

PalmaThe real estate developers of the Balearic Islands are not satisfied with the regulatory reforms of Marga Prohens' Government and, despite the possibility of increasing the number of apartments on the same plot by 45%, they have sent new proposals to Parliament. The Proinba Association aspires to amend the Balearic Islands' Urban Planning Law to facilitate the processing of real estate projects even if the water supply has not yet been approved. The document arrives after the developers have encountered difficulties in moving forward with the projects that aim to address the housing emergency.The regulatory reform sent to the Parliament would allow for the approval of apartments first and then determine if they have the necessary water legally guaranteed for future inhabitants. This is the type of approach that courts have struck down in other territories, reminding that the order is the other way around: first, it is necessary to prove that there is water, and then begin with the licenses and permits.

Developers are demanding that, when faced with a new request for water for a real estate development, it be approved even if the flows necessary to meet the new demand have not been legally granted. The proposal, signed by the entity's president Óscar Carreras, has been presented taking advantage of the parliamentary processing of the modification of the Palma Capitality Law. The goal is to facilitate the approval of planning modifications on urban land that allow for the creation of housing under some protection regime.

The change is substantial. Proinba proposes that Water Resources could report favorably on a new plan even if the necessary water is not granted. It would suffice for the developer to have submitted the application for a new concession or an extension of an existing one. The water would be requested, but not yet authorized. The effective concession would be left for a later phase. According to the developers' text, it would only be essential to have it before approving the urbanization project or, when this is not necessary, before granting the license that allows the works to be executed.

This would generate a situation unthinkable until now: having a plan definitely approved to build new homes without yet knowing if the Administration will grant the necessary water to make them possible. If the concession were denied, the homes could not begin to be executed, but the urban planning decision would already have been made.Distinction between sufficiency and availability

Proinba argues that it does not intend to relax the requirement that water resources must physically exist. Its argument is based on the distinction between sufficiency and availability. The first means that water exists in sufficient quantity; the second, that this water can be legally used for specific development, which requires a concession.

The developers maintain that the second requirement can be postponed. They consider it incoherent to demand a concession for water flows linked to a plan that has not yet been definitively approved and propose that the concession title arrive later.

The technicians of Cort and Water Resources have long been warning about the situation. During the processing of the last General Plan by the Pact, they recalled that the new construction provided for in the document did not fit in terms of water supply. Furthermore, critical voices are concerned about the pressure exerted by Palma when it comes to pushing forward large-scale real estate projects, especially those that include a 45% increase in buildability.

An expert in administrative and urban law consulted by ARA Balears, who has asked not to be identified for professional reasons, considers the proposal to be “clearly contrary to state legislation.” The issue is not, he points out, only that the water physically exists, but that the planning “can legally prove that it has it available.”

The State Water Law establishes that, when a plan involves new demands, the hydraulic administration must expressly pronounce itself on the existence of sufficient resources to satisfy them. The same rule determines that, if this report does not arrive within the established deadline, it must be understood as unfavorable.

The State Land Law reinforces this guarantee. Article 22.3 requires obtaining, during urban planning processing, a report from the hydrological administration on the existence of the necessary resources to satisfy new demands.

The Supreme Court says that a concession in process is not enough

The main legal difficulty for the Proinba formula is that the Supreme Court has expressly ruled on an almost identical case a few months ago. In a judgment of April 15, 2026, the Supreme Court reiterated that, to consider the water resources of a planning project accredited, it is not enough to demonstrate that the water exists. Its material and legal availability must also be accredited.

The judgment goes even further: in that case, there were water concessions under processing. Precisely for this reason, the court concluded that legal availability had not been accredited at the time of approving the planning. The established doctrine is that sufficiency requires both resources and material and legal availability over these resources.

It is exactly the barrier that Proinba proposes to tear down. The employers' association wants the submission of the application to be sufficient to allow for a favorable report and to leave the granting of the concession for later. The legal problem is that this modification requested by the developers “affects higher-ranking regulations,” points out the consulted lawyer. The 2026 judgment does not inaugurate this doctrine. The Supreme Court has maintained it for years: it is of little use for water to physically exist if it is not legally viable to obtain it and allocate it to the new development.

Public domain is not acquired by silence

The promoters' proposal also requests that, if the Administration does not respond within three months, the petitioner may obtain the right to proceed with the real estate development. Article 24.1 of the Administrative Procedure Law establishes that, when a request affects the public domain –and water is such–, silence implies dismissal. A lack of response cannot convert a pending request into a right over water.

The expert consulted by ARA Balears considers that “a favorable value cannot be given to a simple request that has not yet been resolved." If the concession has not been granted, one cannot act as if the water were already legally available”, he states.Water scarcity, the terror of planning

The concern of developers has an explanation. The lack of certified water can overturn an entire urban plan, and even more so a strategic housing project, one of the stars of the regulations approved to promote the construction of more apartments in Palma. In this line, voices of alarm were raised regarding the possibility of outsourcing water reports, because under the pretext of improving management and the public response, guarantees could be lost.

In any case, the Supreme Court confirmed in 2020 the annulment of the POUM (Municipal Urban Master Plan) of Castellbell i el Vilar, in Barcelona, because the planned new growth did not have the sufficiency and legal availability of water resources certified.

That ruling is especially relevant because the Generalitat had defended that Catalonia had its own hydraulic regulations and that the state requirements were not applicable to it in those terms. The Supreme Court rejected this. It established that the obligation to certify the necessary resources derives from state precepts of direct application, which are imposed on the urban planner, and confirmed that their absence could determine the nullity of the plan.

The doctrine has, therefore, a special significance for the Balearic Islands: that the Islands have their own competence in water matters does not necessarily mean that they can bypass the guarantees established by the basic state legislation.