The new conformity assessment procedure pursuant to art. 36-bis Tue: further practical indications in two recent sentences

Assumptions of applicability of the amnesty procedure

There sent. June 19, 2025, n. 560, of the Tar Umbria, section THEfocused on conditions of applicability of the norm and the related procedure.

In the specific case, in summary, it was in front of a expansion supported by a Cila: according to the college, given that the expansion interventions subject to the cause had to be considered as newly built interventions carried out in the absence of building permitdefect the conditions for the abstract applicability of art. 36 bis of the DPRN 380 of 2001. This provision expressly limited its applicability to «construction interventions carried out in partial discrepancy by the building permit or by the certified report of the start of activity»; In the present case, the intervention was genetically devoid of the necessary building permit, to nothing by detecting the cila presentedgiven that the intervention carried out could not be absent through this communication.

And in fact, the same judges had already affirmed, previously, such as the derogatory provision pursuant to art. 36-bis of the construction ofIn the presence of works for which the building permit is necessary, it only starts if it is a discrepancies from the same, not even in the event of complete absence of the authorization title for a structurally and functionally autonomous intervention“(2).

In a compliant sense, the recent administrative jurisprudence clarified that “Once the erroneous reference of the activity to the ranks of the realizations regulated by art. 36 bis tuedto the current affair The relative discipline is therefore not applied“(3).

Payment of oblation and formation of silence-assent

In the sent. June 3, 2025, n. 973, the Tar Toscana, section IIIhighlighted an important aspect regarding the payment of the oblation provided for by the assessment pursuant to art. 36-bis: such payment conditions the “release“Of the title but does not affect the improvement of the case of silent assent.

In other words, the non -payment of oblation can affect the effectiveness of the title, but it cannot detect as a constitutive element of the case of silent assent (which is formed, as expected, in the event of the course of the term of 45 days in the absence of determinations by the technical office).

Notes

(1) Art. 36-bis. Assessment of conformity in the event of partial discrepancy and essential variations
1. In the event of interventions carried out in partial discrepancy by the building permit or by the certified report of the start of activity in the hypotheses referred to in Article 34 or in the absence or in discrepancies from the certified report of the start of activity in the hypotheses referred to in Article 37, until the expiry of the terms referred to in Article 34, paragraph 1 and in any case up to the imposition of the administrative penalties, the head of the abuse, or the current owner of the property, can obtain permission. to build and submit the certified report of start of activities in amnesty if the intervention is compliant with the urban planning discipline in force at the time of submitting the application, as well as the requirements prescribed by the building regulation in force at the time of construction. The provisions of this article also apply to the essential variations referred to in article 32.
2 In the examination of the requests for permit in the amnesty, the Single Sun can condition the issue of the provision to the applicant’s construction, the building interventions, including structural ones, necessary to ensure the observance of the sector technical regulations relating to the safety requirements and the removal of the works that cannot be healthy pursuant to this article. For the certified reports of the start of the activity presented pursuant to paragraph 1, the Single desk identifies among the interventions referred to in the second period the measures to be prescribed pursuant to article 19, paragraph 3, second, third and fourth period, of the law 7 August 1990, n. 241, which constitute conditions for the formation of the title.
3 For building compliance, the declaration is made with reference to the technical standards in force at the time of the construction of the intervention. The era of construction of the intervention is proven through the documentation referred to in article 9-bis, paragraph 1-bis, second and third period. In cases where it is impossible to ascertain the era of realization of the intervention through the documentation indicated in the third period, the technician in charge certifies the date of realization with his own declaration and under his responsibility. In the event of a false or mendace declaration, the criminal sanctions apply, including those provided for by the Cape VI of the consolidated text of the legislative and regulatory provisions on administrative documentation, referred to in Presidential Decree 28 December 2000, n. 445.
3-bis. For properties located in the seismic areas referred to in article 83, with the exception of those with low seismicity indicated by the decrees referred to in the same article 83, the provisions of article 34-bis, paragraph 3-bis, apply, as compatible.
4 The competent authority is pronounced on the application within the peremptory term of one hundred and eighty days, upon binding opinion of the Superintendency to be made within the peremptory term of ninety days. If the opinions are not rendered within the terms referred to in the second period, the silence-assent is formed and the manager or manager of the office provides independently. The provisions of this paragraph also apply in cases where the interventions referred to in paragraph 1 are incompatible with the landscape constraint affixed to their construction.
5
a) equal to double the construction contribution or, in the event of gratuity in accordance with the law, determined to an extent equal to that provided for in article 16, increased by 20 percent in the event of interventions carried out in partial discrepancy by the building permit, in the hypotheses referred to in Article 34, and in the case of essential variations pursuant to Article 32 building in force both at the time of the realization of the same, and at the time of submitting the application;
b) equal to twice the increase in the venal value of the property assessed by the competent offices of the Revenue Agency, to a measure, determined by the person in charge of the procedure, not less than 1,032 euros and not exceeding 10,328 euros where the intervention is carried out in the absence of the certified report of the start of activity or in discrepancies from it, in the cases referred to in Article 37, and to an extent not less than 516 euros and not exceeding 5,164 euros If the intervention complies with the urban and building regulations in force both at the time of the realization of the same, and at the time of submitting the application.
5-bis. In the hypotheses referred to in paragraph 4, if landscape compatibility is ascertained, a determined sanction is also applied to the appraisal of esteem and equivalent to the greater amount between the damage caused and the profit achieved by transgression; In the event of a rejection of the application, the demolition sanction referred to in article 167, paragraph 1, of the Code of Cultural Heritage and the Landscape is applied, referred to in Legislative Decree 22 January 2004, n. 42.
6. On the request for permit in amnesty, the manager or person in charge of the competent municipal office is pronounced with a motivated provision within forty -five days, after which the request is considered accepted. The deadline referred to in article 19, paragraph 6-bis, of the law of 7 August 1990, n. 241 After the terms referred to in the first and third period, any subsequent determinations of the competent municipal office are ineffective. The term is interrupted if the office represents investigation, motivated and formulated in a timely way in the terms, and starts again from the reception of the instructors. In the cases referred to in this paragraph, the Administration is required to issue, electronically, at the request of the private individual, an attestation about the course of the terms of the procedure and of the formation of the qualifications. Decorate unnecessarily ten days from the request, the instant can exercise the action envisaged by article 31 of the administrative process code, referred to in Annex 1 annexed to the legislative decree of 2 July 2010, n. 104
(2) Tar Umbria, sent. 10 October 2024, n. 687.
(3) Tar Campania, Salerno, section II, sent. 11 April 2025, n. 693.