Building permit, when silent consent is valid (and when not)

Documents and procedures

The matter examined by the Court is rather recent. In fact, it begins in 2022 with the presentation of a building permit, which however lacks part of the documentation, specifically the energy documentation. The Municipality had denied the declaration of formation of the deed for the expiry of the deadline and the interested party had appealed to the TAR of Abruzzo.

The Court ruled in favor of the Municipality, confirming that the silent consent had not been formed due to the lack of the necessary documentation for the building permit to be considered legally valid. Position reiterated by the Council of State, which endorses the line in favor of simplification which should not, however, be understood as a way to circumvent legal constraints due to inefficiency of the administration.

Compliance and configurability

First of all, in fact, the Court recalls that silent consent is formed following the expiry of the established deadline “provided that the formal requirements established by law exist and that, therefore, the application is presented by a legitimate subject to an administration which has the obligation to provide and is complete with the required documentation”.

From this perspective, urban planning discrepancies do not prevent the formation of silent consent (sentence 3476/2022), or in general the presentation of an application “not compliant with the law”, even if this could justify, if the conditions are met, the exercise of self-defence powers and judicial challenge. However, the case of a “radical legal inconfigurability of the request” which occurs when it lacks the essential elements that make it valid is different.

The essential documents

In the specific case of the building permit, the art. 20, paragraph 1, of the TEU strictly identifies the documentation for the configurability of the act for which the following are needed:

• title of legitimation;
• project documents;
• other documents provided for by Part II of the TEU (technical regulations) in cases where some specific documentation is foreseen as necessary and to be presented in advance (e.g. architectural barriers);
• declaration from the qualified designer which certifies the project’s compliance with urban planning instruments, building regulations and sector regulations with explicit reference to anti-seismic, safety, fire prevention, sanitation and energy efficiency regulations.

The list is precise and there are no exceptions: either all the documentation is present, or the application is not compliant.
In the case in question, the designer’s declaration on compliance with the provisions on energy efficiency and the filing of the energy performance certificate were missing.

The interested party in the appeal had argued that the request for integration of the documentation by the public administration should have occurred within the deadline for the conclusion of the procedure. The judges, however, noted that the administration has the duty to intervene only when it concerns acts in accordance with the law, not even when the request lacks essential documentation and as such is de facto inadmissible.

What does not block silent consent

The ruling clarifies equally clearly what does not prevent the formation of the tacit title:

• the lack of documents required by regional laws or building regulations, but not by art. 20, paragraph 1, of Presidential Decree 380/2001: the application is “incomplete” but “configurable”, and if the PA does not request the additions within the deadlines, silent consent is still given;
• urban planning discrepancy or non-compliance of the application with current legislation: the title is formed for silentium and is possibly subject to self-protection pursuant to art. 21-nonies of law no. 241/1990, but is not prevented by substantial non-compliance;
• the failure of the PA to request additions for non-essential documents: the administration’s inertia on additional documentation cannot be converted into an argument to deny the formation of the title.

A further clarification concerns requests for regularization of essential elements: when it comes to mere clarifications on detailed aspects that do not affect the identification of the intervention, these must also be formulated within the legal deadlines, and their possible omission does not block the silent consent.

When silent consent is not formed

Regardless of the completeness of the documentation, all cases in which the law does not allow tacit title or provides for different effects remain outside the mechanism, i.e.:

• interventions governed by the special legislation on the Housing Plan, the request for which cannot be traced back to the model in the art. 20, paragraph 8, of Presidential Decree 380/2001;
• permission to build in the presence of landscape, environmental, hydrogeological or cultural constraints, unless prior favorable consent is obtained from the competent authority;
• building permit in derogation pursuant to art. 14 of Presidential Decree 380/2001, which requires discretionary evaluation by the municipal council;
• extension of the expired building permit, which implies assessments of opportunities that cannot be replaced by the simplification device;
• conformity assessment pursuant to art. 36 TEU in case of absence of title or total discrepancy, a case subject to silent refusal;
• erroneous use of the SCIA when the law unequivocally requires the use of the building permit, as the law in this case does not link such an effect to the party’s declaration, which instead remains reserved for the administrative measure.

An exhaustive and definitive list, essential to keep in mind to avoid making errors of evaluation.