Building abuses, size doesn’t matter: demolition even for small extensions

From square to rectangle the house expands

The case concerns an extension on the mezzanine floor of a three-storey building above ground, built by the owner of the apartment in breach of the approved building permit variation. Where the project envisaged a plan with a corner set back by approximately 50 cm compared to the existing building, the intervention was carried out flush, with a rectangular corner, thus producing an increase in surface area of ​​6.35 m2. The property is located in an area subject to landscape and environmental restrictions.

The owner had submitted a request for amnesty pursuant to law 326/2003: in 2014 the request was rejected but the act was not challenged. He subsequently submitted a request for taxation pursuant to art. 34 of the TEU, also rejected in 2017.

In 2018 the Municipality of Turin issued the demolition order, contested with an appeal to the TAR. The Court ruled in favor of the Municipality, and so did the Council of State.

A no to the uncontested amnesty makes reinstatement mandatory

Before going into the merits of the type of abuse, however, the magistrates underline that the demolition order derived directly from the denial of amnesty in 2014. A decision that had not been challenged at the time, with the consequence that the act had become incontestable and the restoration order was due.

For this reason the administration could no longer be required to justify the public interest in the demolition: the legal reason was already contained in the provision.

Confirming a now consolidated principle, the sentence reiterates that the time elapsed between the denial of amnesty and the demolition order has no relevance, given that the permanent nature of the building offense does not allow the administration’s inertia to be attributed any meaning of remedying the abuse and/or compliance on the part of the administration itself, nor does it have any effect on the administration’s duty to intervene and the flexibility with which it can exercise it.

Size does not change classification

Going into the merits, the CdS then underlines that the intervention carried out, although limited in scope, resulted in a modification of the shape and an increase in surface area and volume, which qualifies it, from a functional and factual point of view, as a “heavy” building renovation pursuant to art. 3, letter d) of the TEU.

In the presence of these specifications, the structural characteristics of the intervention, despite the latter actually having small dimensions, could not in themselves alone have led to its different classification pursuant to current legislation. Reason why the Board also excludes the applicability of construction tolerances pursuant to art. 34-bis of the TEU, given that these concern modest formal differences which do not affect the shape of the building. In the case in question, however, there was a change in shape and the expansion as well, with a consequent increase in urban planning load, moreover on a restricted area. A set of facts that makes the intervention unremediable by definition.

Taxation is an exception, not a right

As for the request for taxation, the magistrates of Palazzo Spada recall that in the sanctioning system for building violations, demolition is the rule. The replacement with the pecuniary sanction – the so-called taxation – is an exception left to the discretionary evaluation of the administration in specific situations, which can be reviewed in the jurisdiction only within narrow limits.

In essence, the private individual does not have the right to taxation: he can request it, but the Municipality is not obliged to grant it. In the case in question, however, the request had already been denied in 2017, and the provision had not been challenged this time either, which is why any challenge before the Court on this aspect too is precluded.