Old question and new works
The matter addressed by the ruling began more than thirty years ago. In fact, we start from an application for amnesty presented in 1995 by a property owner, but lacking a fundamental part necessary to proceed. The owner, in the absence of a specific denial, had carried out further unauthorized works on the area, believing that the amnesty had been formed by silent consent.
The disputed works, ascertained by the municipal police in January 2019, consisted of the closure of the front of a pre-existing shed, transformed into a closed room used for storage; in the installation of three tubular iron gazebos with plasticized sheet coverings, placed tightly together, each measuring 4.80 x 4.80 metres, for an average height of 3.00 metres; and in the construction of a further canopy in iron tubing and corrugated sheets, measuring 12.20 x 6.40 meters for an average height of 2.50 metres. Hence the rejection of the original application and the obligation to demolish. Decisions contested by the owner.
First of all, he had argued that the new works carried out could be classified as free construction, given that they would not have generated new volume or urban transformation of the territory. Furthermore, he had argued that these should not have had any influence on the original application for amnesty since the building had been built in an area in which there was no restriction of absolute non-buildability, but the exemption that would have made the intervention possible had not been attached to the application. This fact blocks any hypothesis of amnesty by silent consent, even if there have been further indications from the Municipality on the possibility of eliminating the restriction in the affected area.
Free construction? Not for gazebos and canopies anchored to the ground
The judges of Palazzo Spada rejected both considerations. As regards the hypothesis of free construction, in reference to the works carried out, the decisive criterion is not the lightness of the materials or the theoretical removability of the structures, but rather their suitability for lastingly transforming the covered area in terms of surface area and volumes created, permanently modifying the state of the places. In the specific case, the structures were stably fixed to the ground or to the pre-existing walls and structurally connected to each other, integrating to all intents and purposes new construction interventions, a concept suitable for including any autonomous building or modification of another pre-existing one, which is stably fixed to the ground or to the walls of the pre-existing one, but in any case capable of transforming the covered area in a lasting way, in terms of surface area and volumes created, as such suitable for modifying the state of the places, thus radically altering the state of the building with respect to the situation photographed from the 1995 application.
New abuses, the request for amnesty always lapses
On this basis, therefore, the principle is applicable according to which further interventions carried out on illegal buildings that have not been remedied or condoned – even if they can be traced back, in their objectivity, to the categories of extraordinary maintenance, renovation or construction of urban planning appurtenances – repeat the unlawful nature of the original abuse to which they structurally inhere. Nor is the subjective qualification attributed to the intervention capable of neutralizing its abusive nature when the reference structure itself lacks any legitimizing title.
Pardon possible by silent consent but under one condition
As for the hypothesis that the amnesty was formed by silent consent, the Council of State recalled that amnesty is possible for this reason but only in the presence of all the necessary documentation. In the specific case, given the location of the property within the railway buffer zone – a constraint which does not in any case constitute a hypothesis of absolute unbuildability – it would have been necessary to obtain the specific authorization in derogation. Authorization which, however, had never been attached to the amnesty application.
The fact that the Municipality itself subsequently said it was in favor of removing the constraint limited to the urban planning aspect could not be considered relevant, as it was a simple wish. Therefore the appeal was rejected and the Municipality’s decision confirmed on both fronts.
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