The justification for the amount of the sanction in the case of partial non-conformity and impossible demolition
As recalled by the TAR Lombardia, Milan, sec. II, in the sentence. 11 May 2026, n. 2288, the quantification of the sanction provided for by art. 34, paragraph 2(3), of the Consolidated Building Act (Presidential Decree no. 380/2001), in the case of interventions that partially differ from the building permit due to the impossibility of proceeding with the demolition under penalty of prejudice to the part carried out in conformity (4) constitutes a restricted activity, as the relevant parameters are entirely predetermined by the law: the law, in fact, refers, for the calculation, to the production cost of the part of the work carried out in non-conformity, established on the basis of the Law 27 July 1978, n. 392.
The Administration, therefore, does not exercise discretion in the choice of criteria but limits itself to applying a mathematical formula based on normatively defined parameters: in this context, the motivational burden is intrinsically attenuated.
The discretion occurs at an earlier stage, i.e. when it comes to evaluating whether or not taxation of the abuse can be granted due to the ascertained objective impossibility of removing the abuse without causing damage to the part carried out in compliance (5), with the burden of proof of this impossibility on the interested party (6) and, in any case, in the executive phase of the procedure, subsequent to the demolition order (7); once this benefit has been admitted, the determination of the amount of the sanction is configured as a mere implementation of a legal criterion(8).
The judges, in the specific case, considered the provision that had determined the decision to be sufficiently motivated quantum of the sanction by virtue of the express indication of the reference rule, i.e. art. 34, thus making the applied regulatory framework identifiable. Furthermore, in response to a specific request for clarification, the technical office provided the recipient with a detailed explanation of the calculation methodology, specifying the reference to Law no. 392/1978 and indicating the elements of the formula (surface area, basic cost, ISTAT revaluation, corrective coefficients), and specifying that the calculation document was deposited and available for viewing.
The question of discounting the cost of production
The Milanese judges focused on the necessity or otherwise of discounting the production cost, recalling that an initial opinion maintains that the material reference to Law no. 392/1978 requires using the calculation parameters envisaged therein with reference to the time when the abuse occurred, without any revaluation(9), while a second orientation(10), considered preferable in the sentence, which favors the necessary updating of the production cost at the time of the imposition of the sanction. This approach is based on a series of systematic and purposefully oriented principles, the application of which, in the opinion of the Board, guarantees greater coherence to the system and effectiveness of the sanctioning response.
First of all, it is necessary to start from the nature of building abuse as a permanent offence. The illegal conduct does not end with the realization of the work, but continues over time until the state of the places is restored or its regularization. From this nature it follows, as a corollary, that the applicable sanction regime is the one in force at the moment in which the administration proceeds to impose the sanction, in application of the principle tempus regit actum. As stated by the jurisprudence, “the building abuse, having the nature of a permanent offence, is in continuing conflict with the administrative rules until the state of the places is restored and, therefore, (…) when repressing the abuse itself, the sanctioning regime in force at the moment in which the administration proceeds to impose the sanction itself is applicable”(11).
Secondly, building sanctions, including the so-called “taxation” of abuse, pursue an eminently restorative and not merely afflictive purpose. The financial penalty constitutes an alternative measure to demolition, exceptionally permitted when the latter is not possible without prejudice to the compliant part of the building(12). In order for this measure to constitute a real and effective alternative to the demolition sanction, it is essential that it reflects the current value of the asset or, more precisely, the increase in value generated by the abuse. A calculation based on historical and non-updated values would translate into a merely symbolic sanction, devoid of any dissuasive effect, and would end up rewarding the perpetrator of the offence.
Thirdly, there is the need to avoid unjust enrichment for the person responsible for the abuse: as already observed by jurisprudence, “it is clear and intuitive that the production cost must be anchored to the moment of the adoption of the sanction, applying the current tariffs, and not to that of the commission of the abuse, since otherwise the perpetrator of the construction offense would be allowed to obtain a profit linked to the passage of time”(13).
This interpretative approach goes in the same direction traced by the recent pronouncements of the Plenary Meeting of the Council of State(14). Although these sentences have specifically addressed the question of interpretation of the art. 33, paragraph 2, of Presidential Decree no. 380/2001, have enunciated principles of general scope, extendable by identity of ratio also to the case referred to in the art. 34. The Plenary Assembly clarified that the financial penalty must constitute a “homogeneous and effective sanctioning response”; for this reason, it established that “The overall production cost, given by multiplying the conventional surface area with the unit production cost, must be updated according to the ISTAT construction cost index”.
The application of this principle also to art. 34 guarantees the coherence of the sanctioning system.
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