Failure to build: when the Municipality must return the costs and construction costs

The general principle

The TAR Lombardy, Brescia, section. II, in the sentence. 27 May 2026, n. 750, reiterated, recalling a well-known jurisprudential orientation(1), that in case of failure to use the building permit, there is the right to reimbursement of the amount paid as urbanization charges and construction costs, as objective undue payments pursuant to art. 2033 cc(2) or, in any case, by way of unjust enrichment pursuant to art. 2041 cc(3)

In this regard, it was also recently reiterated, “in the field of construction, failure to carry out the work authorized with the building permit issued constitutes a fact constituting the right of repetition pursuant to art. 2033 cod. civil of the sums paid as urbanization charges and construction costs. It is common ground that the private individual has the right to the refund of the amount paid as concession charges in the event of non-use of the building permit, expiry of the (unused) concession or in the case of a change in the urban planning purpose (always in the case in which the property has not already been built in whole or in part), considering that the said charges are connected to the concrete exercise of the right to build. In such circumstances, the Municipality is obliged, pursuant to art. 2033 cod. civil or the art. 2041 code civil, to the restitution of the sums collected, because the relative payment is devoid of the original cause of the obligation to give and, correspondingly, the private individual has the right to demand their restitution”(4).

The nature of urbanization charges

The nature of urbanization charges is that of a public law consideration, in which the private sector participates in the public expenditure necessary for the implementation of urbanization works.

Urbanization costs are, therefore, linked to the increase in urban planning load, an expression which must mean both the need to equip the area with new infrastructures and services, and the need to carry out more frequent maintenance of existing ones, which are subjected to more intense use; this component of the construction contribution is, therefore, strictly connected to the concrete exercise of the right to build, being justified only by the greater urban planning burden resulting from the construction of the building.

It follows that, when the previously approved intervention has not been carried out, the urbanization costs are not due, and, if already paid, must be returned.

The nature of the construction cost

The contribution on the cost of construction, however, has a tax nature, as it affects the real estate wealth created with the construction. Furthermore, this component of the construction contribution, being strictly connected to the concrete use of the building permit, is not due in the event of renunciation of construction.

The prescription

The limit to the repayment is constituted by the prescription of the credit: the TAR Puglia, Bari, SS.UU. expressed its opinion on this specific aspect in the sentence. 13 February 2026, n. 211.

The Apulian judges recalled that the art. 16 of the Consolidated Construction Law (Presidential Decree no. 380/2001) provides that the construction contribution is made up of the urbanization charges and the construction cost: the former must be paid at the time of issuing the building permit and can be paid in instalments, while the latter must be paid within 60 days from the completion of the works.

Given that the limitation period is ten years(5), the dies a quo of this term (which pursuant to art. 2935 cc starts from the moment in which the right can be exercised), is different in the two hypotheses:

• for urbanization charges, it starts from the moment the building permit is issued or in any case created;
• for the construction cost, it starts from the communication to the municipality of the end of the works(6).

Notes

(1) TAR Lombardy, Brescia, sec. II, sentence. 25 February 2026, n. 262; Milan, section. IV, sentence. 9 April 2024, n. 1048; TAR Piedmont, section. II, sentence. 29 May 2024, n. 580; Council of State, sec. V, sent. 13 July 2017, n. 3456.
(2) Anyone who has made an unnecessary payment has the right to recover what they have paid. He is also entitled to fruits and interests from the day of payment, if the person who received it was in bad faith, or, if he was in good faith, from the day of the request.
(3) Anyone who, without just cause, has enriched himself to the detriment of another person is held, within the limits ofenrichmentto compensate the latter for the corresponding decrease in assets.
If the enrichment has as its object a specific thing, the person who received it is required to return it in kind, if it exists at the time of the request.
(4) Council Just. Adm. Sicilian Region, sentence. 15 October 2024, n. 780.
(5) TAR Campania, Salerno, sec. II, sentence. 26 September 2022, n. 2459; Naples, section, VIII, sent, 8 July 2022, n. 4610.
(6) Council of State, sec. IV, sentence. 19 December 2023, n. 11022; TAR Lombardy, Milan, section. I, heard. 8 June 2024, n. 1736.