Urbanistically relevant change of use: simplified amnesty is not permitted

The notion of intended use

The intended use is an element that qualifies the connotation of the property and responds to the purposes of public interest pursued by the planning; in fact, it identifies the asset from a functional point of view, specifying the area destinations set by the urban planning instruments in consideration of the infrastructural differentiation of the territory, foreseen and regulated by the regulations on standards, which differ in quality and quantity precisely depending on the different area destination.

The general and implementation planning tools identify the intended use of land and buildings, so that certain qualities and quantities of services are assigned to the various and different destinations. The organization of the municipal territory and its management are carried out through the coordination of the various intended uses, and unauthorized changes to these have a negative impact on the organisation.

Already in the force of the previous legislation, with a dominant orientation in this sense, the jurisprudence has noted that only the change of intended use between homogeneous building categories does not require a building permit (as it does not affect the urban planning load), while, when the same occurs between functionally autonomous and non-homogeneous building categories, this hypothesis integrates a building modification with effects on the urban planning load, with consequent subjection to the building permit regime, and this, regardless of the execution of works(1).

Changing the intended use from storage or similar to residential

As stated by the TAR Lazio, Latina, sec. II, in the sentence. 18 June 2026, n. 714, in accordance with a clear jurisprudential orientation(2), the modification of the intended use from a warehouse or similar to residential integrates a change in intended use which occurs between functionally autonomous categories from an urban planning point of view, so that said intervention is subject to the issuing of the building permit(3) pursuant to art. 10, paragraph 1, letter. c), of Presidential Decree no. 380/2001(4).

The transformation of a storage room into a habitable space is, therefore, urbanistically relevant, since it affects the urban planning load and, therefore, requires a qualifying document (identified by the judges in the building permit), the lack of which determines a situation of illegality which must be detected by the administration in the exercise of its supervisory power (5).

The tool that can be used to repair the intervention in the absence of a building permit

In the sentence in question it was also specified that, in the case of an intervention carried out without a building permit, the instrument provided by law to obtain regularization is represented by the so-called “simple” amnesty referred to in art. 36 of the Consolidated Building Act and not from the so-called “simplified” one provided for by the art. 36 bis, for partial non-conformities: in fact, this second type of amnesty exclusively concerns interventions that partially differ from the building permit or the certified notification of commencement of activity, or carried out in the absence of the latter, not being applicable, according to jurisprudence, to cases of total non-conformity or interventions carried out in the absence of a building permit (6).

In the presence of works carried out without a building permit, the law allows for amnesty through the instrument referred to in art. 36, which contemplates more stringent limits for the purposes of regularizing the works, requiring, among other things, the requirement of the so-called. “double compliance”, which is not required by the art. 36 bis for the regularization of “partial discrepancies”.

Neither the Administration, in the presence of a request pursuant to art. 36 bis, can make a different qualification of the request, considering it aimed at obtaining an amnesty pursuant to art. 36, where the conditions were present. In fact, where the private individual has expressly opted for a specific procedural model, the Administration is precluded from reclassifying the request in order to apply a different regulation; otherwise, the Public Administration would rule “in prevention” on a request never proposed, not even implicitly and/or jointly by the interested party.

Notes

(1) Ex plurimisTAR Campania, Salerno, sec. II, sentence. 6 February 2026, n. 237, recalling TAR Lazio, Rome, sec. THE quaterheard. 28 August 2015, n. 10957.
(2) For an identical case, see TAR Campania, Salerno, section. II, sentence. 1 October 2020 n. 1254 and TAR Piedmont, section. II, sentence. February 27, 2024, n. 199; similarly, the change of intended use from garage to home is considered urbanistically relevant and requires planning permission (TAR Campania, Salerno, sec. II, sentence 14 April 2023, n. 848; sec. I, sentence 17 July 2020, n. 909) and from warehouse to house (TAR Lazio, Latina, section I, sentence 5 April 2022, no. 331).
(3) Council of State, sec. IV, sentence. 13 January 2025, n. 181; the SCIA is sufficient if, however, the change of intended use without works occurs within the same urban planning category.
(4) Former multisCouncil of State, sec. VII, sentence. 21 August 2023, n. 7835.
(5) Former multisCouncil of State, sec. VI, sentence. February 23, 2023, n. 1828.
(6) See TAR Lombardy Milan, section. IV, sentence. 12 January 2026, n. 125.