No to the possibility of requesting a second “current” amnesty only for the remaining works after the implementation of a partial demolition order. Building abuse must be assessed in its entirety with reference to the moment in which it was committed, so the simplified double compliance provided for by the Save Home Decree cannot be used as a shortcut to remedy irregularities that have not been eliminated.
The Council of State clarified this with sentence 4845/2026 (viewable at the end of the article)which clearly and precisely defines the cases of application of the provisions of the art. 36-bis.
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Restoration order and partial compliance
The matter addressed by the judges of Palazzo Spada starts from the improper use of a final variant DIA (ex art. 41 of LR Lombardia 12/2005) for the execution of heavy structural interventions, including the modification of the shape of the building, the expansion of the balconies and the moving of an elevator outside. The municipal technicians, moreover, had also verified further interventions aimed at making a basement and an attic habitable, which could in fact be qualified as essential variants.
Hence the refusal of the amnesty and the order for restoration. However, the owners had only carried out partial interventions from this point of view, eliminating the systems that made the rooms habitable and reducing the average weight heights using screeds.
Subsequently they presented a second request for amnesty only for the remaining geometric and volumetric differences (advances of walls and modifications of the inter-storey floors), deeming them compliant with the urban planning regulations in force at the time of submission of the application. However, the Municipality rejected the request again, and the TAR and the Council of State confirmed the correctness of the decisions.
No to the execution of posthumous works
The Council of State rejected the appeal, first of all recalling that it is not permitted to carry out works subsequent to the application for amnesty to adapt and bring the property into compliance with the urban planning regulations in force at the time of the application, as this intervention is in conflict with the very principle of double conformity.
In essence, the intervention carried out without title must be considered as a whole and cannot be divided into individual parts in order to request a partial amnesty, referring to the rules in force at the time of submission of the second amnesty application, when the irregularities which had made the first application unacceptable remained standing.
In the specific case the latter (structural modification of the shape, translation of the roof and creation of illegal habitable volumes) exceeded the limits of the partial discrepancies, so submitting a SCIA in amnesty for the sole redistribution of the internal partitions could not in any case have allowed the entire intervention carried out at the time to be remedied without respecting the principle of double building and urban planning conformity, in reference to the regulations in force at the time of the implementation of the intervention itself.
The clear border between art. 36 and art. 36-bis
In fact, the sentence puts a firm point on the interpretation of the effects of the Save Home Decree, as the judges of Palazzo Spada have expressly specified that this orientation cannot be overcome on the basis of the reform, since the text of the rules itself has excluded rigid double conformity only in the new discipline of the art. 36 bis of the TEU only with respect to the discrepancies referred to in the art. 34 and the essential variations referred to in art. 32 of the TEU, maintaining it with respect to the application presented pursuant to art. 36 of Presidential Decree 380/2001.
So:
- for cases of total non-conformity or essential variation that require the Building Permit in amnesty (art. 36), the double rigid conformity remains mandatory and no subsequent building intervention to “adapt” the property is permitted;
- the simplified amnesty (art. 36-bis) applies exclusively to partial discrepancies pursuant to art. 34 and the essential variations governed by art. 32.
In essence, outside of the cases expressly provided for by law, only the principle of rigid double compliance is always applicable.
Comparative table: map of amnesties between art. 36 and art. 36-bis
We see in this comparative table the map of the amnesties between the art. 36 and art. 36-bis:
|
Procedural Parameter |
Ordinary Conformity Assessment (art. 36) |
Simplified home-saving amnesty (art. 36-bis) |
|---|---|---|
|
Scope of application |
Total discrepancy from the qualification or major essential variations (e.g. structural volumetric increases) |
Partial discrepancies (ex art. 34) and specific essential variations (ex art. 32) |
|
Double Compliance Regime |
Symmetrical and bilateral: the work must respect the urban planning and building regulations of both the time and the current one. |
Attenuated and asymmetrical: building regulations of the time of construction and current urban planning regulations. |
|
Eligibility of posthumous works |
Strictly prohibited: subsequent interventions or demolitions to adapt the property are not permitted |
Admitted (Conditional amnesty): the Municipality can make the release conditional on the execution of building adaptation works |
|
Impact of partial removals |
Irrelevant: dismantling systems or making screeds after the injunction does not remedy the unitary nature of the old offense |
Legitimate only if planned: the adaptation of the current state of affairs must be governed by the provisions of the Municipality. |
|
Fractionability of abuse |
Excluded: the untitled intervention must be evaluated as a unit; Partial amnesty is not permitted |
Excluded: the principle of unity of the offense persists; the abuse must be remedied in its structural and functional entirety |
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