Third building amnesty: three recent sentences clarify the limits of the amnesty

Restricted areas: which interventions can be remedied?

The Piedmont TAR, section. II, in the sentence. 4 September 2026, n. 1826, highlighted that, in terms of building amnesty in restricted areas, illegal works carried out in an area subject to landscape and hydrogeological restrictions (art. 32, paragraph 27, letter d), of Legislative Decree 269 of 2003) are susceptible to amnesty only if they fall into the “minor” typologies referred to in nos. 4, 5 and 6 of Annex 1 (restoration, conservative rehabilitation, extraordinary maintenance), if they comply with the urban planning instruments and the favorable opinion of the authority responsible for the restriction has been obtained; however, in any case the “major” abuses referred to in nos. are incurable. 1, 2 and 3 of the same annex (as in the case of the construction of new volumes in an unbuildable agricultural area, the concrete case evaluated by the Piedmontese judges), even if the area is burdened by restrictions of relative unbuildability and the works are urbanistically compliant (2).

In the third building amnesty regime, the presence of a landscape restriction on the area already existing before the construction of the illegal work, and in any case before the application for amnesty, entails the a priori preclusion of the admissibility of the amnesty for typologies 1, 2 and 3 abuses referred to in Annex 1 of Legislative Decree 269 of 2003, with the exclusion of the formation of silent consent (3). This exclusion is based on the finding that art. 32, paragraph 1, of law no. 47 of 1985, referred to in art. 32, paragraph 27, of Legislative Decree 269 of 2003, provides that the amnesty for works carried out on properties subject to restrictions “is subject to the favorable opinion of the administrations responsible for protecting the constraint itself“, while for abuses committed on properties subject to restrictions, no legal provision correlates the tacit formation of a favorable opinion to the inertia of the competent authority, on the contrary, the same art. 32, paragraph 1, of law no. 47 of 1985 qualifies in the second sentence the inertia of the authority responsible for the restriction as a hypothesis of “silence-refusal”, which can be challenged by the interested party (4).

Remedy of major abuses in the presence of the favorable opinion of the Authority responsible for protection

The TAR Lazio, Rome, section. IV ter, in the sentence. 8 September 2026, n. 14696, recalled that, in the event of a major abuse of the work which is the subject of the amnesty request, the principle according to which, “with regard to building abuses committed in areas subject to landscape restrictions, it should be specified that the amnesty provided for by art. 32 of legislative decree no. 269 of 2003 is applicable exclusively to minor interventions indicated in numbers 4, 5 and 6 of annex 1 of the aforementioned decree (restoration, conservative rehabilitation and extraordinary maintenance) and subject to the favorable opinion of the Authority responsible for protecting the restriction, while the abusive works referred to are in no way susceptible to amnesty to the previous numbers 1, 2 and 3 of the same annex, even if the area is subject to a constraint of relative unbuildability and the interventions comply with the urban planning regulations and the provisions of the instruments”(5).

Given the dutiful and binding nature of the denial of amnesty in relation to a major abuse carried out on an area affected by constraints, the possible issue of a favorable opinion by the Authority responsible for protecting the constraints themselves does not allow the regulatory preclusion to the remedying of the abuse in question to be overcome; hence the futility of obtaining the aforementioned opinion.

The rejection of the application for amnesty as a due and binding act

The TAR Rome, section. II quater, in the sentence. 14 September 2026, n. 14882, recalled the orientation according to which “the rejection of an application for building amnesty constitutes an act which is due and bound to the finding of the non-existence of the conditions established for this purpose by the legislation referred to in Legislative Decree no. 269/2003, converted into law no. 326/2003. It follows that, for the purposes of the validity of the contested denial, the failure to establish the intra-procedural cross-examination is irrelevant unless the interested party fulfills the burden of demonstrating that the cross-examination would have led to a different final outcome.”(6).

Notes

(1) The first two amnesties were governed by articles. 31 et seq. of law 28 February 1985, n. 47 and art. 39 of law 23 December 1994, n. 724.
(2) See also TAR Campania, Salerno, sec. II, sentence. 14 November 2024, n. 2160: “The art. 32 of Legislative Decree 269/2003, letter. a of paragraph 26, establishes that: “the types of offenses referred to in Annex 1 … numbers from 1 to 3, within the entire national territory, are susceptible to building amnesty, without prejudice to the provisions of letter and paragraph 27 of this article, as well as 4, 5 and 6 within the buildings subject to restrictions referred to in article 32 of law 28 February 1985, no. 47”; to the letter d of paragraph 27, adds that: “without prejudice to the provisions of articles 32 and 33 of law no. 47 of 28 February 1985, abusive works are not in any case susceptible to amnesty if … they have been carried out on properties subject to constraints imposed on the basis of state and regional laws for the protection of hydrogeological and aquifer interests, environmental and landscape assets, as well as national, regional and provincial parks and protected areas if established before the execution of said works, in the absence or non-compliance of the building permit and not compliant with urban planning regulations and the requirements of urban planning instruments”.
In accordance with a precise literal interpretation of the two provisions (letter a of paragraph 26 and letter d of paragraph 27 of art. 32 of Legislative Decree 269/2003) in conjunction with the articles. 32 and 33 of ln 47/1985, it is clear that sine titulo interventions are not condonable: a) if subjected to pre-existing restrictions of absolute non-buildability, regardless of the building category to which they belong and whether or not they comply with the applicable urban planning regulations; b) where they can be included among the larger interventions (new constructions and building renovations) and carried out on properties subject to restrictions (pre-existing or supervening) of even relative non-buildability (when imposed on the basis of state and regional laws for the protection of hydrogeological interests and aquifers, environmental and landscape assets, as well as national, regional and provincial parks and protected areas), regardless of whether or not they comply with the applicable urban planning regulations; c) where included among the minor interventions (restoration, conservative rehabilitation, extraordinary maintenance), but carried out on properties subject to pre-existing constraints of non-buildability, even relative (when imposed on the basis of state and regional laws for the protection of hydrogeological interests and aquifers, environmental and landscape assets, as well as national, regional and provincial parks and protected areas), as well as in breach of the applicable urban planning regulations.
The third amnesty is, therefore, effective in reference only to minor abuses referred to in typologies 4, 5 and 6 of annex 1 to Legislative Decree 269/2003, carried out in restricted areas, if and insofar as they comply with the urban planning regulations and the requirements of the urban planning instruments; while it is not in relation to the major abuses referred to in typologies 1, 2 3 of the same annex 1 to Legislative Decree 269/2003, even if the restriction was imposed on the area following their execution and is of a relative nature, and even if the interventions comply with the urban planning regulations and the requirements of the urban planning instruments (TAR Salerno, 14.12.2020, 1930; State Council, sec. IV, 21 February 2017, section VI, 6 February 2018, section III, 20 May 2016.”
(3) Council of State, sec. VII, sentence, n. 11 June 2026, n. 4704, according to which “the silent consent provided for in the field of building amnesty is not formed only by virtue of the expiry of the deadline set for the express ruling by the administration and the fulfillment of the documentary and economic burdens necessary for the acceptance of the application, proof of all the subjective and objective requirements established by the law for the amnesty is also required, including the failure of the work to comply with the constraints of non-buildability”.
(4) Council of State, sec. II, sentence. n. 30 June 2021, n. 4975, according to which the formation of silent consent”is precluded both by the incompleteness of the documentation attached to the amnesty applications, so much so as to induce the Office to forward a request for documentary integration for each of them, and by the failure to obtain the opinion of the authority responsible for landscape protection, given the provisions of paragraph 27 of the art. 32 of Legislative Decree 269 of 2003, conv. with law n. 326 of 2003 (so-called third amnesty) where it uses the formula “without prejudice to the provisions of articles 32 and 33 of law 28 February 1985, n. 47”, rules which refer to “works built on areas subject to restrictions” providing that “the release of the building permit in amnesty for works carried out on properties subject to restrictions is subject to the favorable opinion of the administrations responsible for protecting the restriction same””.
(5) TAR Lazio, Rome, sec. IV ter, sentence. 19 July 2023, n. 12153.
(6) TAR Campania, Salerno, sec. II, sentence. 5 January 2024, n. 95, confirmed by the Council of State, sec. VI, sentence. 8 June 2026, n. 4630.