A building abuse is forever: no amnesty over time or with subsequent acts

Minimum distances and partial demolition

The case concerns a building built as part of an Economic and Popular Building Plan with surface rights on a municipal area. The 1981 concession expressly provided for a distance of 5 meters from the North and South borders. The building was instead built 4.45 meters to the North and 3.96 meters to the South, as well as less than 10 meters from the building opposite.

In 2023, following an inspection, the Municipality issued a partial demolition order, with one side set back by approximately one metre. The owners challenged the provision at the TAR, claiming that they had received the certificate of usability from the Municipality and the green light for the construction of a reception, acts which made them believe they were safe from any problems relating to the construction itself.

They also referred to a subsequent PEEP in derogation and to the landscaping authorization subsequently obtained. Considerations rejected by the Council of State and obligation of partial demolition confirmed.

Subsequent usability and concessions are never valid as an amnesty

In the sentence, the Board examines all the acts subsequent to the construction that the appellants invoked as implicit amnesties or causes of legitimation, excluding them one by one. In detail:

1. The certificate of usability issued in 1983 certifies the healthiness of the use, not the urban planning regularity. Even when it presupposes a building compliance check, this is only functional to the release of usability and does not produce effects in terms of building permits. And this also applies when the building is located in a PEEP, where the Municipality is required to carry out more stringent controls.
2. The 1983 building permit for the fence does not constitute an implicit amnesty for the non-conformity of the building: it only concerned the fence on the street front and did not indicate the distances of the house from the borders, elements which were therefore not detectable by the project presented.
3. The communications of the start of ordinary maintenance works in 2011 and 2015, received by the Municipality without observations, do not produce any healing effect: the maintenance interventions did not affect the location of the building in relation to the lot.
4. The passage of time between construction and demolition order does not generate protectable trust. The repression of abuse is a mandatory activity for the Municipality, which does not have discretion in proceeding. The relevant period is not that between the commission of the abuse and the provision, but that between the administration’s knowledge of the offense and the provision itself. In the absence of knowledge of the offence, no legally appreciable trust is consolidated.
5. The PEEP area plan with a minimum distance from the borders of only 4 meters does not derogate from the art. 9 Ministerial Decree 1444/1968: the exception to the distances between buildings is permitted only for groups of buildings covered by detailed plans or subdivisions agreed with planovolumetric forecasts, a condition not recurring in the present case, where the building permit is autonomous and concerns a single property.
6. The landscape compatibility released in 2025 does not lead to any amnesty: the landscape assessment is distinct and autonomous with respect to urban planning and building regularity.
7. The good faith of subsequent buyers is irrelevant: the measure requiring partial demolition ignores the responsibility of the current owner and also applies to those who did not commit the violation. The discrepancy from the building permit and the distance lower than that required by law, moreover, are external aspects that can be perceived with ordinary diligence.

And in this specific case, the CdS further explains, not even taxation is permitted.

No excuses if the Municipality granted a smaller lot

The appeal also proposed the taxation of the abuse pursuant to art. 34 of the TEU, which allows the replacement of demolition with a financial penalty in cases of partial non-conformity, when demolition is not possible without prejudice to the compliant part.

However, the Council of State excludes this path precisely because of the type of abuse which is not configured as a “partial discrepancy” but as an “essential variation”, as the specific exception to the minimum separation provided for in paragraph 3 of the art. 9 Ministerial Decree 1444/1968 applies only in the case of groups of buildings that are the subject of detailed plans or subdivisions agreed with planovolumetric forecasts”, a circumstance not foreseen in this case.

Nor is it possible to appeal to the fact that the lot granted by the Municipality in this case was smaller than expected because it was up to the builders to ascertain this “through the use of ordinary diligence”. So no to taxation and partial demolition order to be respected.