Abusive works demolition: when does it compete with the prefect?

The condition for the competence of the Prefect to exist

According to the jurisprudence, “The demolition/reduction order in pristine (as made clear by the distinction between the two activities contained in paragraphs 2 and 3 of art. 27, DPRN 380/2001) presuppose (and does not constitute) the assessment of the abusewhich derives from the inspection and feedback reports that identify and describe the work carried out. It follows that, where the local authority has issued the demolition order (which therefore constitutes the start of the executive procedure, posts its enforceability and imperativity, such as to determine, in the event of non -compliance, effects ex lege of ablation of private property and its acquisition for the proceeding local body) Within 180 days from the assessment of the abuse (operated in the context of the function of the “supervision” referred to in art. 27, DPRN 380/2001 by the verbalizing staff), The substitute competence of the prefect is not rooted“(1).

In essence, as recently reiterated by Tar Calabria, Reggio Calabria, in the sent. March 18, 2025, n. 184The assumption to make the transfer of competence operate to have the demolition procedures from the Municipality to the Prefect is made up of the failure to start this procedure within 180 days from the assessment of the abuse and, in concrete terms, this is to be identified not in the omitted start of the public evidence procedures for the assignment of the demolition works but in thefailure to issue the demolition orderwhich constitutes precisely theStart of the executive procedurein the 180 days following the assessment.

The specific case

In the specific case assessed by the judges Reggini, the following sequence had had:

• On 4.10.2017 the Superintendency Archaeological, fine arts and landscape the presence of multiple transformations reported to the Municipalityconsisting of changes and expansions on some artifacts;
• On 8.3.2018 the inspection by the Municipality was carried out with the identification and assessment of the abuses and the identification of the managers;
• On 4.4.2018 the demolition order was adopted the abusive works indicated therein;
• on 30.5.2022 the Municipalityacclaimed the failure to fulfill the demolition order, adopted the report of spontaneous default object of appeal.

From what now exposed it is clear that in this case there was a demolition measure (the order adopted on 4.4.2018) never failed and which, with the minutes, was ascertained as not performed spontaneouslywith all the consequences provided for by law.

Now, regardless of the value of the transfer of the power provided for by art. 41 of Presidential Decree no. 380 of 2001 – that is, if alternative, as stated in some pronouncements (2) or competitor, as highlighted in other sentences (3), in the specific case faced by the judges of Reggini The transfer of competence to the Prefect could not be considered which did not exist by the relative conditionsgiven that the demolition order had been adopted promptly, that is, within 180 days from the assessment of the abuse, and had never failed.

Notes

(1) Tar Lazio, Rome, section II, sent. March 13, 2023, n. 4422.
(2) Tar Lazio, Rome, section II, sent 13 March 2023, n. 4422.
(3) TAR LAZIO, LATINA, SEZ. II, sent. October 26, 2023, n.751: “The competence specifies to put in place the demolition procedures appears conferred by the law in via Competuante both to the Municipality and to the Prefect, as can be seen from the combined provisions of the articles 27, 31, paragraph 5 and 41, DPR n. 380/2001 cit. (See Tar Campania, Salerno, Section II, April 17, 2023, n. 861)“.