Amnesty and silent refusal: the TAR clarifies the priorities in construction proceedings

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Emma Potter

The recent ruling of the Campania Regional Administrative Court (n° 5370 of 2024), Eighth Section, marked a turning point for administrative proceedings related to seismic permits and to urban planning amnesty. The case examined concerned a property owner who, after having submitted an application for the building’s conformity assessment, found himself facing silence from the Campania Region.

From this context an important question arose: when and how can the “silence” of the authorities be interpreted as implicit refusal?

The TAR has established a fundamental guideline to clarify this point and establish priority between seismic authorization and building amnesty.

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The context of the case and the parties involved

The case covered by the sentence revolves around a citizen of Campania, owner of a property intended for residential use, who needed an assessment of seismic compliance to also make the underlying commercial premises fully usable.

After submitting a report for the start of works to the Campania Region, the appellant requested a certification for the seismic deposition, mandatory pursuant to art. 36 of Presidential Decree 380/2001, known as Consolidated Construction Law. This type of certification is fundamental not only for the safety of the property, but also for obtaining the residential title and full usability, both essential to regularize the entire structure.

The Campania Region, however, did not respond to the request within the expected deadlines, generating a situation of “silence-refusal”. This lack of feedback has created considerable inconvenience for the owner and the operators, who have also been affected by orders to close the commercial premises.

Faced with the failure to conclude the proceedings, the appellant therefore decided to appeal to the TAR to request the annulment of the silent refusal, trusting in a decision that could unblock the procedure.

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The meaning of “silence-refusal” and “silence-rejection” in administrative proceedings

A central element of this ruling concerns the interpretation of the concepts of “silence-refusal” And “silence-rejection” in the administrative field. When the authorities do not respond within the deadlines to a request for verification or authorization, silence can take on different connotations, each with specific implications for the citizen.

In this case, the appellant interpreted the Region’s silence as a implicit refusal of the seismic authorization requested, therefore expecting that the institution would be required to conclude the procedure. However, according to the TAR, this silence actually represented a “silence-rejection”, not of non-compliance but of tacit denial of the request.

This distinction is fundamental: “silence-refusal” typically applies to cases in which the Public Administration fails to conclude a procedure that must necessarily have a positive or negative outcome. The “silence-rejection”, on the other hand, is considered a negative response due to the expiry of the deadline and implies that the request has, in fact, been rejected.

Understanding these concepts allows citizens and professionals to better understand the times and methods for presenting any appeals.

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Reasons for the sentence

The TAR Campania clarified in the sentence a key point for building proceedings: the priority of the assessment of urban planning compliance over the seismic authorisation. The appellant believed that theseismic authorization was an essential condition for obtaining the building amnesty, but the court confirmed that the opposite is true.

In fact, only once the amnesty has been obtained is it possible to request and complete the seismic deposit at the Civil Engineering Department. In the absence of the urban planning amnesty, therefore, the seismic authorization cannot be issued, since the law does not allow regularizing buildings that do not comply with the basic urban planning regulations.

The sentence refers to consolidated jurisprudence which clarifies that, in case of failure to respond by the Public Administration, a silent rejection is formed on the amnesty request (as per CdS 2567/2023).

This tacit rejection releases the administration from the obligation to provide further responses, since the request has already been implicitly rejected. In the case of the appellant, the failure to grant the amnesty therefore canceled any possibility of proceeding with the seismic authorisation, leading to the declaration of inadmissibility of the appeal.

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Practical implications

The Campania TAR ruling clearly highlights that, to avoid bureaucratic impasses and slowdowns, it is essential to respect the logical and legal sequence of urban planning and seismic procedures.

In the specific case, the appellant attempted to obtain seismic authorization for a property without urban planning amnesty, but the court established that urban planning compliance is an indispensable prerequisite.

This principle underlines the importance, for technicians and citizens, of having a thorough knowledge of the regulatory requirements in the construction sector, so as to avoid requests that can be automatically rejected due to procedural defects.

Furthermore, the TAR reiterated that the “silence” of the Administration is not always a failure on the part of the Public Administration, but can also constitute a tacit rejection of the request, as happened in this case. This implies that, if the Municipality or other body does not respond within the deadlines, those requesting an amnesty must interpret this silence as a denial and proceed promptly with the appropriate legal actions, under penalty of losing interest in the appeal.

To avoid delays and misunderstandings, it is therefore advisable to make use of expert consultants and monitor all phases of the procedure.

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