The irrelevance of the different nature of subsequent works
The first consequence of this principle is that the further works carried out after the presentation of the amnesty application – even if internal or appurtenant, or abstractly attributable to the categories of ordinary/extraordinary maintenance, restoration and/or conservative rehabilitation, or building renovation – must be said to be abusive and a continuation of previous undue construction activity, repeating the characteristics of illegality of the main work to which they structurally belong.
The consequences of the execution of subsequent works
The second consequence, directly descending from the first, is that in these cases the municipal administration is obliged to order its demolition(3) pursuant to art. 31 of Presidential Decree 380/2001. Furthermore:
- “the realization of works subsequent to the request for amnesty entails theinadmissibility of the latter, this is because the carrying out of further works pays off no longer identifiable the consistency of the work in existence at the time of the request”(4);
- must be considered legitimate denial of pardon “which validly rests on non-conformity of the property compared to the one subject to amnestydenoting the carrying out of an abusive activity after the submission of the application, such as to distort the original appearance of the property and change its destination”(5).
It is true, as indicated by the Neapolitan judges in the aforementioned sentence. n. 1298/2024 which the prior presentation of the amnesty application precludes the adoption of repressive measures.
And in fact, every sanctioning procedure in construction matters must stop upon presentation of an application for amnesty and remain suspended until the relevant practice is resolved by the municipal administration, which the administrative judge cannot in any case replace, not even for an incidental assessment of the possible condonability of the works in question.
Nonetheless, it should be specified that this disqualifying effect remains predicable exclusively with respect to the abusive works declared in the amnesty application, as the aforementioned request evidently cannot interfere with the ordinary exercise of the repressive power of abuses further and different from those for which the amnesty is requested. amnesty.
What interventions are possible, however?
Without prejudice to the continuations permitted in compliance with the procedures set out in the art. 35 of law no. 47 of 1985(6), according to jurisprudence, However, it is not possible to absolutely deny the possibility of intervening on properties for which the amnesty application is pending; in fact, it was specified that:
- it is possible on properties subject to amnesty intervene with ordinary maintenance work aimed at eliminate a state of danger or degradation irreversible(7); this appears logical, as the notoriously long times to process the amnesty procedures do not allow us to wait for the property to fully deteriorate and then proceed with maintenance works which could prove to be no longer effective;
- “it is not compatible with the principles, including constitutional ones, of the legal system to deprive the owner of the right of ownership of a property of the possibility of carrying out maintenance work, having as its sole purpose the protection of the integrity of the building and preservation of its functionality, without altering the external appearance (shape and volume) of the building, this certainly represents an injury to the minimum content of the property which even affects the essence itself and the possibilities of maintaining and conserving the property, producing an inevitable deterioration of it, with consequent reduction into poor condition and a progressive abandonment and perishing of the same. Therefore, the owner cannot be prevented from intervening on his property, in order to avoid the progressive unusability and destruction of the building, in relation to the intended use inherent to its nature (see Constitutional Court, sentence no. 238 of 2000; in terms also Council of State, IV, 14 July 2015, n. 3505); Therefore, an intervention aimed at preserving the property and eliminating the danger becomes legitimate”(8).
In one concrete case, it was retained admissible”the installation of “ondulines” and replacement of copper gutters and downspouts” That”it can well be configured which one ordinary maintenance not subject to the issuing of a building permiteven if the main property is the subject of a building amnesty request, given that the creation of useful surfaces or volumes or the increase of those subject to previous approval is excluded (State Council, Section I, par. 8.5.20 , n. 875)”(9).
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Note
(1) Which, as is known, has a precise confessional value of abuse: Council of State, sec. IV, sentence. 17 August 2022 n. 7191; TAR Lombardy, Milan, section. II, sentence. 10 November 2023, n. 2606.
(2) TAR Campania, Salerno, sec. II, sentence. 31 January 2024, n. 323; section I, heard. November 13, 2023, n. 2585; Naples, section. IV, sentence. 28 May 2020 n. 2062.
(3) TAR Campania, Salerno, sec. II, sentence. 31 January 2024, n. 323.
(4) TAR Campania, Naples, sec. III, sentence. 6 November 2018, n. 6445, recalling the sentence. n. 28 August 2014, n. 4612 of the same section.
(5) TAR Campania, Naples, sec. III, sentence. 6 November 2018, n. 6445.
(6) Council of State, sec. VI, sentence. 17 October 2022, n. 8804; section VII, sentence. 19 January 2023, n. 667; TAR Campania, Naples, section. IV, sentence. 28 May 2020, n. 2062.
(7) TAR Campania, Naples, sec. III, sentence. 6 November 2018, n. 6445.
(8) TAR Lombardy, Milan, sec. II, sentence. 22 July 2019, n. 1695.
(9) TAR Lazio, Latina, sentence. 5 May 2023, n. 300.
