Assessment of conformity in cases of absence of title or total discrepancy: two recent sentences

Silence on the application

The Tar Marche, section II, in the sent. July 16, 2025, n. 583first focused on the value of the silence held by the Technical Office on the request for amnesty. Art. 36, paragraph 3, of Presidential Decree no. 380/2001 establishes that “On the request for permit in amnesty the manager or manager of the competent municipal office is pronounced with adequate motivationwithin sixty daysafter which the request is understood rejected“.

The jurisprudence (2) clarified that, despite the system introduced by articles 2 and 3 of law no. 241/1990, the silence tanted by the municipal administration on the application for assessment of conformity pursuant to art. 36 is the nature of Tacito act of rejection of the application and, therefore, of significant silence and not of silence refusal; It descends that, once the term sixty days has elapsed, the Silence denial (or silence rejection)That can be challenged by the interested party in the jurisdictional in the prescribed decadent term of sixty days, in the same way as a common provision, without the formal defects of the documents, such as the defects of procedure or the lack of motivation, can recognize in it.

In other words, said measure, as tacit, is already in itself without motivation and therefore it is challengeable not for the lack of the latter or for vices of preliminary investigation, but for its rejection content. It is the same rule that provides that, following the presentation of the application for assessment of conformity, no obligation to pronounce with an expressed provision on urban compliance or on other incident aspects on the healthiness of the illegal interventions, being the silence, the silence tanted on the aforementioned instance as a tacit rejection of the same (3), cannot be found.

The requirement of double conformity

The evidentiary burden on the requirement of double building and urban planning requested by art. 36; As highlighted by the Marche judges, obtaining the permit in Postula Sanatoria that the intervention complies with the urban and building regulations in force both at the time of the realization of the same, and at the time of the submission of the application, and therefore concerns only formal abuses.

In the specific case, this circumstance had been excluded as the work of which the amnesty was asked to fall both at the time of submitting the application and at the time of the application in motorway compliance band; This condition is in itself sufficient for deny the existence of the requirement of double complianceto exclude the healthiness of the work Same, being able to absurge self -refusal with a reasoning (4).

The nature of the measure adopted

The Tar Lazio, Rome, section II quater, in the sent. July 17, 2025, n. 14093reiterated the jurisprudential orientation according to which the procedure for verifying compliance former art. 36 DPRN 380/2001 leads to a Absolutely tied provisionwhich does not require any other motivation in addition to that relating to the correspondence (or not) of the abusive work to the urban-building prescriptions (and to those delivered by special health and/or landscape regulations) and at the time of realization of the abuse and that of submitting the application former art. 36 DPRN 380/2001.

The Roman judges also recalled that, when assessing conformity, it is entirely The burden of demonstrating the cd double conformity necessary for obtaining the building amnesty ordinary pursuant to art. 36 DPRN 380/2001, given the purpose of the Institute, according to which the release of the permit in the amnesty is indefectively presupposes the so -called double conformity, i.e. the non -opposition of the abusive artifact to the urban planning discipline in force both at the time of its realization and at the time of the presentation of the request for amnesty (5).

In the specific case, the judges said that the exceeding the cubic limit allowed is suitable, in itself, to justify the failure to accept the application (6).

Notes

(1) Art. 36 (L) – Assessment of conformity in the hypothesis of absence of title or total discrepancies
1. In the event of interventions carried out in the absence of building permit, or in discrepancies from it, or in the absence of certified report of the start of activity in the hypotheses referred to in Article 23, paragraph 01, or in total discrepancies from it and in any case until the expiry of the terms referred to in articles 31, paragraph 3, 33, paragraph 1, and in any case until the imposition of the administrative sanctions, the head of the abuse, or the current owner of the allowed in amnesty if the intervention complies with the urban and building regulations in force both at the time of the realization of the same, and at the time of submitting the application.
2
3
(2) Former MultisTar Campania Naples, section III, sent. April 23, 2024, n. 2754.
(3) In terms, Tar Campania Naples, section II, sent. August 9, 2021, n. 5469 and sent. 23 July 2012, n. 3507; Section III, sent. 22 August 2016, n. 4088 and sent. March 31, 2015, n. 1874; Tar Marche, section I, sent. 12 October 2010, n. 3340.
(4) The Constitutional Court has repeatedly dealt with the principle of ascertaining compliance pursuant to art. 36 of Presidential Decree no. 380/2001, stating “that it, which constitutes a “fundamental principle in the government matter of the territory” (last, sentence no. 107 of 2017), is “aimed at guaranteeing absolute respect for the urban and building regulations throughout the period between the realization of the work and the presentation of the application aimed at obtaining the assessment of compliance” (sentence no. 101 of 2013). This institute differs from the building amnesty, as “refers to the possibility of remedying works which, although substantially compliant with the urban and construction discipline, have been carried out in the absence of the title itself, or with essential variants”, where the building amnesty “has the effect of the amnesty not only formal but also substantial of the abuse, regardless of the compliance of the works carried out to the urban and building discipline” (sentence no. 50 of 2017)“(4).
(5) See,, Former MultisCouncil of State, section VI, sent. March 6, 2024, n. 2208.
(6) See, among the many, Council of State, Sec. V, sent. 17 September 2019, n. 6190.