The art. 35 of the Consolidated Construction Law, regarding “Illegal interventions carried out on land owned by the State or public bodies”, provides the following:
“1. If it is ascertained that interventions have been carried out by persons other than those referred to in Article 28 in the absence of a building permit, or in total or partial non-compliance with the same, on land belonging to the State or the heritage of the State or public bodies, the manager or head of the office, after receiving a non-renewable warning, orders the person responsible for the abuse to demolish and restore the condition of the places, communicating this to the body that owns the land.
2. The demolition is carried out by the municipality and at the expense of the person responsible for the abuse.
3. The self-protection power of the State and territorial public bodies, as well as that of other public bodies, provided for by current legislation, remains unaffected.
3-bis. The provisions of this article also apply to building interventions referred to in article 23, paragraph 01, carried out in the absence of notification of the start of activity, or in total or partial non-compliance with it.”
Let’s see a recent ruling that reiterates the correct procedural process that must be adopted in the case of building abuse on public land.
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Failure to adopt the demolition order before the damaging demolition
The recent ruling. 8 July 2026, n. 1296, of the TAR Emilia-Romagna, Bologna, sec. I, offers us the opportunity to reiterate the correct procedural process that must be adopted in the case of building abuse on public land.
As highlighted by the judges:
- the notification of the “warning” – a prerequisite and prodromal act to the others of the sequel – must be followed by the notification of the “demolition order”;
- the order ordering the “official demolition” – which is nothing other than a real “execution against damage” and which therefore constitutes the last resort – takes over (and can take over the proceedings) exclusively in the case of continued and persistent non-compliance (i.e. non-compliance with both the warning and the demolition order).
The notification of the warning does not therefore allow us to proceed immediately afterwards – and, so to speak, “per saltum” (or, what expresses the same concept, “middle omitted”) – to “execution to the detriment”. And this was what happened in the specific case, in which the demolition order had not been adopted before the damage was carried out.
According to the judges, the prejudice suffered by the recipients as a result of the incorrect application of the rule was evident: they were illegitimately deprived of the possibility – which was and is their right – to comply “spontaneously”; that is, to proceed directly with the demolition and/or restoration to pristine condition, thus avoiding the so-called “official demolition” (with the resulting costly effects).
Even the jurisprudence dealing with the operation and correct application of art. 35 cited above, has affirmed on several occasions the need for the warning to be notified in advance, under penalty of illegitimacy of the consequent demolition order; which confirms, albeit implicitly, that these are two distinct acts (warning and demolition order) and both necessary for the sequence to be complete(1).
In this regard, it has been stated(2), in fact, that if it is ascertained that illegal construction has been carried out on state property or state property, “the manager or office manager, after a non-renewable warning, orders the person responsible for the abuse to demolish and restore the state of the place, communicating this to the body that owns the land”; this highlights that in the procedural sequence the “warning” does not exhaust its function and that in the case of non-compliance with the warning, the procedure must be completed with the demolition order.
Consequently, in the event of failure to adopt and notify the demolition order, the provision ordering the official demolition is illegitimate as it is untimely, because it was adopted too suddenly, before the necessary notification of the demolition order and the necessary verification of non-compliance therewith.
A different hypothesis: the absence of the warning
According to a consolidated orientation, the prior warning constitutes a prerequisite for the demolition order, so its absence makes the demolition act illegitimate(3), and fulfills the purpose of allowing the private individual to spontaneously comply with the demolition injunction before the adoption of the order which requires the demolition to be detrimental to him, by the Municipality and at the expense of the recipient of the measure; consequently, any deficiency could not be degraded to a merely formal, unsuitable element, pursuant to paragraph 2 of the art. 21 octies of Law no. 241/1990, to determine the illegitimacy of the contested provision(4).
In some rulings, however, it has been stated that the absence of the warning does not invalidate the sanctioning measure(5); according to one thesis, the warning can be replaced by the notice of initiation of the procedure (6); according to another, however, this possibility must be excluded as the function of that communication is different, in a phase designed solely to acquire elements of knowledge useful for the final determination (7).
It has also been stated that the warning could be contained in the demolition order itself(8), since it gives the private individual a deadline to take action on their own before public intervention.
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Notes
(1) TAR Campania, Naples, sec. IV, sentence. 12 February 2018, n. 933.
(2) TAR Lombardy, Milan, sec. II, sentence. 18 June 2019, n.1409.
(3) TAR Calabria, Catanzaro, sec. II, sentence. 16 May 2018, n. 1050 and sent. 7 February 2018, n. 368; TAR Campania, Salerno, section. II, sentence. 28 November 2024, n. 2324; section II, sentence. 24 April 2023, n. 928; sent. 10 July 2019, n. 1263; TAR Puglia, Bari, section. III, sentence. 25 September 2019, n. 1216; TAR Lombardy, Milan, section. II, sentence. 18 June 2019, n. 1409 and sent. 16 May 2019, n. 1115.
(4) TAR Campania, Salerno, sec. II, sentence. 28 November 2024, n. 2324.
(5) TAR Lombardy, Brescia, sec. II, sentence. 27 March 2024, n. 249; TAR Lazio, Latina, sec. II, sentence. 3 July 2024, n. 470; TAR Liguria, section. II, sentence. 17 January 2023, n. 17; TAR Tuscany, section. III, sentence. 13 July 2021, n. 1039.
(6) TAR Abruzzo, L’Aquila, sec. I, heard. 14 February 2020, n. 67; TAR Lombardia, Brescia, section. II, sentence. 27 March 2024, n. 249; TAR Lazio, Latina, sec. II, sentence. 11 January 2024, n. 26; section I, heard. 4 July 2022, n. 627; Council of State, sec. VI, sentence. 23 July 2019, n. 5208; TAR Tuscany, section. III, sentence. 2 January 2020, n. 2.
(7) TAR Lombardy, Milan, sec. II, sentence. 18 June 2019, n. 1409.
(8) TAR Calabria, Catanzaro, sec. II, sentence. 3 November 2022, n. 1940; sent. 5 April 2022, n. 599; sent. 8 July 2020, n. 1234; Council of State, sec. II, sentence. 5 July 2019, n. 4662; TAR Lazio, Latina, sec. II, sentence. 11 January 2024, n. 26.
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