The management of building abuses and the granting of amnesties are always complex issues, which require a careful analysis of the circumstances and the current legislation. In particular, the ruling of the TAR Sicilia n. 2906 of 23 August 2024 offers an important interpretation regarding the burden of proof in the matter of building abuses.
This ruling confirmed the rejection of an application for a building amnesty and the demolition order of a property, built in violation of the absolute non-buildability constraint.
But how did this decision come about?
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The appellant’s responsibility in the burden of proof
In the context of building abuses, one of the fundamental aspects concerns who must demonstrate when the property subject to the amnesty was actually built. The ruling of the TAR Sicilia reiterates that the burden of proof lies with the person who committed the abuse. This means that the applicant must provide precise and unequivocal documentation on the date of construction of the property, since only in this way is it possible to verify whether the building falls within the terms to benefit from the amnesty regulations.
In this specific case, the property had been built in aarea subject to an absolute building banand the municipality had rejected the amnesty request based on the failure to submit crucial documents, such as proof of the construction date.
Although the applicant argued that the difficulties were attributable to the lack of response from the competent authorities, the Court clarified that this responsibility falls on the person requesting the amnesty. In the absence of concrete evidence, the Municipality therefore legitimately rejected the application, reinforcing the principle according to which the failure to produce sufficient evidence is sufficient to justify the rejection of an application for amnesty.
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The absolute non-buildability constraint: an insurmountable obstacle
A key element that led to the rejection of the amnesty by the Municipality and to the confirmation of the sentence of the TAR Sicily concerns the absolute non-buildability constraint. The property in question had been built in a particularly protected area, less than 150 meters from the sea shorean area where, pursuant to art. 15 of LR Sicilia n. 78/1976, there is a categorical ban on building.
Article No. 15
For the purposes of the formation of general municipal urban planning tools, the following requirements must be observed in all homogeneous zones with the exception of zones A and B, in addition to the provisions in force:
a) buildings must be set back 150 metres from the shoreline; within this range, works and installations intended for the direct use of the sea are permitted, as well as the restructuring of existing buildings without altering the volumes already constructed;
b) within a depth of 500 metres from the shoreline, the maximum territorial building density index is determined as 0.75 cubic metres/m2;
c) in the area between 500 and 1,000 metres from the shoreline, the maximum territorial building density index is set at 1.50 cubic metres/m2;
d) buildings, except those directly intended for the regulation of water flow, must be set back 100 metres from the shoreline of the lakes measured in the maximum flood configuration;
e) buildings must be set back 200 metres from the edge of woods, forest strips and the boundaries of archaeological parks.
Within the territory of the Region, the provision contained in the third paragraph of art. 17 of law 6/8/1967, n. 765 is not applicable.
This constraint is of a non-derogable nature, as it concerns the landscape and environmental protection of the coasts.
The appellant attempted to argue that, in the absence of an explicit response from the Superintendency, tacit consent should have been formed, which would have allowed the regularization of the property. However, the TAR clarified that the principle of tacit consent cannot be applied in areas subject to absolute non-buildability constraints, since the law explicitly prohibits any form of construction.
In such contexts, no favourable provision can be legitimised, not even implicitly, through the mechanism of administrative silence.
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The legitimacy of the rejection of the pardon request
In light of the circumstances examined, the TAR Sicilia deemed the rejection of the building amnesty by the Municipality to be legitimate. The ruling underlines how the municipal administration acted correctly in rejecting the request for regularization, not only due to the lack of sufficient documentation, but also because the property in question could not in any case benefit from the amnesty, having been built in an area subject to an absolute non-buildability constraint. Furthermore, the TAR reiterated that it is always up to the appellant to demonstrate the construction date of the property, an element that was not adequately proven in this case.
In the absence of such evidence, the Municipality is fully entitled to deny the amnesty and, consequently, to proceed with the demolition order of the building. This decision confirms a consolidated jurisprudential orientation, which places a strong responsibility on the person who committed the building abuse, obliging him to provide the necessary evidence to be able to access the amnesty regulations.
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The consequences of the ruling: demolition and landscape constraints
Sentence no. 2906 of 23 August 2024 of the TAR Sicily not only confirmed the rejection of the amnesty, but also established that the building must be demolished, as it was built in an area subject to an absolute non-buildability constraint. In this context, the legislation leaves no room for any derogation or possibility of amnesty.
The distance from the shoreline, less than 150 meters, falls within the strictest limitations set by LR Sicilia n. 78/1976, making any construction in that area illegal by law.
Finally, the TAR clarified that no landscape authorization, nor tacit consent, can prevail over an absolute non-buildability restriction. This type of restriction, in fact, is not only intended to protect the landscape, but to preserve the environmental integrity and safety of coastal areas.
Consequently, any building work carried out in violation of these constraints is destined to be demolished, without the possibility of regularization.
