With sentence no. 10076/2024, the Council of State reiterated a fundamental principle regarding building abuse: it is not always possible to avoid the demolition of a building built without respecting urban planning regulations, not even with the payment of a fine.
At the center of this decision is an industrial warehouse located in Umbria, built with a building permit from 2009, which was later canceled because the intended use granted did not comply with the urban planning instruments of the time.
In an attempt to avoid demolition, the owners of the property had requested the so-called “taxation of abuse”, i.e. the possibility of maintaining the structure by paying a fine. However, the Council of State clarified that this instrument is applicable only in the case of formal irregularities or procedural, not when the abuse is linked to substantial discrepancies, such as conflict with urban planning rules.
But what are the limits of this possibility of amnesty? And when can a property really be regularized? Let’s analyze this ruling in detail which could have important consequences for the construction sector.
Advertisement – Advertising
The warehouse that sparked the legal dispute
The matter which is the subject of the sentence originated in 2009, when a company obtained a building permit from the Municipality of Passignano sul Trasimeno for the construction of a industrial warehouse intended for mechanical workshop. However, a neighboring owner challenged the authorization before the Regional Administrative Court (TAR) of Umbria, claiming that the intervention did not comply with the urban planning regulations in force in the area concerned.
The TAR accepted the appeal, canceling the building permit since the authorized intended use (mechanical workshop for private individuals) was not compatible with the urban planning regulations of the time, which only allowed activities related to the public transport service or activities related to collective mobility. Despite the cancellation, the construction of the warehouse was completed and the business started.
Over the following years, the owners attempted several times to regularize the situation, also requesting a new amnesty building permit and, finally, the “taxation of abuse”, a procedure that allows you to avoid demolition by paying a financial penalty, provided for by article 38 of Presidential Decree 380/2001. However, the Municipality denied this possibility, initiating procedures for the demolition of the building.
The decision was appealed again before the Council of StateThat confirmed the denialbelieving that the defect in the building permit was of a substantial nature and, therefore, could not be remedied by simply paying a fine.
Advertisement – Advertising
Regulations and taxation: why can’t all abuses be remedied?
At the center of the Council of State’s decision is the interpretation of article 38 of Presidential Decree 380/2001, the Consolidated Construction Law, which regulates the so-called “taxation of building abuses“. This mechanism allows, in certain circumstances, to avoid the demolition of an irregular property through the payment of a financial penalty.
However, the rule clearly establishes that taxation is applicable only in case of defects of nature formal or proceduralsuch as errors in the management of authorizations or documentary deficiencies. However, it cannot be granted when the building permit has been canceled for substantial defectsor by contrast with urban planning regulations, as happened in the case of Passignano sul Trasimeno.
In the specific case, the permit had been issued for a use of the property (workshop for private individuals) which was not consistent with the intended use envisaged by the master plan of the time, which only allowed activities linked to public transport and collective mobility. This type of irregularity is considered a substantial defectwhich cannot be remedied by paying a fine.
The ruling also highlights that the so-called “double compliance” it is essential for the building amnesty: a work must comply with both the urban planning regulations in force at the time of construction and with the current ones.
In the case in question, since this double conformity does not exist, the Council of State confirmed the legitimacy of the denial of the amnesty.
Advertisement – Advertising
Conclusion
Sentence no. 10076/2024 of the Council of State represents a clear warning for those who work in the construction sector: compliance with urban planning regulations and the correct intended use of properties are not negotiable aspects. The possibility of remedying a building violation through the taxation is reserved exclusively for formal and procedural errors, while i substantial defectssuch as the conflict with the master plan, impose the obligation to demolish the property.
This ruling underlines the importance of a more attentive approach to urban planning compliance from the early planning stages, discouraging any attempt to circumvent the rules through subsequent regulatory changes.
