The recent ruling of 11 March 2024, n. 196, of the Lazio TAR highlighted the mandatory limits imposed by Italian legislation regarding remediation of building violations in restricted areas, reaffirming the rigor of the regulations regarding construction and landscape protection.
This case raises significant questions about the possibility of condone constructions built in violation of landscape and cultural restrictionsbringing to light the complexities linked to the management of the Italian building and environmental heritage.
In the context of the “third building amnesty”, the jurisprudence underlines a crucial distinction between types of condonable and non-condonable interventions, thus outlining the boundaries within which the recovery of building abuses can be considered admissible.
Building abuses in restricted areas: the limits to the amnesty
The issue of building abuses in restricted areas, and their possible amnesty, represents a crucial issue in the management of the territory and its conservation. The recent ruling by the Lazio TAR highlights how the law places clear and well-defined limits on the possibility of repairing buildings built in violation of the constraints imposed for the protection of the landscape and cultural heritage.
As established by sentence no. 196 of 11 March 2024, the construction of a building in a restricted area was deemed incapable of amnesty pursuant to law no. 326/2003, showing a rigid interpretation of the rules that regulate the amnesty of building violations.
The decision is based on the finding that the works in question are not among those that can be condoned in restricted areas, thus outlining a principle of intransigence towards the violation of regulations aimed at protecting cultural and environmental heritage.
Third building amnesty and remedial works in restricted areas
The legislation on the third building amnesty offers a possibility of amnesty for certain categories of building abuses, but only under very specific conditions and with well-defined limits, especially with regard to restricted areas. In light of article 32 of legislative decree no. 269/2003 and regional provisions such as LR n. 12/2004 of Lazio, it clearly emerges that the only potentially remediable works in these areas are those of less relevance, as specified in the types of offense no. 4, 5, and 6 of Annex 1 of the decree.
Type of abusive works susceptible to amnesty under the conditions set out in article 32
Type 1. Works created in the absence or non-compliance of building permit and not compliant with urban planning regulations and the requirements of urban planning instruments;
Type 2. Works created in the absence or non-compliance of building permit, but compliant with the urban planning regulations and the provisions of the urban planning instruments on the date of entry into force of this provision;
Type 3. Building renovation works as defined from article 3, paragraph 1, letter d) of Presidential Decree 6 June 2001, n. 380 built in the absence or non-compliance with the building permit;
Type 4. Restoration and conservative rehabilitation works such as defined by article 3, paragraph 1, letter c) of Presidential Decree 6 June 2001, n. 380, built in the absence or non-compliance with the building permit, in the homogeneous A zones referred to in article 2 of the ministerial decree of 2 April 1968, n. 1444;
Type 5. Restoration and conservative rehabilitation works such as defined by article 3, paragraph 1, letter c) of Presidential Decree 6 June 2001, n. 380, built in the absence or non-compliance with the building permit;
Type 6. Extraordinary maintenance works, as defined to article 3, paragraph 1, letter b) of Presidential Decree 6 June 2001, n. 380, built in the absence or non-compliance with the building permit; works or methods of execution that cannot be assessed in terms of surface area or volume.
These typologies include restoration interventions, conservative rehabilitation, and extraordinary maintenance, which, although modifying the building in some way, they do not alter its volume or surface. The requirement of a favorable opinion from the Authority responsible for protecting the bond is important, a sine qua non condition for the approval of the amnesty.
In this way, we try to guarantee that even condonable interventions respect the needs of conservation and enhancement of the cultural and landscape heritage.
The key principle of this legislation is the clear separation between minor interventions, for which the possibility of amnesty is foreseen, and new constructions or substantial modifications, for which this possibility is excluded. This distinction underlines the attention towards the protection of restricted areas, considered of fundamental importance for the cultural and environmental heritage.
Administrative jurisprudence has further clarified this point, categorically excluding the possibility of remedying larger abuses, such as new constructions or interventions that involve an increase in volume or surface area, even if carried out in areas subject to relative constraints. This approach aims to preserve the integrity of the designated areas, preventing further damage and ensuring that every intervention respects the principles of protection and valorisation of the territory.
With this framework, we want to highlight how the third building amnesty, while offering a way for the regularization of certain irregularities, imposes severe and well-defined limits, in particular for areas of greater landscape and cultural value, thus reaffirming the commitment towards the protection and conservation of Italian heritage.
Conclusion: balancing regularization and heritage protection
The ruling of 11 March 2024 of the Lazio TAR, together with the body of legislation relating to the third building amnesty, highlights a fundamental principle in the management of the Italian building and landscape heritage: the need to balance the possibility of regularizing certain situations of building abuse with the essential need to protect cultural and environmental heritage.
Laws no. 326/2003 and LR Lazio n. 12/2004 outline a clear and stringent path for the amnesty of building abuses, reserving this possibility only for minor interventions and in restricted areas, always under the supervision of the authorities responsible for protecting the restrictions.
This vision, supported by jurisprudence, places Italy as an example of how the protection of the landscape and cultural heritage can coexist with the need to adapt the existing building fabric to contemporary needs, without compromising the fundamental values of conservation.
The ruling in question reiterates that new constructions or interventions that significantly alter the restricted areas remain outside the possibility of amnesty, reaffirming the importance of heritage protection in all its forms.