The demolition order for the expansion
The matter examined by the Court of Cassation this time comes from afar. The demolition order in fact became irrevocable in 2008. The Court of Salerno had ascertained the non-compliance with building and landscape regulations of a building intervention in an area subject to landscape restrictions. It is a sort of portico, that is, a building made up of eight pillars and a concrete floor as well as a wooden platform planted in the concrete. The sentence had simultaneously ordered the demolition of the illegal works.
In the meantime, the property had passed into inheritance and the heir requested the suspension of the effectiveness of the injunction, having presented an application for taxation. For this reason he had also appealed to the TAR to obtain the adoption of the provision by the Municipality. The TAR had ascertained the silence-non-compliance on the taxation request, but the Court had nevertheless rejected the request and the owner. Hence the appeal to the Supreme Court.
The Municipality’s inertia is not enough to avoid demolition
The Court had based the rejection of the request for annulment on the undisputed circumstance that the Municipality had not issued any administrative measure incompatible with the execution of the demolition order, nor did it appear that its adoption was imminent. The Court of Cassation confirmed the Court’s decision as the TAR ruling, which limits itself to ascertaining the inertia of the entity that failed to respond to the request within the legal deadlines, does not bind the Municipality regarding the content of the measure to be adopted.
Likewise, the warning to comply notified subsequently is completely irrelevant: even assuming that the Municipality had done so within the ninety days, there was no element that allowed us to predict an outcome that would be favorable to the request and would therefore allow the replacement of the demolition obligation with the payment of the fine.
Furthermore, this is an option that is not permitted by law for unauthorized interventions, or in partial variations, in areas with landscape restrictions. Therefore, one cannot appeal solely to failure to comply with the terms when the substance of the abuse is incompatible with the rules on taxation.
Taxation and landscape restrictions, an impossible combination
The rules, the Court of Cassation recalls, in this area are decidedly clear. Taxation, provided for by art. 34, paragraph 2, of the TEU, is in fact applicable exclusively for works carried out in partial non-compliance with the building permit. This principle is valid in general but is in no way applicable to building interventions in areas subject to landscape restrictions.
In the areas subject to landscape restrictions, in fact, all interventions carried out in conflict with the authorization title are considered to be an essential variation and, consequently, in total discrepancy with respect to the authorized intervention. A type of abuse for which taxation is never applicable, regardless of the concrete characteristics of the work carried out. What makes the difference and therefore makes the alternative sanction to demolition inapplicable regardless is the location of the building itself. A fact that is evidently essential.
New surfaces and volumes, taxation never permitted
Furthermore, in the specific case, the ruling further underlines, it is also necessary to consider the second obstacle to taxation, which operates independently and cumulatively compared to the first. The alternative sanction is in any case inapplicable, based on the provisions of art. 34 of the TEU, to works that have led to the creation of additional surfaces and volumes.
In the case in question, the construction – eight pillars placed to support a concrete floor – unequivocally involved the creation of new volume. Taxation, therefore, cannot be permitted for this reason too. The two limits are both insurmountable: in the presence of only one of them – restricted area or new volumes – taxation is already excluded. No, therefore, to the appeal of the property owner.
Conditions of applicability of taxation (art. 34, co. 2, Presidential Decree 380/2001)
We see in this summary table the scope of application of alternative taxation to demolition:
|
Condition |
Applicable taxation |
|---|---|
|
Partial discrepancy, unrestricted area, without new volumes |
Yes |
|
Works in an area subject to landscape restrictions |
No – discrepancies are always considered essential variations/total discrepancies (Cass. no. 1443/2020) |
|
Works that involve new surfaces or volumes |
No – even in the absence of landscape restrictions (Cass. n. 40565/2024) |
|
Essential variation or total discrepancy |
No |
|
Works in the absence of a qualifying qualification |
No |
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