Building amnesty and change of use: without photographic evidence the denial is legitimate

The mitigation of the burden of proof according to reasonableness

It is also true that jurisprudence attenuates the rigor of the evidentiary burden “according to reasonableness” in cases in which the private individual, on the one hand, brings relevant elements (for example, aerial photography) to support his thesis on the realization of the intervention before a certain date and, on the other, either the public administration does not duly analyze these elements or there are uncertain elements regarding the presumable date of the construction of the building without a building permit. In this case, the use of proof based on presumptions is not excluded, on the basis of prognostic evaluations based on known facts or maxims of common experience, thus inferring, according to normal criteria, the probable date of such completion from a set of documentary, photographic and certifying data, necessary in contexts which are either too complex or where cartographic and photographic findings are scarce (4).

In essence, the private party’s deduction of concrete factual elements relating to the time of the abuse can transfer the burden of proof to the contrary to the administration(5); however, this is because there are actually elements capable of providing a relevant evidentiary framework of the date of the abuse, such as dating back cadastral data, the nature of the materials used, the testimonies given in other proceedings; even declarations in lieu of affidavits are considered usable provided that there are other new, precise and concordant elements (6).

The characteristics of the test

Evidence regarding the date of completion of the works “it must be rigorous and must be based on certain and unambiguous documentation and in any case on objective elements, any declarations in lieu of an affidavit or mere declarations made by third parties having no relevance, as they cannot be verified”(7); in the absence of documentation with the aforementioned characteristics, the Administration is required to deny the amnesty of the abuse(8).

Likewise, even if significant doubts emerge as to whether the abuse actually occurred, the Administration can deny the amnesty, without placing any burden on it to provide, in turn, an independent statement regarding the moment in which the interventions represented were implemented (9).

As regards the range of evidentiary tools admissible for the purposes of proving the moment in which the abuse occurred, a consolidated jurisprudential orientation holds that self-declarations cannot be used in administrative proceedings and that they do not have any effective probative value, as they can only constitute evidence which, in the absence of other new, precise and concordant elements, does not appear to be ex se capable of undermining the investigation activity of the administration – that is, the deductions with which the administration itself highlights the unreliability of what is represented by the applicant (10). And in fact, even in the presence of a declaration in lieu of an affidavit, where no elements are found which unequivocally demonstrate the completion of the building by the date set by law, given that the said affidavit cannot rise to the rank of proof, albeit presumptive, on the time of the abuse – proof regarding the certain date of completion of the works cannot be considered to have been achieved(11).

And furthermore, as stated by the jurisprudence, “In the absence of substantial circumstantial elements, the testimonial evidence, in light of its margins and the cautions that surround it, cannot find entry”(12).

A recent concrete case regarding change of intended use and photographic evidence

Photographic evidence is particularly important when it comes to documenting the change in intended use; and in fact, the recent ruling. 8 April 2026, n. 493, of the TAR Lombardia, Brescia, sec. II, considered the denial of the building amnesty concerning a change from a tool shed to a residence to be legitimate in the face of photographic evidence which represents the property only from the outside and, therefore, incapable of proving in any way the date on which the change took place.

In light of the principles indicated, for the purposes of proving that the intended use has changed from a tool shed to a residence subject to an amnesty application, the following elements were not considered sufficient:

• a declaration in lieu of an affidavit filed together with the amnesty application, to which some photographic findings were attached; the latter, however, were limited to only an external reproduction of the object of the amnesty, from which no perceptible sign of the alleged change of intended use from tool shed to residence could be detected;
• a documentary integration with which the technician of the requesting party sent the stacking procedure and the certificate of payment of the oblation to the Municipality but no photograph;
• a new integration in which the requesting party’s technician attached some technical documents, but again no photographs;
• a request for documentary integration from the Municipality requesting a series of documents, including, in particular “detailed photographic documentation of the internal spaces”;
• the acknowledgment note to this request from the applicant’s technician with which some documents were transmitted, including “n.° 4 copies of photographic documentation (one color copy) overview of the artefact object of the offence”; these photographs represented the artefact only from the outside (the “overview of the artefact”, as the technical editor of the note said);
• a further request for documentary integration from the Municipality in which a response was requested to the previous request for documents attached to the document, which requested, among other things, a “detailed photographic documentation of the internal spaces”;
• the interested party’s lawyer had responded to this request with a note in which he stated that the requested documentation would be “promptly sent to the Municipality in due time” and attaching as proof “copy of the accompanying letters”, but not the documentation itself, so even in this case the photographic documentation of the internal spaces had not been attached;
• the denial notice adopted by the administration which communicates “the initiation of the procedure for issuing the rejection of the amnesty application“, reiterating that “the documentation produced (…) is not complete with the necessary photographic documentation”;

In essence, it was quite clear that the amnesty applicant had failed during the entire administrative procedure to attach the photographic documentation suitable to prove the change of intended use had occurred within the date set by the amnesty legislation (in the specific case, it was the 2003 amnesty, which provided for the deadline of 31 March 2003); the documentation had been requested by the administration but never actually delivered.

Notes

(1) Council of State, sec. VII, sentence. 1 August 2024, n. 6925; section II, sentence. 21 January 2025, n. 434; TAR Lombardy, Milan, section. I, heard. 22 December 2020, n. 2576.
(2) Council of State, sec. II, sentence. 21 January 2025, n. 434; TAR Lazio, Rome, section. II, sentence. 4 December 2023, n. 18165.
(3) TAR Lombardy, Milan, sec. IV, sent, 14 April 2025, n. 1326.
(4) Council of State, sec. VI, sentence. 13 November 2018, n. 6360; sent. 19 October 2018, n. 5988; sent. 18 July 2016, n. 3177.
(5) Council of State, sec. VI, sentence. March 16, 2020, n. 1890.
(6) Council of State, sec. II, sentence. 4 January 2021, n. 80.
(7) Council of State, sec. VII, sentence. 30 January 2024, n. 909; section VI, sentence. 7 December 2022, n. 10719; TAR Tuscany, section. III, sentence. 12 March 2020 n. 316: “The production in court of a declaration in lieu of certification, even if coming from a third party, is not sufficient to satisfy the burden of proof; this declaration, in fact, cannot constitute proof, not even presumptive, of the time when the abuse was carried out, as further documentary evidence is needed to prove with certainty the time when the work was carried out (TAR Lombardia, Milan, II, 4.9.2019, n. 1944; TAR Sicily, Palermo, III, 18.7.2018, n. 1631).”
(8) TAR Marche, section. I, heard. 29 January 2019, n. 57.
(9) Council of State, sec. VI, sentence. 3 May 2019, n. 2858; section II, sentence. 7 September 2020, n. 5382.
(10) Council of State, sec. IV, sentence. 29 May 2014, n. 2782 and sent. 27 May 2010, n. 3378.
(11) Council of State, sec. IV, sentence. 24 December 2008, n. 6548.
(12) Council of State, sec. VI, sentence. 25 September 2024, n. 7770; sent. 15 January 2025, n. 309.