Building Amnesty: clarifications from the Lazio Region on landscape compatibility


Emma Potter

The Lazio Region has recently provided new and significant indications regarding building amnesty and amnesty, with particular reference to the release of the opinion of landscape compatibility.

This topic, always at the center of extensive discussions, specifically concerns the procedures linked to applications for building amnesty according to laws no. 47/1985, n. 724/1994, n. 326/2003 and the assessment of conformity pursuant to art. 36 of Presidential Decree 380/2001.

The management body of the Castelli Romani Park, addressing its request to the Regional Environment Directorate, raised issues of fundamental importance for the protection of the landscape heritage in the protected area, relaunching a debate on the correct approach to be adopted towards building abuses carried out before the establishment of protected areas.

Clarifications from the Lazio Region: Amnesty and amnesty in restricted areas

The Regional Environment Directorate of the Lazio Region issued a circular on 1 February 2024, number 348, which provides crucial clarifications on the management of applications for building amnesty in restricted areas.

This circular underlines the principle of “tempus regit actum“, or the need to evaluate the applications for amnesty and amnesty according to the legislation and constraints in force at the time of the conclusion of the administrative procedure. This orientation is based on a ruling by the Lazio TAR (n. 10296/2022), which reiterated the importance of the current legislation and the constraints that have arisen, regardless of the date of the construction abuse or the presentation of the amnesty application.

The TAR confirmed that the Public Administration's approach must be guided by the law in force, thus promoting the protection of the public interest without prejudice based on the temporality of the introduction of constraints or regulations.

This approach respects the jurisprudence established by Plenary Assembly no. 20/1999, ensuring that each procedure is conducted in compliance with current regulations, to protect the integrity of the landscape and the territory.

Analysis of the Regulations on Building Amnesty

The complexity of the regulatory framework regarding building amnesty is further highlighted by the differentiation between the various applicable laws, based on the time of submission of the application.

The Lazio Region, referring to a sentence of the TAR Lazio, Latina, section. I, n. 47/2020, clarified that the changes introduced by law no. 326/2003, in particular the art. 32, paragraph 43-bis1, they do not apply retroactively to amnesty applications presented pursuant to previous laws (n. 47/1985 and n. 724/1994).

This means that applications must be evaluated considering the requirements and parameters in force at the time of their submissionin line with the applicable law ratione temporis.

This interpretation serves to prevent the application of more restrictive rules to previous situations, safeguarding the interests of applicants who submitted their requests based on previous legislation. This underlines the importance of an assessment that is fair and compliant with specific legislative provisions, thus avoiding potential injustices arising from regulatory developments.

One of the most relevant aspects dealt with by the Lazio Region concerns the mandatory and preventive nature of the landscape clearance for the building permit in amnesty, as required by the art. 28 of regional law 29/1997 and art. 36 of Presidential Decree 380/2001.

The regional management specified that the landscape clearance it cannot be released retrospectivelyas it acts as a preventive tool for the conservation and enhancement of environmental heritage.

This provision underlines the intent to guarantee that every building intervention within a protected natural area is previously assessed by the Park Management Body, with the aim of protecting the landscape and environmental constraints. In this way, we try to prevent damage to the environmental heritage, ensuring that the permitted activities are compatible with the conservation objectives of the area.

The position of the Lazio Region, therefore, confirms the need for a precautionary and preventive approach in the authorization of construction activities in restricted areas, privileging the protection of the landscape and environmental heritage over the needs of posthumous regularization of building abuses.