In recent decades, the issue of building amnesty has been at the center of numerous legal disputes, especially in regions such as Sicily, where the landscape and cultural heritage is strongly protected.
The recent ruling by the TAR of Catania reaffirmed the importance of respecting landscape regulations in rejecting requests for building amnesty in protected areas.
But what happened in the case examined and what were the reasons that led to the rejection of the amnesty? What are the implications for those who wish to regularize properties in restricted areas?
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The case of the building amnesty rejected by the Municipality of Lipari
The case in question concerns a request for building amnesty presented for illegal works carried out on a property located in Liparic Islandsin the Aeolian Islands, an area subject to strict landscape and environmental constraints.
The works in question consisted of a overall expansion of 7.2 square metersdivided between an expansion of the underground garage (3.6 m2) and an expansion of the surface area of the terrace above (3.6 m2). This type of intervention, although small in size, was considered significant because it was carried out in an area protected by the Aeolian Territorial Landscape Plan, which imposes severe limitations on building activities.
The story begins with the submission of a request for amnesty pursuant to the Law 326/2003however, in July 2020, the Superintendency for Cultural and Environmental Heritage of Messina issued a negative opinion on the amnesty, motivated by the fact that the works were located in an area subject to a restriction temporary unbuildabilityestablished by the Departmental Decree n. 7720 of 1995.
This decree expressly prohibited the construction of new buildings in certain non-urbanized areas of the Aeolian archipelago, except in the areas classified as A, B and C, which correspond to inhabited centers equipped with primary and secondary infrastructures.
The works subject to amnesty had been built in 2002, after the temporary building ban came into force in 1995, making their amnesty de facto impossible.
The negative opinion of the Superintendency was recalled by the Municipality of Lipari in the final decision rejecting the request for regularization, issued in September 2020. The Municipality based its decision on the technical opinion of the Superintendency, deeming the works not compliant with the constraints imposed by the Territorial Landscape Plan and the decree of non-buildability.
The peculiarity of this case lies in the presence of extremely strict landscape constraintswhich leave no margin of tolerance even for small extensions or structural modifications such as those involving underground garages or terraces. The authorities have underlined that the area in which the illegal works were carried out, classified as an area “TO5” of the Landscape Planis particularly sensitive from an environmental and cultural point of view, and any new construction or modification to the landscape could have altered its conformation and natural aesthetics.
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The legal reasons for the rejection of the building amnesty
The rejection of the building amnesty, through the ruling of the TAR Sicily of 11 July 2024, n. 2508, is based on specific legal reasonsstrictly linked to the landscape and regulatory constraints that govern the area of the Aeolian Islands.
The Superintendency for Cultural and Environmental Heritage of Messina expressed a negative opinion, considering that the works subject to the amnesty were carried out in violation of a absolute non-buildability constraintimposed by the Council Decree n. 7720 of 1995. This decree was issued to safeguard the landscape of the Aeolian Islands during the drafting process of the Territorial Landscape Plan and prohibited any type of construction or building modification in non-urbanized areas (areas other than areas A, B and C).
The key aspect on which the rejection was based is the fact that the works had been carried out after the imposition of the restriction, precisely in 2002. In this context, even small-scale building interventions, such as the expansion of an underground garage or a terrace, cannot be regularised, since they fall in areas where any construction is prohibited from a landscape point of view.
Another important element is that the decision of rejection by the Municipality of Lipari was not autonomous, but was based entirely on the negative opinion of the Superintendencyrecalled for relation in the municipal provision. This means that the Municipality acted in accordance with the technical assessments of the Superintendency, which has exclusive jurisdiction over landscape protection.
Furthermore, the Law 326/2003which regulates building amnesties, provides that works built in violation of landscape constraints cannot be regularized, except in exceptional cases in which such works do not have a significant impact on the landscape. However, in this specific case, the Supervision considered that even small extensions, such as those under consideration, would have entailed a increase in volume not compatible with the constraints of the Territorial Landscape Planwhich rigorously protects the natural conformation of the Aeolian territory.
These legal reasons make it clear that the area of the Aeolian Islands is subject to particularly restrictive building regulations, and that any intervention that alters the state of the territory is strictly monitored by the competent authorities.
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The question of underground volumes and the impact on the landscape
A central aspect of the defence presented by the appellant was the question of underground volumes. In the request for amnesty, it was argued that the underground garage should not be subject to landscape constraints as, being completely below ground level, it would have no visible impact on the landscape. The appellant referred to the MIBAC circular no. 33 of 2009which establishes that underground volumes should not be considered relevant for the purposes of landscape assessment, as they are not visible from the outside.
However, both the Superintendency and the TAR Sicily rejected this argument. The authorities have in fact underlined that, according to consolidated case law (for example, Council of State, Section VI, judgment no. 8622 of 2023 and TAR Veneto, judgment no. 1481 of 2023), even underground volumes can significantly affect the landscape, especially in areas subject to strict protection constraints. The prevailing case law interpretation holds that, for the purposes of landscape protection, it is irrelevant whether the works are visible or not; what matters is their overall impact on the environmental context.
In particular, the TAR reiterated that building works which involve a increase in volumeeven if buried, should still be considered as new constructions. This vision is consistent with the interpretation of the Cultural Heritage and Landscape Code (Legislative Decree 42/2004), which prohibits any form of construction or expansion in areas subject to landscape constraints without the necessary authorizations.
Furthermore, the expansion of the terrace above it was deemed relevant for landscape purposes, as it constitutes a modification of the conformation of the land and could alter the visual relationship with the surrounding natural landscape. Although the terrace was not a large-scale work, it was nevertheless considered in conflict with the protection regime in force in the area.
