Building amnesty rejected: the legal limits for projects in restricted areas


Emma Potter

Construction, a constantly evolving sector, is often the subject of complex regulations that regulate every aspect of construction, from internal modifications to the construction of new structures. The fine line between the legal and the illegal can easily be missed, especially when it comes to external modifications such as the addition of verandas or other similar structures.

Lack of knowledge of local regulations and the incorrect choice of building permit can have serious consequences, leading to the qualification of the work as illegal and the denial of any amnesties, especially in areas subject to specific constraints. An emblematic case is that of one veranda built in the restricted area of ​​Livigno, which raised significant legal issues and led to a significant decision by the Council of State.

This article explores the dynamics of this case, highlighting the importance of carefully navigating the rules of construction law.

Amnesty of the veranda in a restricted area: the case of Livigno

In the context of building regulations, a recent case has attracted attention for its legal and administrative implications. A concrete example occurred in the city of Livigno, where the owner of a commercial premises faced the strict interpretation of the laws regarding building amnesty.

In an attempt to enhance his commercial space, the owner had created an external addition on the ground floor in the form of covered veranda, intended to welcome customers. This structure, however, was later interpreted not as a simple appurtenance, but as a new construction. The peculiarity of this case lies in the fact that the veranda was erected in aarea subject to landscape restrictions, a condition that made it impossible to obtain the amnesty provided for by Law no. 326/2003.

The owner had submitted a request for amnesty pursuant to art. 32 of Legislative Decree n. 269/2003, trusting in the possibility of regularizing the building intervention. However, the response from the Municipality of Livigno, which arrived with a notable delay of four years, was unequivocal: pardon could not be granted.

Following this negative response, the owner decided not to give up, challenging the administrative measure and taking the case to the Council of State, in the hope of finding a favorable solution.

The veranda as an autonomous structure: the ruling of the Council of State

The legal debate raised by the Livigno case has led to an important sentence of the Council of State, n. 785 of 25 January 2024which established a significant principle of law regarding verandas and similar structures in restricted areas.

The defense presented by the owner of the commercial premises was based on the assumption that the added structure was a mere extension of the existing building, having an accessory function and therefore classifiable as belonging to the main building.

However, the judges of Palazzo Spada, confirming the assessments of previous levels of judgment, outlined a different picture.

The photographic documentation and the characteristics of the structure – an autonomous construction, closed on all four sides and equipped with heating – led to the conclusion that it was not a simple extension, but a a new work. This distinction is crucial since, according to established jurisprudence, a work can be considered relevant only if of modest entity and functionally linked to the main building. In the case of Livigno, however, the size and independent functionality of the veranda excluded it from this category, making it ineligible for the building amnesty under current legislation.

This principle underlines the importance of an accurate evaluation of the regulatory context and the specific characteristics of each building intervention, especially when operating in delicate contexts such as areas subject to landscape or historical-artistic constraints.

Failure to apply the amnesty for verandas in restricted areas

The case of the commercial premises in Livigno highlighted how the hopes of I forgive for structures built in areas subject to landscape constraints may break down in the face of the severity of the regulations. Despite the owner's arguments, focused on the possible relevance and ancillary functionality of the structure, the ruling of the Council of State clarified that works of this size and autonomy do not fall within the forgivable cases provided for by the law.

The law, in fact, explicitly excludes the possibility of amnesty for illegal works carried out in areas protected by landscape, hydrogeological constraints, or which affect assets of environmental and historical-artistic value, without the necessary building permit and in breach of current urban planning regulations.

This principle reiterates the importance of careful planning and preliminary verification for any building intervention, underlining the responsibilities of owners and professionals in the sector in compliance with regulations and protection of the territory.

The ruling underlines an important precept: construction in restricted areas requires not only compliance with urban planning regulations but also sensitivity towards landscape and environmental values, fundamental elements in the protection of our cultural and natural heritage.