The demolition order for an illegal building is a very relevant issue in the context of construction and urban planning regulations. A recent case has raised crucial questions regarding the legitimacy of such orders when a request for building amnesty.
But what happens if the city issues a demolition order while a request for amnesty is pending? Can demolition proceed immediately, or are there any legal protections for the owners?
This article explores a ruling by the TAR Catania that sheds light on these questions, offering an in-depth analysis of the rights and procedures involved.
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The Catania TAR ruling
The ruling n. 2350/2024 of the Catania TAR represents an important position taken on the matter of illegal demolitions during the pendency of a building amnesty request.
In the case in question, the owners of an illegal house, subsequently sold, had filed an application for regularization under the 1994 amnesty. However, the municipality had issued a demolition order without communicating the start of the related administrative procedure, violating the participatory guarantees of the appellants.
According to the appellants, the demolition order referred to a “Proposal for the issuance of the Demolition and Restoration of the State of the Places Order” of the Municipality’s Repression and Illegal Building Unit, which had never been notified to them.
The appellants argued that, if they had been informed of the initiation of the proceedings, they could have submitted a copy of the amnesty application, influencing the content of the final decision.
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The illegality of the demolition order
A central point of the ruling concerns the illegitimacy of the demolition order since the request for amnesty relating to the property in question had not yet been issued by the Municipality. According to case law, a demolition order cannot be issued while a regularization request is in progress.
The relevant legislation, art. 38 of Law 47/1985, provides that the submission of the application for amnesty, accompanied by the certification of payment of the amount due, suspends the criminal proceedings and those for administrative sanctions.
Article 38
Effects of the oblation and the concession of regularizationThe submission within the peremptory deadline of the application referred to in Article 31, accompanied by the certification of the payment of the sum referred to in the first paragraph of Article 35, suspends the criminal proceedings and those for administrative sanctions.
The fully paid oblation extinguishes the crimes of (…)
Consequently, pending the definition of such applications, no demolition measure can be adopted.
The TAR therefore established that the Municipality should have waited for the outcome of the procedure to verify the possibility of regularization before issuing the demolition order. The ruling underlines that this principle is fundamental to guarantee respect for participatory guarantees and citizens’ rights.
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Conclusions
The ruling of the Catania Regional Administrative Court n. 2350 of 2024 reaffirms a fundamental principle in building matters: the demolition order cannot be issued pending a request for building amnesty. This principle protects the rights of owners, guaranteeing them the possibility of completing the regularization procedure before being subjected to sanctions.
The case examined highlights the importance of complying with current regulations and citizen participation guarantees. Municipalities must proceed with caution and ensure that they have assessed all requests for amnesty before adopting drastic measures such as demolition.
For owners, this ruling represents legal protection against premature and incorrectly notified measures.
