Building amnesty: when it is not possible to remedy an abuse in a restricted area

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Emma Potter

Illegal building is a problem that affects many areas of Italy, in particular those subject to landscape, seismic and hydrogeological constraints.

A recent significant example is the ruling of the Court of Cassation, which concerns a property built illegally in an area subject to landscape and hydrogeological constraints in Ischia. This case highlights not only the importance of complying with regulations, but also the legal and practical consequences for who decides to bypass them.

What were the Court’s decisions and what are the consequences for those who violate urban planning regulations? Let’s see it in detail.

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The facts underlying the appeal

The case of illegal construction that led to sentence no. 35006/2024 of the Court of Cassation dates back to the early 1990s, in a context involving a particularly delicate area of ​​the island of Ischia, subjected to landscape and hydrogeological constraints.

In March 1992, the local authorities had ascertained the illegal construction of a building of approximately 63 square meters per floor, on two levels. The ground floor was almost completely underground and built with tufaceous stone walls and a reinforced concrete floor, while the first floor, although still incomplete, was built with two parallel concrete walls, also with a reinforced concrete floor.

Following this discovery, the property was placed under seizure, officially preventing the continuation of the works.

Despite this, in 1994, after the removal of the seizure, the authorities found that the works had resumed in an abusive manner and completed without any authorization. The infill works on the first floor had been completed and the building had been made habitable, despite the restriction imposed.

Faced with this situation, the owner of the property attempted to obtain a building amnesty on two different occasions: the first in 1994, by virtue of law no. 724 of 1994, and the second in 2003, following law no. 326 of 2003. In both requests, however, the authorities have denied amnestysince the works had not been completed by the deadline of 31 December 1993 required by law to obtain the extraordinary amnesty.

Not only that, but the works carried out after the seizure did not appear to be simple maintenance or renovation, but rather significant interventions that had increased the overall volume of the property.

The owner’s appeal to the Court of Cassation, therefore, was based on the attempt to assert the theory that the works had been blocked by the seizure order and that the main work had already been substantially completed before that date. However, the authorities had contested this version, demonstrating that the building had not been completed in time and that the structural changes subsequently made represented a substantial expansion of the building abuse, in violation of landscape and urban planning regulations.

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The reasons of the Court of Cassation

The Court of Cassation rejected the property owner’s appeal, confirming what had already been established by the previous judicial authorities. The reasons for the rejection are based on a clear application of the regulations in force regarding building amnesty.

According to the Court, in order to benefit from the extraordinary amnesty provided for by law no. 724 of 1994, the building work had to be completed by 31 December 1993. In this case, however, the building could not be considered completed by that date, as essential elements for the completion of the structure were missing, such as the infill of the perimeter walls.

Only after the release of the property, which occurred in 1994, were the works completed that made the property habitable.

The Court also clarified that the concept of “completion of the rustic“, which is a fundamental requirement to obtain the amnesty, includes not only the construction of the load-bearing structures and the roof, but also the external infill, essential to make the volume of the building clearly identifiable.

In the absence of these characteristics, the property cannot be considered completed. This principle has been reiterated in several previous sentences and confirmed again by the Court of Cassation in this decision.

The ruling also underlined that the seizure measures, while temporarily preventing the continuation of the works, cannot be considered as a justification for completing works that did not exist at the date of the seizure. In fact, the amnesty can only be granted for structures already built and not for those that were built subsequently.

In this case, the works carried out after the release from seizure represented an illegal expansion that went beyond what had already been built, compromising the possibility of an amnesty.

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Hydrogeological constraints and building amnesty

A crucial aspect of the case concerns i hydrogeological and landscape constraints present in the area where the building was built. The area in question, in fact, falls into a high risk category (R3) according to the Extract Plan for Hydrogeological Management (PSAI) approved in 2015.

The presence of these constraints has made the conditions for obtaining the building amnesty even more stringent, especially in areas characterized by high environmental vulnerability. The defense argued that the property fell in an area outside the perimeter of the area subject to the most restrictive restrictions (R4, very high risk), and that therefore authorization from the competent authorities was not necessary to proceed with the works.

The Court, however, rejected this argument, clarifying that the hydrogeological constraints must also be taken into consideration in high risk areas (R3) and that, in any case, the constraints preventing the amnesty of illegally carried out works must pre-exist the construction .

Furthermore, the Court reiterated that the competent authority for the protection of the hydrogeological constraint is the same one that issues the building permits, and in the specific case, the intervention was in no way compatible with the environmental and landscape regulations in force.