The building amnesty is a tool that allows for the regularization of works carried out without a permit, but it is not always applicable, especially in areas subject to landscape and environmental constraints.
The ruling of the TAR Lazio n. 15138/2024 has recently clarified the limits of this instrument in protected areas, highlighting how the constraints imposed at a national level prevail over any more permissive regional legislation.
But what are the works that cannot be regularized? And how do landscape constraints apply to amnesty requests?
Let’s discover together the details of the ruling and the implications for those who intend to regularize building abuses in protected areas.
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The ruling of the TAR Lazio: a clarification on the limits of the Third Building Amnesty
The TAR Lazio, with ruling no. 15138/2024 of July 24, provided an important clarification on the subject of the Third Building Amnesty, in particular with regard to interventions in areas subject to landscape and environmental constraints.
In the case examined, the issue concerned a request for amnesty for an intervention to change the intended use of a property. Specifically, the intervention consisted of the transformation of rooms originally used as stables into six residential units, located in an area subject to landscape and environmental constraints. The area, in fact, was protected pursuant to art. 134, paragraph 1, letter b) of the Cultural Heritage and Landscape Code, and classified as an area of naturalistic, geomorphological and vegetational interest.
The renovation involved a significant expansion of living space and a consequent increase in the urban planning burden of the area. According to current legislation, this type of intervention is classified as a building renovation with significant impact, and for this reason it cannot be pardoned in restricted areas. Although the intervention complied with local planning regulations and tools, the landscape restrictions imposed at the state level prevented its regularization.
The TAR therefore confirmed that the municipal administration acted correctly in denying the amnesty, since the change of intended use with an increase in volume is one of the abuses excluded from the Third building amnesty, especially in areas where the protection of the landscape and the environment is considered a priority over the possibility of regularizing illegal works.
The ruling established that, in such contexts, national legislation prevails over regional legislation, restricting the scope of application of the amnesty and preventing amnesty for interventions that do not respect the constraints imposed to protect the environment and the landscape.
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The prevalence of state legislation over regional legislation
One of the central points of the ruling is the confirmation that, in the matter of building amnesty, State legislation prevails over regional legislation when it comes to landscape and environmental protection constraints. In its argument, the TAR rejected the idea that a work can be pardoned simply because it is not subject to the constraints indicated by the regional law.
State law, in fact, clearly establishes that areas subject to hydrogeological, landscape and environmental protection constraints cannot benefit from amnesties, regardless of the less restrictive provisions of local laws.
The ruling also refers to the Constitutional Court, which in ruling no. 71/2005 had recognized the Regions’ power to modulate the scope of the building amnesty, but always in compliance with the limits established by state law. This means that the Regions can regulate the amnesty for minor abuses, but cannot expand its scope with respect to what is provided for by national legislation.
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The types of interventions excluded from the amnesty
The ruling of the TAR Lazio also clarifies that not all building interventions are susceptible to amnesty, especially those carried out in restricted areas. The Third Building Amnesty, regulated by art. 32 of Legislative Decree no. 269 of 2003, allows amnesty only for minor interventions, such as restoration, conservative redevelopment and extraordinary maintenance.
However, more invasive works, such as expansions of volumes or changes of intended use, cannot be pardoned if carried out in restricted areas, as specified in Annex 1 of the same decree.
In the case examined, the TAR emphasized that the change of use from stables to residential units falls into the category of building renovation interventions, classified among those not condonable according to the current legislation. This type of intervention, in fact, involves an increase in the urban planning burden and a significant impact on the territory, factors that exclude it from the possibility of amnesty.
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The importance of landscape and environmental constraints
Another fundamental aspect of the ruling concerns the application of the landscape and environmental constraintswhich play a crucial role in determining the eligibility of a pardon.
In the case in question, the area where the building work was carried out was subject to various constraints, including those set forth in art. 134, paragraph 1, letter b) of the Cultural Heritage and Landscape Code, which protect areas of landscape, naturalistic and geomorphological importance.
The TAR Lazio reiterated that, in the presence of such constraints, it is not possible to grant an amnesty for interventions that significantly modify the intended use or appearance of the buildings. This was the main reason why the request for amnesty was rejected: the intervention carried out was not only prohibited by local constraints, but also fell within the types of building abuse that cannot be pardoned under the legislative decree.
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The role of the Constitutional Court and the confirmation of the TAR
In support of its decision, the TAR Lazio recalled the ruling no. 71/2005 of the Constitutional Court, which established a key principle: the regional legislator can intervene to regulate the modalities of the building amnesty, but can never exceed the limits imposed by state legislation.
This means that the Regions can regulate which types of building violations can be regularized, but without ever extending the possibility of regularization beyond what is foreseen at the national level.
In particular, the Court reiterated that it is the State’s responsibility to identify the abusive works that are not eligible for amnesty, to establish the time limits for the implementation of the interventions and to define the maximum volumes admissible for the amnesty. Therefore, any regional provision that would allow an amnesty on works that violate landscape constraints would be constitutionally illegitimate.
