Building amnesty: when the cancellation is illegitimate without adequate justification


Emma Potter

What happens when an administrative act, such as the permission to build in amnesty, is canceled without adequate reason? Is it legitimate to cancel a building amnesty without clearly explaining the reasons for this decision?

These questions are answered in a recent ruling (n° 1976/2022) of the Council of State, which highlighted the crucial importance of correct motivation in administrative measures.

Building amnesties, permits that legalize pre-existing works carried out in violation of urban planning regulations, require particular attention to the justification of cancellation, especially in a country with a high legislative density like Italy.

This ruling marks a fundamental point of reference for administrative jurisprudence, clearly outlining the contours of the obligation to state reasons. Let's explore the details and implications of this crucial decision.

The specific case of the sentence

The heart of the dispute focuses on the annulment of a building permit in amnesty granted in the framework of the third building amnesty, established by Law no. 269 ​​of 2003.

The Municipality had decided to revoke the permit in self-defense, stating that the buildings did not comply with the regulations in force at the time of their construction.

However, the Regional Administrative Court, consulted by the owners, deemed the cancellation illegitimate, underlining the lack of adequate motivation as required by article 21 nonies of the Law on Administrative Procedure (Law no. 241/90).

This decision was subsequently appealed by the Municipality, which questioned the term “reasonable” of three years for cancellation, maintaining its compliance despite the recent regulatory change which provided for a deadline of eighteen months.

Jurisprudence requires that any self-defence annulment of an administrative act, especially if issued before the entry into force of recent regulatory changes, is supported by a detailed justification. This must reflect the existence of a concrete and current public interest that justifies the annulment, balancing this interest with that of the private recipients of the act.

The ruling in question highlighted how it is not sufficient to invoke a general public interest to withdraw a building permit; it is necessary to specifically indicate the reasons of public utility or any falsehoods in the documents presented which undermine the legitimate trust of the private individual.

Implications of the sentence and burden of reasoning

The importance of a comprehensive and detailed justification is further emphasized by the ruling when it considers the time elapsed between the issuing of the permit and the cancellation.

According to the Court, the short time interval does not exempt the Administration from the obligation to adequately justify its provision. Indeed, a reduced period of time should facilitate the analysis of opposing interests and lighten the burden of motivation, but not eliminate it.

The decision underlines that even in cases where the title was obtained through misrepresentation of facts, the motivation must explicitly illustrate these circumstances, thus strengthening the legitimacy and transparency of the administrative action.