The specific case
The judges recalled that the construction contribution must necessarily be redetermined whenever the Administration realizes that the initial determination (possibly even equal to zero) was erroneous, as a consequence of an incorrect application of the relevant tables or even a simple one calculation error.
The municipal administration, in fact, is always the owner of the power-duty to request the (correct) construction contribution according to the parameters and within the limits established by the law and the related regulatory provisions, a request which is binding for the Administration itself. The aforementioned request does not require any specific motivationas it constitutes the mere exercise of a right connected to the credit claim recognized by law to the municipal administration for the issuing of the building permit and is subject, as such, only to ten-year statute of limitations.
So, if it is true that the construction contribution must be determined when issuing the building permit – as complained in the appeal – this does not preclude the possibility (indeed the duty) for the Administration to redefine the contribution itself, if its incorrect determination is noticed. Precisely the joint nature of the act determining the contribution allows the Administration to make changes, both in favor of the private individual and against it, as long as this occurs within the limits of the ten-year limitation period of the relevant credit right.
Therefore, although the technician had indicated the intervention as free, the municipal administration had the duty to proceed with the correct determination of the construction contribution due for the intervention in question. Obviously, the redetermination of the contribution, in the terms specified above, may concern or the case in which there has been a previous incorrect determination, or the case in which there was no determinationI wrongly believe the contribution is not due.
The general rules regarding construction contributions
As is known, the general regulatory principles regarding construction contributions have been developed by jurisprudence(1) and focused, in particular, by the Plenary Meeting of the Council of State no. 12/2018:
- the documents with which the municipal administration determines or re-determines the construction contribution referred to in the art. 16 of Presidential Decree 380 of 20001, their opinion must be reiterated private nature;
- the obligation to pay the contribution arises when the title is issued and it is at this moment that consideration must be given to determining the amount of the contribution;
- the act of imposition and payment of the contribution, as public law consideration required for sharing in the costs of urbanization works, does not have an authoritative nature nor does it constitute the explication of public authority, but is resolved in a mere recognition and accounting actin application of rigid and pre-established regulatory and tabular parameters;
- the determination of urbanization charges correlates to a precise regulatory frameworkwith the consequence that, for constant orientation, the implementing provisions of the same they do not require any specific justification when the choices made by the public administration comply with the same criteria set out in the parametric tables;
- the joint nature of the act of determination allows the public administration to make changes to itboth in favor of the private individual and in the opposite direction, as long as this occurs within the limits of the ten-year prescription of the related credit right, since it is, in fact, a determination that obeys requirements that can be deduced from tables, in order to which the municipal administration limits itself to applying parameters, having by the same binding nature, where any application discretion is excluded;
- the dispute regarding the entitlement and payment of the contribution for urbanization costs has as its object the verification of a credit relationship regardless of the existence of public administration documents and is not subject to the rules of actions challenging/annulling documents administrative and the respective deadlines;
- there non-authoritative nature of the related documents and theabsence of discretionwithin a equal relationship between the public administration and the private sectortherefore make the exercise of public self-defence conceptually inconfigurable, as a second degree power which affects, according to certain assumptions and limits, a primordial episode of exercise of authoritative power, which here does not exist ab origine;
- the construction contribution is a public law considerationprecisely because of the fundamental principle ofonerousness of the building permit introduced by the art. 1 of law no. 10/1977, and as such, although it is not bound by a rigid constraint of synallagmaticity with respect to the issuance of the building permit, it also falls, and coherently, within the category of financial benefits imposed pursuant to art. 23 Constitution;
- the payment of the construction contribution – public law consideration – can only be the subject of a ordinary mandatory relationshipgoverned by rules of private law;
- must, therefore, be excluded from such relationships of a purely obligatory nature and from documents jure gestionisof an accounting nature and with liquidation purposes, adopted by the Municipality, the self-protection regulations referred to in the art. 21 nonies of law no. 241 of 1990 or, more generally, the regulations dictated by the same law no. 241/1990 for provisional acts expressing public authority;
- the equal nature of the relationship does not exclude the duty of redetermination how many times does the public administration realize that the initial determination of urbanization costs depended on an incorrect application of the tables or even on a simple calculation error;
- the Municipality is still, in fact, the owner of the power-duty to request the construction contribution according to the parameters and within the limits established by law and by the supplementary regulatory provisions established by the Regions, making their application bound to the predetermination of coefficients, which the private sector must know and can easily verify.
- It follows from the above that the acts with which the PA determines and pays the construction contribution, provided for by the art. 16 of Presidential Decree 380 of 2001, do not have an authoritative nature, not being an expression of public authority, but constitute the exercise of a faculty connected to the credit claim recognized by law to the Municipality for the issuing of the building permit, given its onerousness, in the context of a mandatory relationship of an equal nature and subject, as such, to the ten-year limitation period;
- the non-authoritative nature of the acts with which the contribution is determined, acts not attributable to the expression of public authority, means that in the ordinary ten-year limitation period, starting from the issuance of the building permit, it is always possible, and indeed necessary , by the Administration, in the exercise of the faculties connected to its credit position, the redetermination of the contribution, how many times it realizes that the original liquidation of this depended on the inaccurate or inconsistent application of parameters and determining coefficients, in force at the time the title was issued, or by a simple calculation error, with the obvious exclusion of the possibility of retroactively applying coefficients subsequently introducednot in force at the time the title was issued;
- the complexity of the calculation operations or the possible uncertainty in the application of some tables or determining coefficients, due to technical reasons, are not events foreign or unknown to the debtor’s sphere, which instead with ordinary diligence, required by the articles . 1175 cc and 1375 cc, can and must check its accuracy from the first act of their determination;
- the municipal administration, in requesting the said amounts with acts not having an authoritative nature, therefore acts according to the rules of private law, but the applicability of the art. must be excluded. 1431 cc to this case, since the error in the payment of the contribution, made by the public administration, does not concern elements extraneous or unknown to the sphere of the debtor and is therefore in principle recognizable for him, as it concerns the application of the tables parametric, which are or must be well known to the private individual, or is determined by a mere calculation error, clearly perceptible by the private individual, an error which gives rise to the simple rectification;
- there protection of trust and the principle of good faithwhich in general must also be observed by the public administration for the implementation of the mandatory relationship, can find application in a case such as the one in question in which, ordinarily, the predetermination and objectivity of the parameters to be applied to the construction contribution make it binding the counting by the public administration, allowing a priori its knowability and the verifiability by the interested party with ordinary diligence, only in the exceptional case in which such knowledge and verifiability are not possible with the ordinary diligence required of the debtor, in good faith, with a view to loyal collaboration aimed at implementing the relationship mandatory and to satisfy the credit interest claimed by the Municipality.
Notes
(1) Former multis: Council of State, Plenary Meeting, sentence. n. 12/2018; section IV, sentence. 15 January 2024, n. 473.
