The Council of State with sentence no. 7370 of 3 September 2024, recently pronounced a sentence that clarifies the limits of the power of automatic cancellation by Municipalities in construction matters. The affair involved the Municipality of Canosa di Puglia and a private citizen, who, after having obtained a building permit due to silent consent, he had his building authorization revoked following a self-protection measure.
The case has raised many questions: to what extent can the municipal administration intervene on already consolidated documents? And what are the requirements that justify an automatic cancellation?
Let’s analyze this important ruling together.
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The case: the request for a Building Permit
The case in question originates in 2017, when a citizen of Canosa di Puglia presented the Municipality with a request for a building permit for the demolition and reconstruction of a building.
Due to the administration’s failure to respond within the deadlines set by the legislation (art. 20 of Presidential Decree 380/2001), the so-called silent assentwhich effectively authorized the requested works. The citizen therefore proceeded with the project, trusting in the validity of the building permit.
However, subsequently, the Municipality issued an official cancellation order, deeming the building permit tainted by irregularities and requesting the suspension of the works. This led the citizen to appeal to the TAR Puglia, which accepted the appeal, canceling the municipal decision.
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The appeal of the municipality of Canosa di Puglia
After the favorable decision of the Puglia Regional Administrative Court for the private individual, the Municipality of Canosa di Puglia decided to appeal the sentence, bringing the matter to the Council of State. In the appeal, the administration raised three grounds of dispute.
First of all, the Municipality argued that the building permit was void because the initial request had been made by a person without the right to proceed, as he did not own the property concerned. Subsequently, the Municipality questioned the validity of the project, as part of the documentation had been signed by a surveyor, who was not authorized to work on buildings involving the use of reinforced concrete, therefore raising a potential structural safety issue.
Finally, the local authority considered it had the right to automatically cancel the building permit, based on the public interest in restoring urban planning legality. The Municipality, in fact, argued that the granting of silent consent, considered illegitimate, could not prevail over the obligations to protect the territory and the need to comply with building regulations.
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The decision of the Council of State
The Council of State analyzed the three grounds of appeal presented by the Municipality of Canosa di Puglia and rejected each of the objections. First, it confirmed the regularity of the power of attorney presented by the applicant, believing that the TAR had correctly applied the procedural regulations, allowing the rectification of the formal defect relating to the ownership of the request.
This means that, although there was an initial deficiency, the subsequent regularization retroactively validated the entire procedure.
As for the competence of the surveyorthe Council highlighted that the project had not been carried out exclusively by the latter, but that the structural part had been followed and validated by a qualified engineer. Consequently, there was no substantial defect that could compromise the validity of the building permit. This decision was also made considering the relatively modest size of the property, which did not require particular design complexities.
Finally, regarding the official cancellation, the Council of State established that the Municipality had not adequately justified the decision, limiting itself to generically calling for the restoration of urban planning legality. In fact, according to law 241/1990, a self-protection measure must always be accompanied by a concrete evaluation of the public interest and a comparison between the rights of the private individual and the needs of the community.
In the absence of a specific and detailed reason, the cancellation was deemed illegitimate.
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The role of silent consent
One of the key aspects on which the Council of State focused concerns the formation of silent consent and its legal value. Silent consent, provided for by art. 20 of Presidential Decree 380/2001, occurs when the Public Administration does not make a decision within the established deadline on a request for a building permit, resulting in the tacit acceptance of the request.
This tool was introduced to prevent bureaucratic delays from compromising the activity of the private individual, allowing one to proceed in the absence of an express refusal.
In the specific case, the Council of State underlined that the silent consent formed in favor of the applicant represented in all respects a legitimate qualification, already confirmed by the sentence of the Puglia TAR. However, the local authority attempted to annul this title by claiming that the concession was the result of an original irregularity and that the Municipality was required to restore urban planning legality.
The issue, therefore, did not only concern the interpretation of the rules on silent consent, but also the legal validity of the provision formed and the limits within which a Municipality can intervene to annul it. According to the Council of State, once the legitimacy of silent consent has been ascertained, the public interest must be motivated with concrete and current elements, as it cannot be referred to in a generic and abstract way.
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