In an increasingly regulated construction context, the issue of the annulment of building permits years after its issuance has raised quite a few controversies.
Recently, the case of an annulment occurred after more than two decades raised crucial questions about the balance between restoring legality and respecting legal deadlines. Ruling 378/2024 of the Lazio Regional Administrative Court sheds light on these aspects, outlining the boundaries within which administrative self-protection can be exercised.
We then explore the implications of this ruling, analyzing the motivations behind the decisions and their consequences on the construction sector.
The regulatory context and the problem of annulment
The administrative practice of self-defending qualification qualifications, such as building permits, represents one of the most delicate issues in the construction sector.
This possibility, although foreseen to guarantee compliance with legality and public interest, raises doubts and perplexities when it is exercised a long time after the issue of the securities themselves.
Current legislation, in particular article 21 novies of law 241/1990, establishes that the automatic annulment of an illegitimate administrative measure can take place within a reasonable period, in any case not exceeding twelve months from the adoption of the measure itself, excluding cases of attribution of economic advantages.
Art. 21-novies
Official cancellation“Administrative measures obtained on the basis of false representations of facts or false or mendacious declarations in lieu of certification and affidavit as a result of conduct constituting a crime, ascertained by a final judgment, may be annulled by the administration even after the expiry of the term of ((twelve)) months referred to in paragraph 1, without prejudice to the application of criminal sanctions as well as the sanctions provided for in chapter VI of the consolidated act referred to in the decree of the President of the Republic of 28 December 2000, n. 445.”
Despite this, there have been cases, as highlighted by the Lazio Regional Administrative Court ruling, in which the intervention of the public administration took place well beyond this period of time, raising questions about the applicability and interpretation of these rules.
The specific case and the intervention of the TAR
The issue that came to the attention of the TAR of Lazio concerned the cancellation, by a municipality, of building permits dating back to the 1990s and early 2000s, in the absence of landscape authorisation, an essential requirement imposed by the art. 146 of Legislative Decree no. 42/2004.
The municipal decision, taken more than twenty years after the issuing of the permits and also motivated by the presence of discrepancies compared to the last building permit, raised questions about the legitimacy of this intervention after such a significant period of time.
The private individual, annoyed by the order, brought the matter before the TAR, raising doubts not only on the lack of landscape authorization but also on the excessive delay with which the automatic cancellation was exercised, in apparent violation of the terms established by law 241/1990.
The private individual's arguments and the TAR's response
The appellant challenged the municipal ordinance on various fronts, arguing that the absence of the landscape authorization should have at most affected the effectiveness of the building permit, not its validity.
Furthermore, he highlighted that the cancellation of the building permit had occurred beyond the twelve month deadline set by the law, without the administration having provided explanations on the reasons for this delay.
The private individual also criticized the absence of a comparative assessment between the public interest in restoring legality and the interests of the private individuals involved, arguing that, if the objective had truly been the restoration of legality, the Municipality should have considered alternatives to cancellation, such as the retroactive landscape assessment of building permits.
The TAR of Lazio, in its intervention, accepted the appellant's arguments, based on the legislation and jurisprudence relating to the deadlines for the automatic cancellation of administrative measures. He highlighted that the cancellation of building permits occurred well beyond the twelve month limit and without adequate justification on the reasons for the delay, did not comply with the legal requirements.
Furthermore, the TAR underlined the importance of evaluating the public interest in light of the interests of the private individuals involved, indicating that the Municipality's decision to cancel the titles without exploring other avenues of action was illegitimate.
Conclusions and reflections on the future of construction
The ruling of the TAR of Lazio represents an important precedent in the delicate balance between the self-protection power of the public administration and the right to legal certainty of private citizens. This case highlights the need for a thoughtful exercise of self-defense, respectful of the terms of the law and attentive to the evaluation of the interests involved.
The principle according to which the automatic annulment must take place within a reasonable time, so as not to unfairly prejudice the rights of citizens, acquires significant confirmation here. In the future, this ruling could influence the way in which local administrations manage similar situations, pushing them towards a more precautionary and less invasive approach, in line with the principles of good administration and respect for individual rights.
