Autonomy between landscape authorization and building permit
From this principle it follows that:
- The the reference parameter for the evaluation of the landscape aspect does not coincide with the urban planning and building regulationsbut in the specific discipline dictated for the specific constraint (4);
- the fact that building permits have been issued, even in the absence of landscape authorization, cannot in any way legitimise the building from a landscape perspective; such an outcome would be in contrast with the principle expressed by the Constitutional Court (5), according to which landscape interest must always be expressly assessed also within the context of balancing with other public interestsas well as with the jurisprudence which, in matters involving sensitive interests, such as the landscape one, limits the institution of tacit consent only to the use of specific regulatory provisions and in compliance with all regulatory constraints (6).
The data according to which there is a principle of autonomy also between urban planning and building offences and landscape offencesas well as an autonomy between the related procedures and sanctioning regimes (7).
Lack of landscape authorization: consequences on the works
The jurisprudence (8) has also established that:
- the lack of a landscape permit makes the works unworkable in question and well justifies, in the event of their implementation, inhibitory and sanctioning-restorative measures, such as an order of restoration to pristine;
- the building permit can be issued even in the absence of landscape authorization, provided that it is ineffective and the works cannot be started until the landscape clearance is receivedthe start of the works being subject to the adoption of both provisions.
The guarantee, therefore, that the territory is not compromised by interventions approved with a building permit but without landscape clearance, is given by thelegal impossibility of starting the works before the acquisition of the necessary landscape permit. This orientation is based on the belief that the structural autonomy of the two procedures does not allow the procedure for the release of the clearance to be considered as a “necessary prerequisite” for the procedure for the release of the building permit, not even in the case of works to be carried out on areas protected as overall beauties (9).
The position of criminal jurisprudence
Criminal jurisprudence has long been firmly oriented towards believing that in order to build in a restricted area Landscape authorization is not enough, but a building permit is also required and that, where the authorization is missing, the building permit is completely ineffective (10).
Notes
(1) Council of State, section IV, judgment of 14 December 2015, no. 5663: “it is an established principle that where one wishes to build in a restricted area, two enabling titles must be obtained: the concessionary one and the landscape authorization. And for the principle to be respected, it is necessary that both are formed on the same project document, otherwise of such a “double” authorization only the form would remain, because in substance one would be faced with two distinct expansion acts, formed on requests not having similar content and tenor. And this regardless of the extent of the modifications and differences between them: the project on which the Municipality and the Superintendency decide must necessarily be the same, since the respective consent acts are aimed at protecting different interests (landscape, the second, building and urban planning, the first)”; TAR Campania, Naples, section VIII, sentence 10 October 2016, n. 4649.
We recall that some sentences consider invalid, as well as ineffective, the permit without landscape authorization: for example, the TAR Sardinia, section I, in the sentence of 26 September 2023, n. 680, recalling the sentence of 14 June 2022, n 4000, of the TAR Campania, Naples, section III, stated the following: “According to consolidated jurisprudence, urban planning and landscape regulations complement each other in order to guarantee integrated protection of the territory, and the landscape title is a prerequisite and necessary act for the valid and effective issuing of the building title: “pursuant to art. 146 co. 4, Legislative Decree no. 42/2004, the landscape authorization, even in regularization (so-called assessment of landscape compatibility), constitutes an autonomous and presupposed act with respect to the building permit or other titles legitimizing the urban-building intervention: it gives rise to a necessary and instrumental presuppositional relationship between landscape assessments and urban planning assessments, in such a way that these two assessments are destined to be expressed on the same object in strict succession of provisions, with the consequence that the landscape authorization must be acquired before starting the building procedure, which cannot be defined positively for the interested party in the absence of the prior achievement of the landscape compatibility title (see Council of State, Section IV, 9 February 2016 no. 521 and 27 November 2010 no. 8260; TAR Umbria, Section I, 4 August 2011 no. 261)”.
(2) TAR Campania, Salerno, section II, sentence of 8 November 2023, n. 2490: “In principle, the landscape authorization is an autonomous act with respect to the building permit or other titles legitimizing the urban-building intervention; the two acts of consent, the landscape one and the building one, operate on different levels, being placed to protect different public interests, even if partially coinciding. The landscape authorization and the building title respond to distinct and typified public interests: one evaluates, by virtue of discretionary technical assessment, the landscape compatibility of the proposed building intervention, while the other, with an autonomous and specific investigation, ascertains the urban-building conformity of the artifact (Council of State section VI, 20/01/2023, no. 682)”.
(3) Although, on some occasions, this separation seems to have been attenuated: the TAR Lazio, Rome, section II, in the sentence of 2 December 2014, n. 12140, stated that “the provision of self-protection cancellation of the title to build a service premises obtained on the basis of a notification of commencement of building activity is legitimate, due to the lack of prior intervention of the landscape authorization necessary for constructions in areas subject to environmental constraints”, thus configuring a defect of invalidity of the concession title.
(4) Council of State, section VI, judgment of 24 November 2015, no. 5327, according to which “The landscape authorization in fact constitutes an “autonomous act and prerequisite with respect to the building permit or other titles legitimizing the urban-building intervention” (art. 146, paragraph 4, of the Code for cultural and landscape heritage): the normative parameter of reference for the evaluation of the Superintendency must therefore not be identified in the urban-building regulation, but in the specific regulation of the landscape constraint, contained in the tax provision or, as in this case, in the regulation dictated with the landscape plan.”; judgment of 31 October 2013, no. 5273: “landscape assessments are independent, and in any case prevalent, compared to urban planning assessments”.
(5) Constitutional Court, sentence. n. 196/2004.
(6) Council of State, section VI, ruling no. 6591/2008.
(7) TAR Campania, Naples, section VIII, judgment of 5 June 2023, no. 3458; Council of State, section VI, judgment of 3 May 2022, no. 3446.
(8) Council of State, section IV, judgment of 14 December 2015, no. 5663.
(9) Council of State, section V, judgment of 11 March 1995, no. 376; section VI, judgment of 19 June 2001, no. 3242.
(10) Criminal Court of Cassation, no. 10502/1999, no. 1093/1998, 6681/1998; recently, Criminal Court of Cassation, III section, judgment of 7 October 2014, no. 952: “air conditioners/conditioners are technological systems and, therefore, if placed outside the buildings, they fall within the category of building works defined by art. 3 of Presidential Decree 380 of 2001, so that their construction or installation, although not requiring a building permit, is nevertheless subject to a certified notification of commencement of activity (SCIA) pursuant to art. 22 of the aforementioned Presidential Decree, not falling within the category of works that can be carried out without any enabling title. In any case, since even the so-called free building activity must be carried out in compliance with other sector regulations having an impact on the regulation of building activity and, in particular, with anti-seismic, safety, fire prevention, health and hygiene regulations, those relating to energy efficiency as well as the provisions contained in the cultural heritage and landscape code, pursuant to Legislative Decree no. 42 of 2004, it follows that where the installation of air conditioning (already subject to SCIA) takes place in an area subject to landscape restrictions, it is to be considered also conditioned by the authorization of the authority responsible for the protection of the restriction, deriving from the failure to issue the landscape authorization the integration of the criminal offence provided for by art. 181 of Legislative Decree no. 42 of 2004)”.
