Building tolerances: no abuse and no taxation

Differences with the building permit

The affair which sees the Municipality also condemned to pay the costs of the litigation is rather recent. In fact, it all began with determination no. 42 of 29 September 2021 with which the local authority had imposed a fine of 5,250 euros pursuant to art. 34, paragraph 2, of Presidential Decree no. 380/2001 (taxation), against a private owner of a property built with a license dated 9 December 1965.

During the inspection, the Municipality had detected some discrepancies compared to the original license: changes in perspective, reinforced concrete works in the stairwell area, plus an expansion of the street front for a total surface area of ​​approximately 5.46 m2 and a volume of approximately 16.40 m3. The discrepancies found had been structurally carried out at the same time as the entire construction work was carried out, thus making it impossible to demolish them without causing damage to the building. Hence the application of the sanction.

However, the owner appealed to the TAR and obtained the annulment of the municipal provision, a sentence against which the Municipality appealed. The Council of State rejected the Municipality’s request, with a ruling in which it specified in which situations and why taxation is not permitted.

Taxation only if there is abuse

The taxation of building abuse is an alternative sanction to demolition, applicable when the removal of the non-conforming part cannot occur without compromising the stability of the building as a whole.

One of the prerequisites for its application, pursuant to art. 34 of the TEU, is that both the margins of constructive tolerance pursuant to art. 34-bis, and the limits of the essential variations pursuant to art. 32.

In the case of non-essential variations, in fact, urban planning compliance is normally implicit and regularization pursuant to art. is therefore applicable. 36, paragraph 2, for new buildings or heavy renovations, or regularization pursuant to art. 37, paragraph 4, for building interventions authorized through SCIA.

Being an alternative sanction to demolition, its application essentially presupposes that an abuse has been committed.

The checks on the merits

In the case examined, the Council of State identifies three competing reasons why the contested works could not instead be classified as abusive:

1. The temporal and geographical location of the property: the works were carried out before 1 September 1967 in an area outside the town centre. Before that date and outside the inhabited center no qualification was required, with the consequence that no discrepancy from an unnecessary qualification can arise.
2. The change in perspective contested by the Municipality: the inspector appointed in the first instance had ascertained that it is an urbanistically irrelevant discrepancy and in any case not current, since the external arrangement envisaged by the license – a private garden around the building – had already been replaced by public roads.
3. The measurement of manufacturing tolerances: the measurements must be checked exactly. According to the Court, in fact, in the verification it is noted that the floor area, estimated for the licensed plan, is equal to 62.38 m2, and therefore 2% is equal to 1.24 m2, so the increase in surface area falls perfectly within the construction tolerance allowed by the art. 34 of Presidential Decree 380/01. And since the inter-storey heights of the building are the same, the increase in volume also respects the expected tolerance.

In this situation, therefore, we cannot speak of illegality of the works, with the consequence that taxation is not applicable and the Municipality’s claim is completely unfounded.