The lack of building-urban planning regularity
Given that, as highlighted by the sentences cited (and by a peaceful orientation), such necessary correlation between the carrying out of commercial activities and the perfect building-urban planning compliance of the premises it's a substantial requirementwhich must exist both at the time of release of qualifications that laterin the functional moment, for the entire duration of its implementation, the PA:
– cannot authorize the establishment of a commercial activity in conflict with urban planning regulations;
– has the power-duty to inhibit activity exercised in premises in respect of which investigations and/or repressive measures relating to building abuse have been adopted (2); and in fact, according to jurisprudence, it is legitimizes the forfeiture of the commercial SCIA due to the proven urban-building irregularity of the premises used for administration purposes (3);
– it has no margin of discretion regarding the initiatives to be undertaken (withdrawal of the commercial authorization already issued and, in any case, the closure of the business), to be considered dutiful(4): in particular, the closure of the business carried out in illegal premises constitutes, in fact, the expression of a constrained sanctioning powerconsequent to the ascertained illegality of the properties, with the further consequence that it does not take into account any failure to send the communication of initiation of the procedure(5);
– has a easier motivation burden: if there is no doubt that the decisions taken regarding the cessation of the previously authorized commercial activity must find an adequate justification in the measure adopted, however the lack of urban planning and building regularity (which prevents the premises from being deemed fit for use) represents a prerequisite alone sufficient to prohibit commercial activity(6).
A relevant regulatory reference
A precise regulatory reference of this principle can be found in the art. 3, paragraph 7, of Law no. 287/1991 (“Update of the legislation on the establishment and activity of public businesses“), according to which the activities of supplying food and drinks “must be exercised in compliance with current regulations, requirements and authorizations regarding construction, urban planning and sanitationas well as those on the intended use of the premises and buildings, without prejudice to the imposition of sanctions relating to the rules and regulations violated”.
Partial discrepancy: a jurisprudential opening
According to the TAR Puglia, Lecce, section. I, heard. 28 December 2021, n. 1917, “the closure of the commercial activity relating to the entire structure cannot be ordered in the face of only partial illegality of the property, which yields disproportionate the total inhibition of the activity itself”(7).
In this specific case the disputed discrepancies (consisting in the different positioning of some internal partitions, in the different sizing of the external openings, in a different internal height of some rooms for a few centimeters and, mostly, decreasing, in the different distribution of the solar panels on the roofs, in the creation of a small technical room and external walkways, etc.) were found minimal in characterso that completely banning the commercial activity would have been, according to the judges, “in contrast to i principles of proportionality and reasonableness of the administrative action, ending up imposing an unjustified sacrifice on the private party”(8).
Note
(1) See also TAR Campania, Naples, sec. III, sentence. 1 June 2022, n. 3731: “This Section stated that the conformity of the buildings with urban planning and building regulations constitutes the indispensable prerequisite for the legitimate issuing of the certificate of usability, as can be seen in the art. 24 paragraph 3, Presidential Decree 380/2001 and art. 35, paragraph 20, ln 47/1985, since, even before the legal logic, it is reasonableness that excludes the possibility of using, for any purpose, a building that does not comply with urban planning – building regulations and, as such, in potential conflict with the protection of the bundle of collective interests for whose protection that discipline is preordained. (TAR Campania, Naples, Section III, 4 September 2019, n. 4453)”.
(2) Council of State, sec. II, sentence. 27 July 2020, n. 4774; section III, sentence. 26 November 2018, n. 6661; section V, sent. 17 July 2014, n. 3793; section VI, sentence. 23 October 2015, n. 4880; TAR Campania Naples, section. VII, sentence. 27 April 2020, n. 1496; section III, sentence. 1 August 2018, n. 5140.
(3) TAR Campania, Naples, sec. III, sentence. 16 June 2022, n. 4097.
(4) TAR Tuscany, section. III, sentence. 9 December 2021, n. 1642; TAR Calabria, Catanzaro, section. II, sentence. 14 June 2019, n. 1219.
(5) Council of State, sec. III, sentence. 26 November 2018, n. 6661.
(6) TAR Campania, Naples, sec. III, sentence. 1 August 2018, n. 5140.
(7) TAR Campania, Naples, sec. VIII, sentence. 6 April 2018, n. 2244; section VII, sentence. 27 April 2020, n. 1496.
(8) The Lecce judges specified the following: “It should be noted that the Board does not ignore the consolidated jurisprudential orientation according to which the proven illegality of the premises intended for the exercise of the commercial activity can only lead to the revocation of the commercial authorization, without any remaining room for evaluations of interests or the disengagement of discretionary activity, posing the revocation as a due act (TAR Campania, Naples, Section I, 09/12/2019, n. 5795; in terms, Cons. Stato, Section V, 21/04/2021, n. 3209; Section VI, 23/10/2015, TAR /2018, no. 6811). However, the case in question differs from the case studies examined by the aforementioned jurisprudence for two reasons: firstly, it is observed that, since the cessation of an economic activity cannot constitute an ex se sanction for building abuse, they must be considered the measures of inhibition of commercial or economic activity are illegitimate for alleged violations of urban planning and construction regulations which have not translated, as in the present case, into conclusive and typical building sanctioning measures, such as suspension and demolition orders (see . TAR Campania, Section III, 02/27/2017, n. secondly, in the case in question the building permit was issued under amnesty pursuant to articles. 36 and 37 Presidential Decree n. 380/2001, thereby further confirming the non-existence of the substantial conditions for the immediate and urgent adoption of the drastic measure of closing the business.”.
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