The Council of State, with sentence no. 8542 of 2024, dealt with an emblematic case for the construction sector, rejecting the appeal of a company requesting an amnesty for the raising of an attic in a listed building. The affair has raised crucial questions related to construction tolerances and the application of new regulations, such as the recent “Save Home”.
However, the Council clarified that these regulations cannot be applied retroactively to remedy interventions already subject to denial on the basis of the legislation in force at the time of their implementation.
The ruling highlights the centrality of compliance with local and national regulations in building planning, raising questions about the actual possibilities offered by construction tolerances and recent laws.
What are the limits of “Save Home”? And how do they influence previous administrative decisions?
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The context of the appeal
The dispute originates from a company’s request to obtain amnesty for a building project which involved theraising an attic of approximately 40 cm, built in partial deviation from the original building permit.
The building, located in a historic area and subject to stringent urban planning constraints, is classified with a high degree of protection according to the Municipality’s Intervention Plan, which severely limits volumetric and shape changes. The technical implementation standards in fact establish that, for protected properties, renovation interventions can only be carried out by strictly respecting the pre-existing height, shape and volume.
The appellant company had initially requested an amnesty based on art. 34-bis of Presidential Decree 380/2001, which provides for manufacturing tolerances up to 2% of authorized measures. However, the Municipality, making use of a technical report from a specialized firm, found that the increase in height greatly exceeded the permitted tolerance limits.
Furthermore, the intervention, according to the administration, had led to a change in the shape of the building, in violation of local regulations.
After the rejection of the amnesty request by the Municipality, also motivated by the lack of conformity of the intervention with the urban planning document of the property, the company presented an appeal to the Regional Administrative Court (TAR), which confirmed the legitimacy of the refusal.
On appeal, the company brought the case before the Council of State, trying to demonstrate that the changes made fell within the construction tolerances and that the intervention was also justified by the needs of seismic improvement. The appellant also invoked the recent “Save Home” to support the remediation of the works carried out.
The Council of State, however, rejected the appeal, confirming that the intervention not only did not respect the expected tolerances at the time of the amnesty requestbut that the new “Save Home” legislation could not be applied retroactively to remedy abuses committed in the past.
The decision underlines how compliance with the regulatory framework in force at the time of the construction of the works remains a fundamental principle in construction management.
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The arguments of the parties
In the appeal proceedings before the Council of State, the appellant company articulated a series of arguments to contest the denial of amnesty. One of the central points of the defense concerned the reference to art. 34-bis of Presidential Decree 380/2001, in the version modified by Legislative Decree 69/2024 known as “Save home”. According to the company, the changes made to the building were within allowable construction tolerances, which the updated code had expanded.
In particular, the appellant argued that the raising of the attic was compliant with the new legislation and that, therefore, the refusal provision should be re-evaluated.
The company also contested the technical measurements carried out by the Municipality, stating that the increase in the height of the attic had been calculated incorrectly, taking as reference the extrados (the external part of the roof) instead of the intrados (the internal part ). This error, according to him, would have excluded exceeding the permitted tolerances.
Finally, the appellant argued that the intervention was justified by seismic improvement needs, an aspect introduced later to demonstrate the necessity of the work.
On the other hand, the Municipality maintained a firm position, reiterating that the intervention carried out violated both the technical implementation standards of the Intervention Plan, which require the maintenance of the pre-existing shape and volume, and the 2% limit envisaged for manufacturing tolerances. The technical checks, entrusted to a third party, had shown that the increase in volume and height clearly exceeded the permitted margin.
Furthermore, the Municipality contested the legitimacy of the reference to the “Save home”, arguing that this legislation supervened it could not apply retroactively to the facts which are the subject of the judgement.
In the comparison, the Council of State therefore had to balance two needs: on the one hand, the regulatory rigidity required for interventions in restricted contexts; on the other, the arguments put forward by the company in favor of the curability of the works. The issue has taken on an exemplary value, underlining the boundaries between construction tolerances, supervening regulations and respect for local rules.
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The reasons of the Council of State
The Council of State, with the sentence in question, confirmed the legitimacy of the denial of amnesty expressed by the Municipality, fully rejecting the appeal of the appellant company. The panel based its decision on an in-depth analysis of the applicable regulatory parameters and the technical evidence presented during the proceeding.
One of the central issues concerned the interpretation of local urban planning regulations, which clearly establish the impossibility of altering the shape and volume of buildings subject to protection, unless specific exceptions are made, which are not present in the case in question. The Council of State considered that the changes to the attic, consisting of a rise of 40 cm, represented a significant volumetric and planimetric variation, in stark contrast with the limits imposed by the Intervention Plan and the building’s urban planning sheets.
Regarding the 2% construction tolerances provided for by art. 34-bis of Presidential Decree 380/2001, the Council highlighted that the increase in height achieved was well beyond the permitted margin. The technical measurements, carried out by a third party appointed by the Municipality, showed an increase of 41 cm, compared to the maximum tolerance of approximately 22 cm.
Regarding the application of the updated legislation introduced by the Save Home decree, the Council clarified that this legislation cannot be taken into consideration in the judgement. The legitimacy of the contested provision must in fact be assessed on the basis of laws in force at the time of its adoptioni.e. in 2021, when the decree was not yet in force.
The Council of State also indicated that, although the Municipality could possibly reconsider the issue in light of the new legislation, this possibility is outside the scope of the proceedings. The decision was therefore based on the regulatory framework and the facts established at the time the denial was adopted.
