The indications of the jurisprudence
Given that a part of the jurisprudence, especially of the first instance, considers unnecessary a specific administrative declaration (1), the Reggio judges adhere to the majority orientation according to which the forfeiture requires a declaration, upon the outcome of a specific procedure (2), as also reiterated by the Council of State, according to which the operation of the forfeiture of the building permit requires in any case of the intermediation of a formal provision of a formal provision of a formal provision administrative, albeit having a declaration effectiveness of an effect that occurred ex if and directly (3).
What is observed now overturns on the necessary interlocution with the private individual through the appropriate participatory tools, in relation to which it must be remembered that the jurisprudence has had the opportunity to specify that the loss of effectiveness of the building permit for failure to start or completion of the works in the prescribed terms must be ascertained and declared with a formal provision of the Administration also for the purposes of the necessary contradictory with the private individual of the existence of the legitimize its determination (4).
The specific case
The case examined by the judges Reggini, however, did not follow a hypothesis sic et simpliciter of mere inertia by the owner of the building permit, having paid the latter part of the legal charges and, still in time, that is, just before the expiry of the term of the law, he had sent to the common formal communication of the start of works, and then claimed to have taken steps to start activities in any case connected to the same (in particular, providing to delimit the construction site area, to the partial demolition of existing buildings concerned, to position the billbox, to make the shutdown of the affected area, to create the base with concrete boulders for the positioning of the crane as well as positioning construction material) by attaching, for the rest, the existence of contingent economic difficulties.
According to the TAR, it was reasonable to believe that, where the communication of the start of the forfeiture had intervened, the human elements would have been placed on the attention of the Administration as a factual contribution to allow a more conscious hiring of the competent determinations. In essence, the complex of the antecedents and the attachments of the applicant make the work of the resistant municipality censurable which it has d’Amblais omitted any participatory moment in the procedural site.
On the other hand, there was no reason that it can justify – in the context of the controversial case – the omission of this participatory moment, considering that, following the communication of the beginning of the works and before the formal declaration of forfeiture, the Municipality had had the opportunity to carry out an inspection of which she had not considered (as it could have been able to note the owner of the building permit and that, where the participation had been allowed, could have been an opportunity overall of the bottom, also in light of the fact that the visual of the site from the external observation point was partial, since the participants introduced in the fund did not, a circumstance overall corroborated by the inspection report where it was stated that the staff concerned had gone “near“Of the areas themselves.
In conclusion, the omission of the procedural participatory phase as part of the specific controversial case affected AB IMIS The decline measure involves de Plano the cancellation of the provision; Although obvious, the re -edition of the power to declare the forfeiture of the municipal technical office, after activating the procedural participation, is always possible, starting from the sending of the communication of the start of the procedure.
Notes
(1) Tar Sicily, Catania, section I, sent. February 16, 2015, n. 528; Palermo, section II, sent. March 14, 2014, n. 746; Tar Lazio, Rome, section II bis, sent. August 28th. 2005, n. 5370.
(2) Council of State, section V, sent. June 26, 2000, n. 3612.
(3) Council of State, section IV, sent. 22 October 2015, n. 4823 and, lastly, section VI, sent. May 16, 2024, n. 4391.
(4) Council of State, section VI, sent. March 23, 2023, n. 2935; sent. November 15, 2017, n. 5285; Section V, sent. 12 May 2011, n. 2821; Section IV, sent. January 29, 2008, n. 249; Section VI, sent. February 17, 2006, n. 671.
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