Demolition and reconstruction: three conditions for not losing the alternative SCIA

When even the alternative SCIA is not enough

The case addressed by the Council of State concerns a company that purchased an industrial property in Milan in 2017, with a main warehouse and a separate appurtenant warehouse, and in 2018 presented SCIA for the remediation and demolition of the existing building. Four years later, in 2022, it presented a new SCIA alternative to the building permit (so-called Super SCIA) for demolition and reconstruction with change of intended use from industrial to residential, out of shape and grounds.

The project involved a two-storey residential building with four residential units and seven underground parking spaces, to be built by excavating the land and retaining a wall. The Municipality of Milan, with a provision dated 17 October 2023, certified the building and urban planning compliance of the project, but the condominium owners of a nearby property challenged the act. The Lombardy TAR accepted the appeal, annulling the provision. Decision confirmed by the Council of State on the basis of the very concept of “demorisconstruction”.

No to “volumetric credit” to rebuild elsewhere

The sentence defines the perimeter of the demoreconstruction interventions, or “reconstructive restructuring”, in light of the current regulatory text (art. 3, paragraph 1, letter d) of the TEU) which broadens the perimeter of the interventions compared to the original 2001 text, but still sets specific limits.

The initial version in fact required “demolition and subsequent faithful reconstruction” with identity of shape, volumes, site area and characteristics of the materials. Legislative Decree 301/2002 eliminated the adjective “faithful” and the restriction of grounds and materials. Legislative Decree 69/2013 removed the gauge limit for non-restricted buildings and introduced the restoration of collapsed or demolished buildings. Legislative Decree 76/2020, converted into law 120/2020, then allowed cases of different shapes, elevations, grounds and planivolumetric characteristics to be included in the perimeter, specifying however that the intervention can include increases in volume only in the cases provided for by legislation or municipal planning instruments.

In practice, we read in the sentence, even by eliminating this constraint “it cannot be considered that the demolition derives – in itself and in the absence of specific legal provisions or urban planning instruments – a sort of “volumetric credit” that the owner can spend while still remaining within the scope of the “renovation”, the latter having to respect a series of limits and conditions”.

These are three specific requirements: the violation of even one of these conditions leads to qualification as a new construction. Let’s see them.

Three mandatory requirements

The first requirement is the uniqueness of the building undergoing intervention. In practice – we read in the sentence – it is not possible to merge volumes of buildings that were distinct nor to divide an original volume into multiple buildings. The provision refers to “a building organism” compared to the “previous” in the singular, evoking elements such as shape, elevations, grounds and planivolumetric characteristics which presuppose a single term of comparison. Anyone who wants to demolish two separate warehouses and merge their volumes into a single building is not renovating, but building new.

The second requirement is the temporal contextuality between demolition and reconstruction. Both must be legitimized by the same building permit, giving rise to a unified intervention. The hypothesis of the restoration of collapsed or demolished buildings, introduced in 2013, constitutes a distinct case which recovers on a substantial level the continuity lost on a temporal level, however requiring the demonstration through objective elements (factory deeds, building titles, cadastral plans) of the “pre-existing consistency” of the building. Anyone who demolishes on the basis of a SCIA and rebuilds years later with another SCIA cannot invoke reconstructive restructuring, because the uniqueness of the procedure is missing.

The third requirement is the neutrality of the intervention on the territory. From the art. 3, letter. d) of the Building Consolidated Law, it is clear that the reconstructed volume cannot exceed the demolished one and that works that involve morphological transformations of the territory beyond those already determined by the pre-existing property are excluded. The elimination of the constraints on shape and terrain has not canceled the lowest common denominator of the various versions of the rule, consisting in the neutral impact on the territory in its physical dimension. Legislative Decree 76/2020 confirmed this conservative purpose by bringing the innovations back to the purposes of “recovery and qualification of the existing building heritage” and “containment of land consumption”. Those who carry out excavations, retaining walls and basements that are not strictly functional to the reuse of the available volume transform the morphology of the territory beyond what is expressed by the demolished building.

No to anyone who violates even one of the conditions

As underlined in the ruling, in the case in question all three requirements were violated.

1. The lack of temporal contextuality is decisive: the building was demolished in 2018 with a SCIA and the reconstruction was planned in 2022 with another SCIA;
2. the uniqueness of the building is compromised by the merging of distinct volumes which violates the limit of neutrality because, while originally the impact on the territory was limited to the main building due to the irrelevance of the relevance, with the reconstruction we arrive at a property of greater volume and impact;
3. neutrality on the territory is also exceeded for the excavation works, construction of the retaining wall, construction of the basement, the carriage ramp and the connecting road, works which are not limited to what is strictly functional to the reuse of the available volume, but involve a morphological remodeling which qualifies the overall intervention as a new construction. The intervention must be appreciated in a global and non-atomistic way.

Failure to comply with these three conditions leads to the intervention being classified as a new construction, and therefore making the use of SCIA alone impracticable.