Demolition canceled by the TAR: the notice to the citizen was missing, the Lazio Tar confirms the refusal of amnesty for a work in the bound area, but cancels the demolition for lack of contradictory, enhancing the right to participation.

When building something without the right building permits, you risk not only the refusal of amnesty, but also the demolition of the work. However, even in these cases, the public administration has the obligation to follow precise rules and respect the rights of the citizens involved.

A recent and interesting sentence of the Lazio Tar, n. 3934/2025 which rejected the request for amnesty but, at the same time, has The demolition order canceled for a serious procedural error by the Municipality.

But what does the sentence really say? Why can a simple formal error block a demolition? And which protections today have those who are in similar situations, perhaps thanks also to the recent Save-Casa decree?

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The concrete case: a small structure and two measures

The affair at the center of the sentence starts from an apparently marginal building intervention: a small roomabout 4 square metersmade on a terrace and intended for tool deposit. It was not a habitable environment, nor a significant expansion of the overall volume of the building.

However, a qualification was missing, and the area in which the property fell undergoing it was subjected to landscape constraints.

In this context, the owners had submitted an application for building amnesty pursuant to the so -called “third amnesty“, Introduced by the decree-law of 30 September 2003, n. 269, converted with modifications in the law of 24 November 2003, n. 326, and subsequently regulated, as regards the Lazio Region, by the regional law n. 12/2004 (later modified by the LRN 17/2005).

The Municipality rejected the request, motivating the refusal with the presence of the landscape constraints and with the failure to comply with the requirements of the regional legislationmuch more stringent than the national discipline. Shortly thereafter, the administration has also adopted andemolition order of the abusive work, notified to the owners, However, without activating any form of contradictory or preventive communication.

Considering both unjust acts – the refusal of the amnesty and the demolition order – the citizens decided to make the TAR, supporting on the one hand the sanitation of the intervention and on the other the violation of the procedural guarantees that would have had to protect their right to actively participate in the administrative procedure.

The Court therefore addressed two central and distinct issues: if the requested amnesty could legitimately be denied, and if the Municipality had respected the correct procedural forms before imposing the demolition.

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Because the TAR has given reason to the Municipality (on the amnesty)

In evaluating the legitimacy of the refusal of building amnesty, the Lazio Tar reiterated a principle now consolidated in administrative jurisprudence: The presence of landscape constraints constitutes an impeding cause to the amnestyexcept rare exceptions provided for by law. In this specific case, the work carried out-although small-fell in an area classified as “B1-Saturo”, subject to landscape protection in category C.2.2, therefore affected by environmental and urban constraints.

The central regulatory reference is art. 32 of the decree-law n. 269/2003 (converted into law no. 326/2003), which regulates the so -called “third amnesty”. This rule, as underlined also by the Constitutional Court (judgments no. 208/2019 and n. 181/2021), does not allow the amnesty of illegal works built on bound propertiesexcept that it is minor interventions such as restoration, conservative restoration or extraordinary maintenance.

The Lazio Region, with its regional law n. 12/2004, has applied this rule even more rigorously, further narrowing the hypotheses of condonability, precisely to safeguard the landscape, the environment and the archaeological heritage.

Art. 3, paragraph 1, lett. b), of the regional law clearly establishes that The works carried out are not remedied, even before the imposition of the constraint, if not compliant with urban planning tools and falling within protected areaslike those in which the work object of the appeal was located.

In light of this regulatory framework, the TAR deemed legitimate the refusal opposite by the Municipality, underlining that, even if the artifact was in accordance with urban planning tools, The mere presence of the bond was enough to exclude the possibility of the amnesty. Nor the modest entity of the intervention, nor the time spent by the realization of the abuse, were able to affect the outcome of the evaluation: the sanctioning measure, in these cases, has in fact boundand the Administration has the obligation to apply the current legislation without margins of discretion.

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Because instead he canceled demolition

Unlike what was decided on the amnesty, the Lazio TAR accepted the added reasons presented by the applicants, canceling the demolition order issued by the Municipality. The reason? A procedural lack of anything but negligible: The Administration did not send the notice of the start of the procedurethus violating art. 7 of law no. 241/1990, which requires the public administration to communicate the start of administrative proceedings to the subjects concerned.

According to the court, This omission has compromised the citizen’s right to participationa principle today also strengthened by the decree-law n. 76/2020 (so -called “simplifications decree”), which expressly introduced, to art. 1 of Law 241/1990, the obligation for administrations to act in compliance with the principles of “collaboration and good faith”.

Although, in the past, the jurisprudence has often considered that demolition orders – as bound documents – do not require the prior communication, The TAR highlighted a change of course: When the concrete case has complex aspects or margins of uncertainty, it is necessary to open a contradictory, especially if the sanction can be avoided with alternative remedies of remediation.

In the present case, for example, although it is a non -condonable work pursuant to law no. 326/2003, The artifact could have returned to the new “construction tolerances” introduced by the Salva-Casa decree (Legislative Decree 69/2024, converted into L. 105/2024), which has expanded the possibilities of amnesty for minor discrepancy.

In this perspective, the TAR deemed that the Municipality should have granted the citizen a space to present observations, verify the applicability of the new rules or demonstrate that the intervention was not so serious as to require immediate demolition.

The sentence also recalls the principle of proportionality sanctioned by the European Convention on Human Rights (art. 1, protocol no. 1), according to which the sanctioning measures that affect private property must be calibrated on the concrete case and not be excessive or disproportionate to the objective pursued.

In conclusion, Although the denial of the amnesty was legitimatethe demolition was considered illegitimate due to lack of procedure, and therefore canceled.