The validity of a building permit is a central issue in many urban planning disputes. What happens if an issued title is not withdrawn or urbanization charges have not been paid? Is it enough to declare a work created illegal?
A recent ruling by the Sardinia TAR has clarified a controversial matter, annulling a demolition order issued by a municipality and establishing important legal principles on the validity of a formally issued building permit.
Let’s discover together the details and implications of this decision.
Advertisement – Advertising
Context of the dispute
The case arose when the Municipality ordered the demolition of a building located in an area subject to landscape protection, believing that the work had been carried out without a valid building permit and in violation of current regulations. In particular, the Municipality noted that the owner had never formally withdrawn the building permit (building permit) issued nor paid the required urbanization charges, thus configuring, in his opinion, a building abuse.
Consequently, an order was issued ordering the restoration of the premises to the state at the owner’s expense.
The owner, however, challenged the ordinance arguing that the building had been built on the basis of a building permit issued many years earlier, the effectiveness of which, according to current legislation, did not depend on the material being withdrawn or on the payment of charges. He also produced supporting documentation, including the communication with which the Municipality itself confirmed the issuing of the building permit.
To attempt to remedy any discrepancies, the appellant subsequently submitted a request for conformity assessment. However, the Municipality rejected the request, justifying the refusal with the presence of irregularities which, in its opinion, made the works carried out irreparable.
This position pushed the owner to turn to the TAR, contesting both the demolition order and the legal assumptions on which it was based.
Advertisement – Advertising
The legal framework
The crucial point of the case is linked to the validity of a building permit formally issued but not withdrawn by the applicant, together with the failure to pay urbanization charges. The Sardinia TAR, in ruling on the case, referred to art. 15 of law no. 10 of 1977, which regulates the consequences of non-payment of charges by the recipient of a building permit.
According to this rule, failure to pay involves a series of administrative sanctions, such as the application of late payment interest and penalties, but does not affect the effectiveness of the building permit same.
The prevailing jurisprudence, confirmed by the TAR in this sentence, establishes that a building permit becomes effective from the moment of its issuance, regardless of the material withdrawal or payment of the charges. As underlined by the court, these aspects are relevant exclusively for the purposes of the application of administrative sanctions or the starting date of the forfeiture terms, but do not affect the intrinsic validity of the title.
Furthermore, the TAR recalled significant precedents, such as the rulings of the Council of State and other regional administrative courts, to reiterate that a demolition order based on the erroneous assumption of the absence of a valid building permit cannot be confirmed. This legal principle also applies to the case in question, where the documentation produced by the appellant demonstrated the existence of an effective building permit, confirmed by the Municipality itself at the time of issue.
Advertisement – Advertising
The TAR’s decision
The Sardinia TAR accepted the appeal presented by the owner of the building, canceling the demolition order issued by the Municipality. The decision, contained in sentence no. 941/2024is based on the demonstration of the existence of an effective building permit, issued by the Municipality in the past, despite it having not been formally withdrawn by the applicant nor accompanied by the payment of urbanization charges.
The TAR underlined that, according to the applicable legislation, the effectiveness of a building permit is not subordinated to these formal aspects, but becomes valid upon issue.
The court also highlighted that the municipal ordinance was based on the erroneous assumption that the building lacked a building permit, therefore qualifying it as entirely illegal. This error invalidated the ordinance itself, as the demolition cannot be ordered in the absence of a concrete verification of the real existence of the building defects. In other words, although it was possible that some works had been built in conflict with the original title, these should have been analyzed in a timely manner, avoiding considering the entire construction illegal.
The TAR therefore canceled the demolition order, specifying that any non-remediable discrepancies had not been adequately investigated by the Municipality. Furthermore, the court highlighted the Municipality’s failure to appear in court, an element which further strengthened the appellant’s position.
