The motivation that must support the demolition order
The TAR Basilicata, section. I, in the sentence. 7 May 2024, n. 240after recalling that, in the matter of repression of building abuses, the jurisprudence is firm inexclude a protectable expectation of maintaining an abusive de facto situationthat the time that has passed since the abuse took place does not legitimize it at all(1), highlighted that thedemolition order is sufficiently motivated with the simple reference to the historical fact of the existence of the construction and the legal fact of its illegal nature(2).
Given the peaceful abusive nature of the works, in this regard, it is sufficient to recall the principle stated by the Plenary Assembly, according to which “The provision with which the demolition of an illegal property which has never been supported by any title is ordered, albeit belatedly, due to its nature which is bound and rigidly anchored to the occurrence of the relevant prerequisites in fact and in law, does not require justification in relation to reasons of public interest (other than those relating to the restoration of the violated legitimacy) which require the removal of the abuse even in the case in which the demolition injunction occurs some time after the abuse has taken place, the current owner is not responsible for the abuse and the transfer does not indicate an intent to evade the burden of restoration”(3).
The communication of initiation of the procedure
The Lucanian judges also reiterated(4) that the demolition order for illegal building works must not be preceded by the notice former art. 7(5) of Law no. 241/1990being a due actwhich is issued as a sanction to ascertain non-compliance with urban planning provisions according to a procedure of a restricted nature precisely typified by the legislator and rigidly regulated by the law; therefore, since it is an act aimed at repressing building abuse, it arises by virtue of a factual assumptionthat is, the abuse, of which the interested party must be reasonably awarereturning within its sphere of control.
The deadline for compliance is less than 90 days
The TAR Lazio, Rome, section. The excerpt, in the sentence. 1 March 2024, n. 4155reiterated that the assignment of a deadline of less than 90 days for compliance with the demolition order does not determine its illegitimacyresolving into one merely formal violation not harmful to the interested partywho in any case maintains a deadline no shorter than the legal one to comply with the injunction(6).
In other words, the assignment of a shorter term than the legal one (established as 90 days by art. 31, paragraph 3(7), of the Consolidated Construction Law) does not produce any other effect other than that of temporarily precludeor until the expiry of ninety days, the free acquisition of the illegal building for the municipality's heritage(8).
Note
(1) Council of State, sec. VI, sentence. November 24, 2022, n. 10360 and sent. March 19, 2021, n. 2380.
(2) Council of State, sec. VI, sentence. 12 February 2019, n. 1014.
(3) Council of State, Ad. Plen., sentence. 17 October 2017, n. 9.
(4) Council of State, sec. II, sentence. 21 December 2020, n. 8204: “The demolition order following the verification of the illegal nature of the building works, like all building sanctioning measures, is a necessary act and must not be preceded by the communication of initiation of the procedure, as it is a sanctioning measure for the verification of the failure to comply with urban planning provisions according to a procedure of a constrained nature precisely typified by the legislator and rigidly regulated by the law to repress building abuse; furthermore, the factual basis of the demolition measure, i.e. abuse, constitutes an element of which the appellant must be reasonably aware, falling within his sphere of control (Council of State, section VI, 5 June 2017, n. 2681; id., 25 February 2019, n. 1281;
The restricted nature of the demolition provision entails, in any case, the application of the art. 21 octies, second paragraph, first part, of law no. 241 of 1990, according to which “the measure adopted in violation of the rules on the procedure or the form of the documents cannot be annulled if, due to the binding nature of the measure, it is clear that its dispositive content could not have been different from that actually adopted ””.
(5) Art. 7 – Communication of initiation of the procedure
1. Where there are no reasons for impediment deriving from particular needs for speed of the proceedings, the start of the proceedings itself is communicated, in the manner provided for in Article 8, to the subjects against whom the final provision is intended to produce direct effects and to those who by law must intervene. Likewise, if the aforementioned reasons for impediment do not exist, if a measure may cause harm to identified or easily identifiable subjects, other than its direct recipients, the administration is required to provide them, in the same manner, with notice of the start of the method.
2. In the cases referred to in paragraph 1, the administration's right to adopt precautionary measures, even before making the communications referred to in the same paragraph 1, remains intact.
(6) Council of State, sec. VI, sentence. 8 July 2011, n. 4102; section V, sent. 24 February 2003, n. 986.
(7) 3. If the person responsible for the abuse does not demolish and restore the state of the premises within ninety days of the injunction, the property and the land area, as well as that necessary, according to current urban planning regulations, for the construction of works similar to illegal ones are acquired by right free of charge to the municipality's assets. The acquired area cannot, however, exceed ten times the total illegally constructed useful surface area.
(8) Council of State, sec. VI, sentence. 26 July 2022, n. 6594.
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