Art. 24, Consolidated Construction Text
I remember, in summary, that with the 5-bis paragraphs, 5-ter introduced by the Salva Casa in art. 24, the Consolidated Building Text has been recognized for the designer technician to assemble, under certain conditions, the compliance of the project to the limited purposes of the audibility in the following cases: rooms with a minimum internal height of less than 2.70 meters, up to the maximum limit of 2.40 meters; Mono-high accommodation, for a person, with a minimum area, including services, less than 28 square meters, up to the maximum limit of 20 square meters, for two people, less than 38 square meters, up to the maximum limit of 28 square meters.
Paragraph 7-bis of art. 24 then establishes that the certified report can also be presented in the absence of works in order to request the usability for legitimately carried out properties that are without them, so as to facilitate the circulation of real estate and, consequently, facilitate the (re) qualification of the building heritage.
These indications had then found authoritative confirmation in the CNN study n.40-2025/p, analyzed by me in the contribution indicated in the introduction, which had expressed itself as follows: “It is therefore clear that the standard does not in any way represent a amnesty of works illegally carried out with these dimensional characteristics in the absence or in discrepancy entitled Building“.
The position of the administrative judges
In this context, the clarifications provided by the sentence of the Lombardy Tar, Milan, section are inserted fully. IV, 25 August 2025, n. 2861 (attached here for prompt consultation)which provide useful ideas for sector operators.
The need for a punctual interlocution with the PA
The affair brought to the attention of the first instance administrative judge concerned the refusal opposite by a municipality for the application of art. 24, paragraphs 5 bis and 5 ter of Presidential Decree no. 380/2001, given that the works subject to SCIA, in the opinion of the Municipality, would not have been “Suitable to guarantee an improvement in the hygienic-sanitary conditions of premises already intended for home, since it is an intervention consisting in the change of intended use with the transformation of accessory rooms used as eviction/cellar into residential premises. Therefore, the overall reduction in internal height at 2.50 meters would not have been admissible also for premises with the permanence of people, having to respect the prescribed hygienic health requirements. Hence the need not only to review the project documents, but also to accompany the file of the necessary verification about the existence of the aero-lighting reports of the premises subject to the building intervention“.
In the face of this municipal request, the interested parties had integrated the graphic documents but had reiterated – without adding anything, to what we read in the sentence – that the works relating to the project in question would have been “compliant with the conditions provided for by the aforementioned paragraph 5 bis and 5 ter of Presidential Decree 380/01“. From here, the subsequent rejection of the wake judged legitimate by the Lombardy Tar.
The scope of appropriate applying: is only valid for residential buildings?
From this different point of view, which concerns the perimeter of simplified herability, the Lombardy Tar sentence does not take a position on the merits.
In particular, in the face of the position expressed by the Municipality, according to which the scope of the simplified audibility, introduced by the save-house, “It is limited only to the “existing premises already for home use”, while in the present case, since it is a renovation intervention with change of intended use from accessory accessories of eviction/cellar to home, it would have been necessary to comply with the sanitary hygienic requirements provided for by Ministerial Decree 05.07.1975“, The judges limited themselves to declaring inadmissible the ground of appeal due to failure to appeal the municipal provision within the terms.
Except that the sentence is contested to the Council of State, a circumstance obviously not predicable, the possibility that other judges would welcome the opinion of private individuals would not seem excluded. The latter, in fact, had supported in the appeal as “The scope of application of the aforementioned forecasts should instead necessarily include the non -residential buildings and/or the local – in the face of the growing demand for accessible housing spaces – with the consequent possibility of transforming the same into homes, thus having to avoid any interpretation “tendentially restrictive” of the new legislation“.
Conclusions
The peculiarity of the case, which led the administrative judges to compensate for the expenses of the first instance judgment of which it has been taken into account, allows operators of the sector to draw some teachings.
Firstly, even if from a purely legal point of view, it is necessary to evaluate whether requests for integration formulated by a municipality within the building procedure constitute or not constitute a provision harmful to the position of private individuals. Obviously, undertaking an administrative dispute involves costs, but in the specific case the failure to appeal municipal documents within the terms provided for by the law has determined the rejection of the appeal.
Secondly, if the restrictive interpretation that limits the recoverability of the premises should find credit in other jurisprudential positions, this part of the save-seal would also be destined to remain a dead letter, as highlighted in other aspects at the end of the deepening published in n. 9 of the magazine The technical office.
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