Jurisprudence
The jurisprudence has clarified, in this regard, that “the application of the pecuniary sanction provided for by the art. 38 of Presidential Decree 380/2001, if it is not possible to remove defects in the procedures or restore them to pristine condition, it can only be applied in the case of defects that concern the form and procedure and which – in the light of a concrete assessment carried out by the Administration – are non-removable”(2); this because “The protection of trust through the exceptional amnesty power contemplated by art. 38 of Presidential Decree 380/2001 cannot go so far as to allow a sort of administrative amnesty entrusted to the evaluation of the administration, in derogation of any urban planning, environmental or landscape provision, under penalty of unacceptable evasion of the planning principle and irreversible compromise of the territory , but is rather reasonably limited to defects that relate exclusively to the authorization procedure, which cannot redound to the detriment of the private individual who legitimately relied on the presumption of legitimacy of what was agreed”(3).
A concrete case of a purely formal defect
The recent one sent. 24 October 2024, n. 833, the TAR Lombardy, Brescia, sec. IIdealt with a case in which there wascancellation of a building renovation project based on the fact that the partial variation to the urban planning instrument underlying the intervention could not have been approved with a simplified procedure but would have required the activation of the ordinary procedure. According to the judges, it was a purely formal viceAnd not substantial, of the authorization proceduretaking into account that, from a substantial point of view, the municipal council had already favorably evaluated the intervention and its urban-building compatibility. From a formal point of view, however, to overcome the impeding provision of the urban planning instrument in force at the time, the administration should have approved the partial variant to the PGT with the ordinary procedure and not with the simplified one.
Since it was a merely formal flaw, the administration could have remedy it with the exceptional instrument referred to in art. 38 TUEaimed at protecting the legitimate expectations induced in the private individual by the issuing of the building permit when the latter is affected by merely formal defects, especially when the latter – as in the present case – are attributable solely to the municipal administration itself.
What comes into consideration is, in essence, a special form of validation of the flawed administrative measure which, by express provision of law, can exceptionally intervene after the judicial annulment of the flawed provision, in the presence of merely formal defects. Like any validation measure, the one adopted by the administration pursuant to art. 38 TEU, in order to remove the formal defects that have undermined the legitimacy of the administrative procedure produces by its nature retroactive effects, making building permits legitimate (in this case, the recovery plan and the subsequent building permit) from the beginning, therefore without the need to request further amnesties or amnesties.
In this case, the administration had quite failed to evaluate the possibility of removing the defect which invalidated the recovery plan and the consequent building permit, proceeding now and then with the approval of the partial variant to the urban planning instrument with the ordinary procedure.
According to the judges, the Municipality should have proceeded automatically to verify whether the formal defect could be amendedregardless of any request by a party, expressly imposing it under art. 38 in question.
Notes
(1) Presidential Decree no. 380/2001.
(2) State Council Ad. plen., 07/09/2020, n. 17.
An effective summary of the jurisprudence is contained in TAR Campania, Salerno, section. II, sentence. 5 October 2020, n. 1305: “The regulatory provision has, over the years, been interpreted variously by jurisprudence, which, in principle, tended towards a wide-ranging interpretative reading, which identified the fact of whether or not the defect (substantial or formal) could be concretely amended ) the decisive criterion for applying or not the regime of taxation of abuse. To this end, the investigation to which the administration was required had exquisitely broad boundaries, as it had to verify whether the formal or substantial defects could be amended, or whether the demolition was actually possible without causing damage to other completely regular assets or works, and, only in the presence of the aforementioned conditions, was it possible to validate the intervention and full payment of the financial penalty which produces, in fact, the same effects as the building permit under the amnesty referred to in article 36. (State Council, Section VI n. 2419/2020; State Council section VI, 04/11/2019, n.7508; State Council, Section VI, 04.11.2019, n. 5089; State Council , Section VI, 28.11.2018, n. 2398).
The Plenary Assembly, with sentence no. 17 of 15.07.2020, overcame these guidelines with the following articulated arguments:
“because it constitutes an exceptional exception to the principle of necessary repression through demolition of building abuses, the provision is protected by two conditions: a) the first is the reasoned assessment regarding the impossibility of removing defects in the administrative procedures; b) the second is the reasoned assessment regarding the impossibility of returning it in pristine condition. These are two heterogeneous conditions since the first concerns the sphere of administration and presupposes that the validation activity of the administrative provision (sub specie of the building permit), pursuant to art. 21 nonies paragraph 2, by removing the defect in the relevant procedure, is not objectively possible; the second concerns the private sphere and concerns the concrete possibility of proceeding with the restitution of the places in their pristine state.
Both conditions are indeed declined in a generic way by the legislator, as the latter has not clarified what is meant by “defects in administrative procedures” and by “impossibility” of reducing them to pristine condition.
The questions posed by the referral order focus on the first aspect, as jurisprudence has in some cases maintained that “procedural defects” can include all those potentially capable of invalidating the provision, whether they relate to the form and procedure, whether they instead relate to the conformity of the final measure with the building and urban planning provisions governing the construction. According to this now well-established jurisprudential line, the taxation of the abuse would regardless of the type of defect (procedural or substantial) having the legislator entrusted the exceptional feasibility of the pecuniary amnesty to the discretionary evaluation of the administration, in execution of a power that has its roots and its legitimacy in the need to protect the trust of the private individual. in this interpretation, the “reasoned evaluation” provided by the administration is the only element on which the administrative judge’s review should focus.
The Plenary Assembly has a different opinion, in light of the following textual and systematic considerations.
The provision in question makes specific reference to “procedure” defects, thus taking care to segment the causes of invalidity that can justify the operation of the temperament reported several times, in order to distinguish them from the other defects of the provision which, not relating to the procedure , involve profiles of compatibility of the construction with respect to the planning and regulatory framework that regulates the an and quomode of the construction activity.
It is no coincidence that the wording of the law imposes, albeit implicitly, on the administration the obligation to preliminarily remedy the defect, removing it through a second-level activity which can easily be subsumed in the exercise of the validation power generally contemplated by the art. 21 nonies paragraph 2 of the general law on proceedings. validation through the removal of the defect necessarily implies an illegitimacy of a “procedural” nature, as it is clear that any different defect relating to the regulatory substance of the administrative relationship with respect to the current regulatory framework would only be overcome through a modification of the latter; ius superveniens which, as it concerns the general regulatory context, certainly goes beyond the concept of “removal of the defect” relating to the single and concrete provisional case.
The reference to an abstractly validatable procedural defect operationally delimits the semantic field of the subsequent and connected normative proposition referring to the impossibility of removal, this being understood as an impossibility which still pertains to a defect which, on an abstract level, would be susceptible to validation, and which, due to the reasoned assessments expressly made by the administration, does not appear to be the case in practice”.
Ergo, the following binomial derives from the motivational substratum of the Plenary Meeting: procedural flaw/application of art. 38; substantial defect/ non-application of art. 38.”.
(3) Council of State, sec. VI, sen. 11 October 2023, n. 8869.
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