HEADMBLE HEAD: also deduced from the refusal of an application for amnesty due to the unavailability of paper practice

Jurisprudential case

A concrete example of the test principle was identified in the sent. April 24, 2025, n. 8031, of the Lazio Tar, Rome, section II bis, in which the judges considered a plan found relevant in the act of sale of the property of 18 July 1958, which traced the state of the property to that date. According to the judges, “This factual situation entailed for the Administration the burden of proving that on that date the building permit was necessary with reference to this property and the works in question, since there was a proof principle of the maximum date of realization of the works themselves“.

Another concrete case took place in the sent. 9 September 2024, n. 7485, of the Council of State, section II, in which the test principle was a 1973 building license, issued to the owner’s father, albeit missing the design documents.

The Tar Sicily, Catania, section III, in the sent. April 15, 2024, n. 1411, considered it possible in the abstract, as a test principle, an application for 4.10.1960 with which the authorization had been requested to make some changes to the demolition and reconstruction project relating to the work, the approval of the municipal building commission in the session of 7.10.1960, the subsequent communication of the mayor instantly with a note from 8.10.1960.

The Administrative Justice Council for the Sicilian Region, in the Sent. June 6, 2025, n. 446, considered sufficient a 1960 license for the “demolition and reconstruction” of a property built after 1942, of which the original title was unavailable.

A recent concrete case: the legitimate state that can be deduced from an unavailable amnesty practice

Recently, the Campania Tar, Salerno, section II, in the sent. 9 September 2025, n. 1439, in front of a provision of the technical office that had rejected a 1986 building amnesty application on the detection that the practice of amnesty was declared unavailable with an act of 2023, because it did not find in the paper archive of the entity, recalled the rule in question to affirm the illegitimacy of the refusal given that the office, in declaring the unavailability of the practice, expressly realized the following circumstances:

• The practice, as integrated by the interested party, was “complete with all the required documentation“;
• The interested party had reconstructed the practice “in a precise and punctual way“;
• The practice, based on the reconstruction carried out by the interested party, would have been first facie welcomed;
• The dispersion of the practice could well be due to the “several removals and/or movements of the municipal archives“Carried out over the years.

According to the judges, therefore taking into account the violation by the PA of the obligation of custody of the legal acts held by it and not resorting to the culpable behavior of the interested party, the general rule of art. 9-encoreparagraph 1-encoreof Presidential Decree no. 380/2001, on the subject of legitimate state of the building, which, in the presence of a test principle and if the official copy of the act is not available, allows the use of other probative documentation.

The refusal, therefore, was canceled, with the obligation of the municipal technical office to reproduce itself in accordance with the principle stated.

Notes

(1) Tar Campania, Naples, section III, sent. September 2, 2024, n. 4785.
(2) Tar Campania, Naples, section III, sent. September 2, 2024, n. 4785.