Asymmetric conformity assessment
Circular no. 1566357/2024 (downloadable at the end of the article), after reiterating theimmediate (but not so obvious) applicability of the regulations established by the legislator with Legislative Decree no. 69/2024 (converted, with amendments, into Law 105/2024), focuses in point 1) on the assessment of asymmetric conformity.
The clarification is particularly important “That the works in partial discrepancy or in essential variation they must have been carried out during the period of effectiveness of the reference title, with the consequence that the works carried out outside this period are to be considered carried out in the absence of a titleand therefore excluded from the institution in question governed by the art. 36-bis”.
The question is anything but terminological: if one accesses the regional indication to make use of this regularization procedure, in fact, it is always necessary identify the time in which they were made partial discrepancies or essential variations; this indication, in other ways, takes on a general nature and is therefore also valid for the identification of discrepancies or variations carried out many years after the expiry of the effectiveness of the building permit or building permit or building permit. As is known, the works must always be started within one year of issuing the title and completed within the following three years (see art. 31, X and implemented in the current art. 15, paragraph 2, Consolidated Law on Construction).
At this point, as the well-known television journalist said, the question arises spontaneously. What happens, for example, for works carried out during the Second World War in which, often, the “factory types” were lost or destroyed due to the tragic war events and, more generally, how can we demonstrate the period of such creations? The question does not find a single answer which, in addition to almost transforming into a “diabolical proof” for the private individual concerned and for the technician in charge, it nullifies the simplifications referred to in the art. 9-bis, paragraph 1-bis, Presidential Decree 380/2001 regarding the legitimacy of pre-existences.
From this point of view we share the considerations expressed regarding the curability of the pre-1977 variants ex art. 34-ter, Consolidated Construction Law by L. Pasanisi, Urban redevelopment and the mini-building amnesty pursuant to Legislative Decree no. 69/2024, conv. in Law no. 105/2024 (so-called Save Home Decree), in www.giustizia-amministrativa.it. According to this author, in fact, “it is easy to foresee a development of the dispute over these declarations, with criminal implications (the eventuality of which will probably induce the parties to find technicians benevolently willing to face these risks)”.
In any case, the circular appropriately summarizes it in tables 1 and 2 classification of partial discrepancies, essential variations and total discrepancydistinguishing them among those in restricted area (tab. 1) and those in unrestricted area of the regional territory (tab.2), specifying that those indicated at the beginning of the page are not considered as such. 6.
The circular then focuses on the interventions carried out in absence or in discrepancy from the certified notification of commencement of activityspecifying for which of them it is not necessary to evaluate the typology of the works and which, however, do not fall into this typology because they were created without a title.
The conformity assessment: relationships with the assessment of landscape compatibility
The entire point 2) is dedicated to the relationship between art. 36-bis, Consolidated Construction Law, theassessment of landscape compatibility and the connection with Legislative Decree 42/2004 (so-called Cultural Heritage Code).
We highlight the particular usefulness, which crosses regional borders, of indications provided on the payment of the oblations referred to in the art. 36, paragraphs 5 and 5-bis, Consolidated Construction Law. In fact, as already observed by many professionals and recalled by the circular, “the rule does not specify the moment in which the pecuniary sanction is due nor the person responsible for communicating the sanction.”
Well, “for the purposes of calculating the pecuniary sanction, pending an organic review of the sanctioning regime and any indications at national level”the circular specifies the following regarding paragraph 5-bis:
“- The “damage caused” it will be determined by calculating the sum that would be necessary for the restoration of the works carried out according to the “Regional Tariff for building, road, plant and hydraulic works” in force at the time of issuing the final provision;
The “profit achieved” it will be determined based on the increase in the value of the property calculated according to the IMU/ICI criteria resulting from the transformations resulting from the works carried out;
there minimum sanction is determined at €2,000.00;
as clarified by opinion no. 12633 of 04/20/2017 made by the Legislative Office of the Ministry of Cultural Heritage and Activities and Tourism, in case of works carried out before the landscape restriction was affixedthe pecuniary sanction is not due as it does not constitute a landscape offence.”
The assessment of landscape compatibility for public works and for works completed by 11 May 2006
Point 3) of the circular focuses on the assessment of landscape compatibility for theconstruction activity of public administrationswhile point 4) refers to the assessment of landscape compatibility for works completed by 11 May 2006.
The inapplicability of the services conference: perplexity
Point 5), dedicated to the services conference, states its opinion inapplicability with respect to the landscape compatibility procedure on the basis of an interpretation of the conference which, again in the writer’s opinion, does not find express normative support.
In fact, even if we ignore the fact that the services conference is not a collegial procedure (as instead supported in the regional circular), the reasons given on pages 12 and 13 of the circular deserve a separate in-depth analysis.
Questionnaire and Rome Capital
Finally, point 6) outlines a procedure through which the interested Municipalities will be able to ask questions of general interest to the Region and obtain answers, in part, which can be shown to anyone. It is highly probable, therefore, that the Municipality of Rome will turn to the Region to see the (admittedly provisional) indications provided with opinion no. confirmed or denied. 205723 of 21 October 2024 which has already been reported.
For the necessary further information, therefore, all that remains is to wish the users of the site a happy reading of the circular.
