Landscape and saving remediation: clarifications of the Mic on the binding opinion of the Superintendencies

Constraints and opinions

The circular first sweeps away any doubt about the hypothesis of considering the inapplicability of the new hypotheses of amnesty to the case of bound properties, making a comparison between the text of art. 36-bis of yourswhich is also applicable to cases of expansion of bound properties, and art. 167 of the Code of Cultural Heritage and Landscape (Legislative Decree 42/20024), which instead prohibits the opinion of ex post compatibility.

The provisions of your own establish that in the event of interventions carried out in partial discrepancy by the permit of
build or from the trailor in the absence or in discrepancies from the alternative wake to the building permit, the abuse manager or the current owner can obtain the permits in amnesty if the intervention complies with the urban planning discipline in force at the time of submitting the applicationas well as to the requirements prescribed by the current building regulation At the time of realization.

The same article expressly provides for the binding opinion of the Superintendency responsible for compliance with the bond, in the event that the interventions have been performed In the absence or discrepancy from the landscape authorizationeven in the face of works that have determined the creation of useful surfaces or volumes or the increase in those legitimately made. The Superintendency must be expressed within the peremptory term of 90 days, otherwise it is meant the silence-assent formed And the head of the municipal office can independently provide. The same rules require the binding opinion even when the interventions should be incompatible with a constraint affixed to their realization.

The preventive authorization the senses of the Code of Cultural Heritage and the Landscape

So far the yours. For its part, art. 167 of the Code establishes that the competent administrative authority must ascertain landscape compatibility for work only for interventions that have not determined extensionswhile art. 146 establishes that landscape authorization it cannot be issued subsequently to the worksexcept the cases expressly identified by paragraph 4 of art. 167 (works that have not determined extensions; use of materials in discrepancies from the landscape authorization; ordinary or extraordinary maintenance interventions pursuant to art. 3 of yours).

Finally, art. 183, paragraph 6, of the Code provides that “the laws of the Republic cannot introduce derogations from the principles of this legislative decree if not through express modification of its provisions”. To read the rules in this way It would therefore seem that there is incompatibility between the provisions of the Salva Casa and those of Legislative Decree 42/20024, which instead – explains the Mic – does not exist.

Always binding opinion, therefore no incompatibility

The problems, in fact, underlines the circular, can be easily resolved by applying the chronological criterion of the succession of laws over time. In practice in art. 183 of the Code must be recognized a programmatic function which, as such, is not able to affect the superior ordinance principles governing the succession of laws over time. And, for its part, art. 36-bis of your non-derogation from the principles of Legislative Decree 42/2004, since the opinion of the Superintendencies maintains binding nature for the purpose of ascertaining landscape compatibility of the building intervention already carried out, so that there is no contrast with art. 183 of the code.

The ban on the release of the landscape authorization in amnesty – underlines the MIC – does not exclude, in fact, that the legislator can introduce, by law and in general, limited hypothesis in which the landscape compatibility of an intervention can be ascertained ex post. Therefore on the basis of the provisions of art. 36 bis Tuo can be issued the binding opinion even in the case of interventions carried out in partial discrepancies from the building permit or by the certified report of the start of activity in the cases expressly indicated by the rules. There are still firm i sanctioning principles and remittance in Pristino referred to in art. 167 of the code in the event of a negative evaluation.

Furthermore, the Mic still underlines, it must be considered that paragraph 4 of art. 36-bis of the Tua provides that “the provisions of this paragraph also apply in cases where the interventions referred to in paragraph 1 are incompatible with the landscape constraint affixed to their realization”, with the consequence that even if the works have been carried out in a time prior to the composition of the bond is It is necessary to proceed with the request to ascertain the landscape compatibility.

Quick checks to avoid silence-assent

The Superintendencies, therefore – concludes the circular – are required to proceed carefully to the landscape compatibility assessments and release the opinion within the peremptory term of 90 days As for the mature of theertia, silence-assent is expected, so the administration is no longer titled to express itself on the landscape compatibility of the intervention already carried out. Consequentially “Any effective internal organizational measure must be activated to limit the mature of silent assent to marginal and residual cases”.