Legitimate demolition even if the work is remediable: the ruling of the TAR The ruling of the Tar Sicily confirms the legitimacy of the demolition of illegal works, clarifying that the ordinance is a bound act, even in the presence of potential healthiness never requested.

Make a house with pool, verandaswalls and accessory rooms on agricultural land, without having any building permit, can lead to heavy consequences. This is what happened to a town in the municipality of Canicattì, which was notified of ademolition order for building several works in total absence of qualification.

Convinced that the provision was illegitimate, the owner decided to challenge him in front of the Tar Sicilyclaiming that the works were remedied, that a correct investigation was missing and that the act had been signed by an official without power.

The Regional Administrative Court for Sicilyhowever, with the sentence no. 636 of 20 March 2025rejected the appeal, confirming that the demolition order was perfectly valid and that, in cases like this, The administration has no discretion: abuse must be sanctioned and demolished. A clear pronunciation that offers important ideas for citizens, technicians and professionals in the construction sector.

But what has the judge led to reject every single exception? And can really a potentially remediable work be demolished if the amnesty is not required?

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The abusive works that ended up in the sights of the Municipality

The heart of the judicial affair was born from an inspection carried out on March 31, 2023 by the agents of the Municipal Police of Canicattì. During the inspection, the creation of a real small building complex, completely devoid of qualifying title, was ascertained. The abusive works, all ultimate and finished, included:

• a underground pool of oval shapepresumably made of reinforced concrete;
• a Villa on an above ground floor with veranda;
• a room used as a kitchen and oven with further veranda;
• walls in perforated bricks covered with cement mortar and finished with colored plaster;
• Rooms on the ground floor for animal hospitalizationwith one annexed canopy.

Following the inspection, the technical official of the building and urban planning office of the Municipality has drawn up one technical report detailed, highlighting the total absence of building permits and quantifying a A total of over 700 cubic meters. The affected area fell in Agricultural area (area and PRG)where the building possibilities are strongly limited by urban legislation.

The Municipality therefore issued, on May 5, 2023Demolition managerial ordernotified a few days later to the owner, with whom the full removal of the works was ordered by 90 days from the notificationpursuant to art. 31 of Presidential Decree 380/2001. It was therefore a tied provisionor an act due by law once the existence of illegal constructions have been ascertained.

Despite the clarity of the regulatory framework, the recipient of the ordinance has decided to appeal to the TAR, raising numerous disputes of legitimacy on the administrative process followed by the Municipality.

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The reasons for the appeal and the disputes of the owner

The owner of the property decided to challenge the demolition order in front of the Sicily Tar, advancing several disputes aimed at obtaining the cancellation of the provision.

In his opinion, the Municipality would have issued the order in the absence of an adequate investigation and with a completely insufficient motivation, limiting itself to referring to a technical relationship that would never have been notified to it. Furthermore, the disputed works would not have been described precisely, making the order unclear and difficult to execute.

Another point raised concerned the alleged incompetence of the municipal manager who had signed the ordinance: according to the applicant, following the declaration of financial instability adopted by the Municipality in 2022, all managerial positions would have been suspended, and the responsible official could not have adopted such relevant acts without a specific delegation of the mayor.

The woman also contested the fact of never having been put in a position to participate in the procedure, underlining how The ordinance had been issued without any noticepreventing them from presenting observations or documents in their defense.

Finally, he claimed that the works carried out, albeit illegal, they would still be remedied According to the provisions of current urban planning legislation, since they are located in an area not bound and theoretically compliant.

For all these reasons, he asked for the cancellation of the act, claiming that the order was disproportionate, illegitimate and spoiled under several profiles.

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The Tar assessments and the rejection of the appeal

The Regional Administrative Court for Sicily, with the sentence no. 636 of 20 March 2025rejected all the appellant’s disputes, judging the grounds of appeal unfounded.

First of all, he clarified that the demolition order was not affected by lack of motivation: The provision, in fact, was not limited to a generic postponement to the technical report of 31 March 2023, but reported its essential contents, making both the assumptions of fact and the legal reasons of the repressive intervention intelligible.

As for the question of competencethe Tar said that the municipal manager who signed the ordinance legitimately acted, as art. 31 of Presidential Decree 380/2001 attributes directly to the manager or to the manager of the competent municipal office the supervisory power on building and adoption of sanctions in the event of abuse. In support of this interpretation, the Court also attracted the sentence of the Administrative Council of Justice for the Sicilian Region (CGARS) n. 486 of 5 July 2024, which reiterated the principle for which this competence derives ex lege and does not require delegation of the mayor.

Furthermore, he specified that the municipal resolution of instability does not affect the ordinary managerial functions, but only concerns the financial profiles of the body.

With regard to the lack of communication of the start of the procedure, the TAR referred to a consolidated jurisprudence according to which the demolition order, as a bound deed, does not require prior communication of the start of the procedure provided for by law 241/1990, since it is a sanctioning measure which is automatically born once the building abuse (Cons. State n. 6490/2021, n. 4389/2019, n. 2681/2017) was ascertained.

Finally, on the theme of the sanateability of the works, the college underlined that any possibility of regularization does not exclude the legitimacy of the demolition order at allespecially in the absence of a formal instance in this sense. The disputed works, in fact, could not be considered “very modest entity” and, moreover, insisted on an agricultural area (area E), where the building possibilities are rigidly limited.

In summary, the TAR considered that the order was fully legitimate in every profile and rejected the appeal, compensating the costs between the established parties.