Denied usability and generic reasons
The controversy arose from the provision with which the Municipality declared the ineffectiveness of the certified usability report presented by the owner of a farmhouse. The building was originally built by ETFAS (Ente per la Trasformazione Fondiaria e Agraria in Sardinia) at the end of the 1950s.
The municipal technical office had blocked the practice by claiming that the plans attached to an old concession from 1989 showed different surfaces and volumes compared to the abstract model of rural buildings that ETFAS used to erect in those years. However, the Municipality had not based itself on the actual projects for the construction of the properties in question, but simply on a typological study commissioned by the Municipality itself in 2024. Hence the appeal of the owner who had purchased the farmhouse in 2023.
No to the abstract model as a parameter of abuse
The Council of State accepted the private individual’s appeal, defining the Municipality’s action as flawed by a profound lack of investigation and motivation.
Palazzo Spada recalled that art. 9-bis, paragraph 1-bis of Presidential Decree 380/2001, in recalling the evidentiary documents for properties built when the building permit in the countryside was not mandatory, refers to the specific property and not to a “typology” of a historical-architectural nature.
In this specific case, then, the fact that the actual building differs from the theoretical “basic typology” planned by the reclamation body does not at all demonstrate the presence of building abuse, especially since the Municipality’s own study admitted that almost no farmhouse in the area had been built respecting that ideal model to the millimetre.
Valorisation of previous interventions by the Administration
But not only that. Over time, the Municipality had issued multiple titles for the building in question, effectively recognizing its legitimate status. Specifically, it involved:
- building permit dated 1 March 1982 for an extension (cold storage room);
- denial provision in 1987, motivated exclusively by reasons of residual volumetric indices of the coastal agricultural area, which as such presupposed the detailed calculation and validation of the existing volumes of the farmhouse;
- building permit dated 21 April 1989 for a waste disposal system, whose graphic drawings meticulously described the volume of the building (house and warehouse-shed) identical to the current one.
In addition to this, there were two CILs presented in 2023 and 2024 for ordinary and extraordinary maintenance works covering the entire building, collected by the Municipality without any disqualifying relief.
The judges established that the examination and express acceptance of these practices over the years constitute a “complex and coherent behavior of the Administration over time”. Having verified the volumes and lots several times to issue the subsequent titles, the PA has generated a legitimate expectation: if it intends to deny the legitimate status, it has the burden of producing a timely and stringent justification for a certain abuse, and cannot limit itself to dusting off a theoretical model, which was also non-existent at the time of construction and developed subsequently.
Legitimate state and principle of proof
In conclusion, the Council of State underlined that for the purposes of demonstrating the legitimate status of a property pursuant to art. 9-bis of Presidential Decree 380/2001, the “complex and coherent behavior of the Administration over time” also constitutes a principle of proof, in particular through the issuing of qualification certificates which presuppose the urban-building conformity of the building.
In the presence of such elements, “the Administration that denies its legitimacy must provide timely and convincing reasons”, which did not happen in the case in question as the motivation lies exclusively in the mere comparison of the existing structure with a construction “model”, identified only recently. I therefore settle the owner’s appeal against the Municipality.
The map of protections for the legitimate state (Council of State 6972/2026)
|
Element of urban planning verification |
Rule |
Prohibition |
|---|---|---|
|
Compliance parameter |
The legitimate state pursuant to art. 9-bis Presidential Decree 380/2001 applies to the specific concrete property. |
Use of an “abstract typological model” of an archive historical-architectural nature |
|
Value of subsequent titles |
They provide full proof whether the investigation involved the calculation and verification of the overall volumes of the property |
Reclassified to simple irrelevant “graphic representations” or isolated partial interventions |
|
Conduct of PA |
Consistent behavior over time constitutes a principle of proof of regularity |
Possibility to disprove your offices after decades based on recent urban planning studies |
|
Burden of temporal proof |
The municipality must demonstrate that the modifications did not take place under the free construction regime in the countryside |
Demand that the private individual demonstrate geometric conformity to models from the 1950s |
|
Buyer protection |
Recognition of the innocent trust of the private individual who buys an asset protected by previous titles |
Obligation of the buyer to verify theoretical models not registered in formal historical documents |
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