As is known, consolidated jurisprudence believes that the start of the works is suitable to prevent the forfeiture of the building permit when the works undertaken are such as to highlight theactual desire to create the product(1).
The actual start of work it cannot be considered in a general and abstract waybut rather with specific and precise reference to the entity and dimensions of the building intervention as planned and authorised, and this with the clear aim of prevent the deadline for starting construction from being evaded by resorting to fictitious and symbolic worksand therefore not objectively significant of an actual intention of the holder of the concession to proceed with construction.
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The start of the works must therefore be relevant in order to prevent the forfeiture of the building permit proven by carrying out transformations that exceed the threshold of mere preparatory activities, since they must be of significant extent, their evaluation for these purposes cannot ignore the consideration of the work to be carried out.
The jurisprudential indications on the actual start of the works
The jurisprudence has clarified that:
- “the start of the works aimed at preventing the forfeiture of the building permit occurs when the works undertaken are such as to highlight the actual desire to create the building; the actual start of the works cannot be considered in a general and abstract way, but rather with specific and timely reference to the extent and dimensions of the building intervention as planned and authorized, and this with the clear aim of preventing the deadline for starting construction from being evaded by resorting to fictitious and symbolic works, and therefore not objectively significant of an actual intention of the holder of the concession itself proceed with construction; the start of the relevant works in order to prevent the forfeiture of the building permit must therefore be proven by the carrying out of transformations that exceed the threshold of mere preparatory activities, as they must be of significant extent; the evaluation for these purposes cannot ignore the consideration of the work to be carried out, so the peculiarities presented by the planned intervention should not be overlooked”(2);
- “construction works must be considered “started” when they consist of concentration of resources and menthat is, inconstruction site systemin the’raising of load-bearing elementsin the elevation of walls and in the execution of excavations coordinated with the revenue from the foundations of the building being constructed, to prevent the permit expiration deadline from being evaded by resorting to fictitious and symbolic interventions; the mere execution of excavation works is, in itself, unsuitable for considering the requirement of the actual “start of work” satisfied within one year from the issue of the building permit under penalty of forfeiture of the qualification (art. 15 , Presidential Decree 6 June 2001, n. 380), it being necessary, in order to exclude the possibility of the crime of illegal construction, that the excavation is accompanied by the complete organization of the construction site and by other suitable indications to confirm the actual intention of the owner of the building permit to carry out the approved work”(3);
The mere cleaning of the area outside the building
The TAR Campania, Salerno, section. II, in the sentence. 31 October 2024, n. 2038in application of the above hermeneutic coordinates, stated that it’s not enough to irrefutably prove the actual start of the works the cleaning of the area outside the building has been carried out, without excavation of excavation.
Likewise, the activities indicated by the interested party in the introductory appeal (and not in the procedural stage) were not considered sufficient, i.e. the preparation of the construction site by fence of the lot, the installation of the relevant scoreboardthe positioning of container for office and changing room use and the leveling and excavation works, as they are not directly and immediately connected to the start of the works, as clearly stated by the consolidated jurisprudence, according to which: “For the purposes of complying with the deadline for starting the works referred to in the art. 15 Presidential Decree 380 of 2001, it is necessary to carry out activities directly and immediately connected to the start of the works, and such cannot be considered the construction of the construction site fence, the cleaning of the area, the installation of the construction site signs, nor even they can be the cutting of treestheopening of an access gate to the landthe demolition of part of a border wall; finally, not even the excavation of the land and the execution of the excavation works are a clear sign of a serious start of the works”(4).
Case studies
Among the cases, we remember that is not sufficient to avoid the forfeiture of the building permit:
- the identification of the company in charge of the work(5);
- the simple excavation of the land and the preparation of construction tools and materials (6);
- the sole execution of excavation works and without clearly having developed the organization of the construction site(7);
- the cleaning of the site and preparation of the construction site and the materials necessary for carrying out the works(8);
- excavation, leveling and fencing of the land (9);
- the movement of earth and the casting of a layer of concrete to circumscribe the foundations of the building (10);
- the construction of some foundation plinths and related pillars(11);
- a partial excavation activity, relating to a single pillar, with the casting of a section of foundation relating to one of the foundation beams (12).
Notes
(1) Council of State, sec. IV, sentence. 18 May 2012, n. 2915; section IV, sentence. 15 April 2013, n. 2027.
(2) Council of State, sec. IV, sentence. 13 July 2022, n. 5925; TAR Lombardy, Milan, section. II, sentence. 27 August 2014, n. 2262.
(3) Council of State, sec. II, sentence. 3 December 2021, n. 8058; TAR Campania, Salerno, section. II, sentence. 18 July 2022, n. 2045; TAR Sicily, Palermo, section. II, sentence. 3 June 2022, n. 1815.
(4) TAR Abruzzo, Pescara, sec. I, heard. 4 February 2013, n. 61.
(5) TAR Campania, Naples, sec. VI, sentence. 9 February 2024, n. 970.
(6) Council of State, sec. II, sentence. 9 December 2020, n. 7827.
(7) TAR Sardinia, sec. II, sentence. 4 May 2015, n. 741; TAR Liguria, section. I, heard. 17 June 2020, n. 402.
(8) TAR Molise, sentence. 19 September 2005, n. 875, recalled by TAR Lazio, Rome, sec. II quater, sentence. 8 January 2020, n. 134.
(9) Council of State, sec. V, sent. 22 November 1993, n. 1165 and TAR Marche, sentence. 13 March 2008, n. 195, recalled by TAR Lazio, Rome, sec. II quater, sentence. 8 January 2020, n. 134.
(10) Council of State, sec. IV, sentence. 15 April 2013, n. 2027, recalled by TAR Lazio, Rome, sec. II quater, sentence. 8 January 2020, n. 134.
(11) Council of State, sec. V, sent. 28 December 1983, n. 805; TAR Lazio, Rome, section. II quater, sentence. 8 January 2020, n. 134.
(12) TAR Lombardy, Milan, sec. IV, sentence. 21 May 2024, n. 1552.
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