In the construction scene and urban planning regulations, the judgments of the administrative courts play a crucial role in defining the limits within which it is possible to remedy works carried out without authorization. A recent decision by the Lombardy Tar has reaffirmed a fundamental principle: the taxation of the building abuse, provided for by art. 34 of Presidential Decree 380/2001, cannot be used as an alternative to demolition in the case of interventions carried out in total discrepancy compared to urban planning rules.

The case in question concerns ademolition order issued by a Lombard municipality against some works built without permission.

The owner attempted to avoid demolition by asking for the application of a pecuniary sanction instead of the demolition. However, the TAR rejected the appeal, confirming the legitimacy of the municipal ordinance.

When is it possible to avoid demolition and obtain the taxation? What are the criteria established by the legislation? And above all, what established the TAR in this story?

Let’s find out in detail.

Advertisement – Advertising

The case: abusive works and demolition ordinance

The dispute was born from the construction of some building works in a Lombard municipality, in an area subject to landscape constraints. The owner of a property had carried out significant interventions, including The construction of artificial embankments supported by containment walls, an external staircase and a central stone wallmodifying the original structure of the ground.

After an urban planning verification, the Municipality ascertained that the works were without the necessary building permit and that, due to their nature and impact on the territory, they could not be considered simple changesbut real new buildings. Consequently, it has first denied the assessment of compliancepreventing the posthumous regularization of the intervention, and then issued andemolition order Pursuant to Articles 31 and 32 of Presidential Decree 380/2001.

According to the Municipality, the works had been carried out in the absence of a building title And, therefore, they included among the most serious abuses, which could not be remedied with a simple pecuniary sanction. Furthermore, since it is an area protected from a landscape point of view, the intervention was incompatible with environmental and urban planning regulationsincreasing the difficulties of a possible regularization.

The owner contested the ordinance by claiming that the demolition would entail Damage to the stability of the main property and other regularly existing structures.

However, the Lombardy Tar, in a previous judgment, already had rejected a first appealconfirming the legitimacy of the municipal ordinance and reiterating that the interventions carried out were in no way remedied.

Advertisement – Advertising

The request for taxation and the new appeal

After the first rejection by the TAR, the owner attempted aLast way to avoid demolition: the request for taxation of the building abuse, or the possibility of replacing the reduction with a pecuniary sanction.

This possibility is provided for byart. 34 of Presidential Decree 380/2001which allows, in certain cases, to avoid demolition by applying a fine. However, so that this procedure is applicable, the work must be carried out both in partial discrepancies from the building permit and that his removal entails a structural prejudice to other legitimately built parties.

The owner then presented a new application to the Municipality, claiming that:

  • The demolition of illegal works would have caused damage to legitimately built parts of the property.
  • The works could be included in the cases of partial discrepancyallowing the application of art. 34 and therefore the taxation of the abuse.
  • The Municipality was supposed to evaluate the impact of demolition on the main building, as indicated by a previous sentence of the ordinary court.

However, the Municipality has rejected the application againmotivating the refusal with several factors:

  1. The works were not in partial discrepancies, but made in the absence of building permittherefore subject to the mandatory demolition envisaged by articles 31 and 32 of Presidential Decree 380/2001.
  2. The landscape bond It imposed further rigidity in the management of the abuse, making the regularization impossible even in the presence of a fine.
  3. The TAR, in the sentence already issued on the case, had qualified works as new buildings and not as simple building differentitythus excluding the possibility of taxation.

Following this decision, the owner again challenged the provision in front of the Lombardy Tar, claiming that the Municipality he had not correctly evaluated the damage deriving from demolition and had failed to apply the principle of proportionality.

Advertisement – Advertising

The sentence of the Lombardy Tar

The Lombardy Tar, with sentence no. 859/2025, examined the new appeal in detail, evaluating the arguments of the owner and the reasons of the Municipality in denying the taxation of the building abuse. After an in -depth analysis, the Court decided to reject the appealconfirming the legitimacy of the demolition order and considering the administrative action taken by the local administration correct.

According to the sentence, the request for taxation could not be accepted because the works carried out they did not fall into the category of interventions performed in partial discrepancy. On the contrary, the Court reiterated that it was a construction without any building permit, therefore to be considered in total discrepancy or with essential variationsconditions that, based on theart. 32, paragraph 3, of Presidential Decree 380/2001do not allow to replace demolition with a pecuniary sanction.

Another relevant aspect that contributed to the rejection of the appeal concerns the presence of a landscape constraint on the affected area.

The urban legislation imposes more stringent criteria in the territories subject to environmental protection, making the possibility of regulating illegal works inapplicable through the payment of a sanction. The TAR then confirmed the correctness of the municipal decision, claiming that the demolition was the only option required by law in similar situations.

The owner also tried to contest the measure by appealing to principle of proportionalityclaiming that the demolition was an excessive measure with respect to the real entity of the abuse. However, the Court rejected this argument, clarifying that, in construction, the demolition is The only remedy for constructions carried out without authorization.

The principle of proportionality cannot be invoked to escape an obligation sanctioned directly by current legislation.

In addition to confirming the demolition order, the TAR validated the pecuniary sanction of 20,000 euros imposed on the owner for the failure to comply with the demolition order on the scheduled time.

The sentence stressed that this sanction, provided for by theart. 31, paragraph 4-bis, of Presidential Decree 380/2001is mandatory for those who do not remove the abuse within the term assigned by the Administration.

Finally, the Court sentenced the applicant to pay the procedural costsquantified in 4,000 eurosto be divided between the municipality and the counterparty involved in the procedure. With this decision, the TAR reiterated a fundamental jurisprudential principle: Taxation is not an alternative to demolition for works carried out in total absence of building permit, especially in areas subject to landscape constraints.