Jurisprudence
As noted in recent State Council arrests, “The legislator, implementing a widely widespread practice, and also on the basis of certain provisions of regional legislation, has introduced a new form of building permit capable of finding space where, outside of implementation planning, it is nevertheless necessary to structure a legal relationship between the private party and the public administration in relation to profiles collateral to the enabling content of the building permit”(2).
The tool becomes relevant, in particular, in cases in which, according to the Administration’s assessment, urbanization needs can be satisfied with a simplified method, where, essentially, second level planning could be disproportionate and redundant(3); what, for example, occurs in the hypotheses of “landlocked lots falling in already urbanized areas, in which the municipal administration must disapply the provision of the general urban planning instrument which imposes, without sufficient justifying reasons, an implementation plan that could add nothing in the face of a sufficient degree of urbanization”(4).
More generally, jurisprudence has indicated that the cases in which the conditions for the substitutability of an implementation plan with an agreed permit exist are to be considered “exceptional and of strict interpretation“(5), occurring when, according to a judgment of the Administration characterized by largely discretionary parameters, a factual situation has already arisen which allows us to safely ignore those instruments, as they are objectively no longer necessary, the result having been fully achieved (such as adequate provision of primary and secondary infrastructures foreseen by the master plan) for which they are aimed. For the application of the principle, therefore, it is necessary that the state of the urbanizations is such as to make the implementation instruments absolutely superfluous(6).
No approved building permit if the urban planning instrument provides for an implementation plan
In a recent concrete case, the TAR Campania, Salerno, section. II, in the sentence. 17 October 2025, n. 1702, stated that the agreed building permit constitutes an instrument that can be used only in the absence of a prior determination that provides for implementation planning, with the consequence that this building permit cannot be used in the event that the urban planning instrument expressly provides, as in the specific hypothesis, the need for a subdivision plan. This is a principle already stated in the past by the Council of State, according to which “if the general urban planning instrument subordinates the building rights to the prior issuing of an implementation plan, this must be considered indefectible, except in the case of schools in which a small piece of land is completely surrounded by buildings”(7).
The Salerno judges stated that, given the existence of an urban planning provision that provides for an implementation plan, the acceptance of an agreed building permit to achieve the same purposes constitutes an exception to the general rule; in the specific case, the judges, after having reiterated the wide discretion of the Municipality in relation to the choice to grant or not the agreed building permit, considered the motivation for the refusal to be free from illegitimacy, based on the need to harmonize “urbanization lacking the infrastructural needs resulting from the construction of the new buildingsalso to solve the problem of a new road system determined by the intervention itself as well as to evaluate the adequacy of the network system”.
Notes
(1) TAR Campania, Naples, sec. II, sentence. 5 January 2023, n. 117.
(2) Council of State, sec. IV, sentence. 29 September 2025, n. 7577.
(3) “For cases in which, according to the assessment of the administration, the urbanization needs can be satisfied with a simplified method, the second level planning would be redundant and not respectful of the principle of proportionality between the public interests to be pursued and the administrative instrument used, as has been constantly affirmed by the administrative jurisprudence referring to the cases of landlocked lots falling in already urbanized areas, in which the municipal administration must disapply the provision of the general urban planning instrument which imposes, without sufficient reasons justifications, an implementation planning that could add nothing in the face of a sufficient degree of urbanization (see, for all: State Council, section IV, 7 November 2014 n. 5488)”: Council of State, section IV, sentence 29 September 2025, no. 7577.
(4) See, for all, Council of State, section. IV, sentence. 7 November 2014, n. 5488.
(5) Council of State sec. IV, sentence. 30 May 2023, n. 5293.
(6) Council of State, sentence. 30 May 2023, n. 5293.
(7) Council of State, sec. IV, sentence. 1 July 2021, n. 5029 and sent. March 19, 2021, n. 2383.
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