The importance of municipal regulations
In the correct management of the relevant procedure for issuing the authorization in question, a fundamental role is played by the relevant municipal regulation: this is what is highlighted by the sentence. 5 February 2026, n. 231, of the TAR Calabria, Catanzaro, sec. II, in which the refusal to issue the measure was deemed legitimate due to conflict with the provisions of the regulation.
In the specific case, the request was in conflict with the regulatory provision which subordinated the issuing of the authorization to the condition that “the occupation does not exceed one third of the useful width of the sidewalk and in any case guarantees an adequate area for the circulation of pedestrians and people with limited or impaired motor capacity”.
The rule, according to the clear literal tenor, outlined a double “constraint” for the occupation of sidewalks, namely:
- the maximum limit of one third of the walkable width, which represented an objective parameter of legitimacy of the occupation;
- a reduction of the limit by one third, if necessary to guarantee “the movement of pedestrians and people with limited or impaired motor capacity”.
Nor could this provision be considered excessively restrictive, instead striking a reasonable balance between the exercise of economic activities and the protection of pedestrian transit.
The importance of the regulation is an element often highlighted by jurisprudence: for example, the rule of the municipal regulation has been considered legitimate which, in regulating the preliminary investigation aimed at issuing the concession deed, expressly provides criteria for the choice in the case of multiple applications concerning the occupation of the same area, criteria which do not result in an automatism but in an evaluation which involves, in addition to the date of submission of the application, the greater compliance with the public interest or the lesser sacrifice imposed on the community(2).
Renewal as an autonomous administrative procedure
The circumstance that, in the specific case, we were faced with a request for renewal of a previous authorization was not considered relevant: in fact, the renewal procedure constitutes an autonomous administrative procedure, within which the administration is required to verify ex novo the existence of the requirements in light of the legislation in force at the time of the request.
Nor can any previous tolerance of a factual situation that differs from the municipal regulation be considered suitable for generating a legitimate expectation on the part of the private individual to preserve the error or irregularity. We also remember that jurisprudence excludes a right to insist once the concession for the occupation of public land has expired or an expectation of renewal(3).
The notice of rejection
According to jurisprudence (4), the adoption of the refusal provision must be preceded by the communication of the reasons preventing the acceptance of the application for occupation of public land pursuant to art. 10-bis of Law no. 241/1990); failure to communicate the impeding reasons prevents the applicant from communicating with the administration on the content of the final denial provision.
However, in the case of the sentence under review, the judges also negatively assessed the violation of the art. 10 encore of law no. 241/1990 for not having been communicated to the applicant, before the adoption of the refusal, the reasons preventing the acceptance of the request: in fact, in the present case, art. 21 octies, paragraph 2, of law no. 241/1990, since the denial takes on a binding nature, being, as mentioned, based on the objective contrast between the proposed occupation of public land and the limit established by the municipal regulation.
Therefore, since the measure could not have led to a different outcome, failure to communicate the rejection notice could not lead to the annulment of the denial.
The non-operability of silent consent
Since an evaluation of the conflicting interests at stake is indispensable, jurisprudence(5) excludes the possibility of applying the institution of silent consent: yet another confirmation was found in the ruling. 12 February 2026, n. 50, of the TAR Umbria, section. I, who recalled that the jurisprudence is firm in holding that “the regulation of silent consent, pursuant to art. 20 of Law no. 241/90, is not applicable with reference to requests which have as their object the use of public goods (see Council of State, Section V, n. 4660 of 7 June 2020: “The occupation of public land requires a concession provision issued by the competent Municipality, a provision which cannot be replaced by silent consent pursuant to article 20 of law 241 of 1990 considering that the concession procedure presupposes the exercise of a discretionary power first and foremost over the an, which fundamentally excludes the applicability of the silence-consent regime.”)”(6).
Notes
(1) Council of State, sec. IV, sentence. 31 January 2025, n. 719; section V, sent. 10 November 2022, n. 9847; TAR Lombardy, Milan, section. I, heard. 12 June 2023, n. 1457: “The provision authorizing the occupation of public land is discretionary in nature as the administration is required to verify that the concession takes place in the pursuit of a pre-eminent public interest and that it does not result in the harm of other public interests, beyond the comparison between the public interest pursued and the private one.”
(2) Council of State, sec. IV, sentence. 31 January 2025, n. 719.
(3) TAR Lombardy, Milan, sec. V, sent. 1 August 2025, n. 2816: “Indeed, according to consolidated jurisprudence, “once the natural expiry of the concession for the occupation of public land has occurred, there is no right of insistence on the part of the concessionaire, nor any expectation to obtain its renewal, but a mere faculty for the Administration to arrange, upon request of the interested party, said renewal, which can be denied when objective reasons of public interest occur; the concessionaire of a municipal public good is not, in fact, entitled to any expectation of renewing the relationship and the related refusal, within the limits of the reasonableness of administrative action, is comparable to the rejection of an ordinary request for release, with the consequent right of the local authority not to allow the occupation of public land that is intended to be reserved for a more adequate and suitable destination for the characteristics of the property and the realization of general interests (see for all TAR Palermo no. 814/2022; Council of State, section V, 22 April 2020, no. 2552)” (TAR Sicily, Catania, 25.6.2024, Section III, no. 2317; compliant, ex multis, TAR Marche, Section II, 9.4.2024, no. 354).
Added to this is that, in the matter of issuing authorizations for the occupation of public land, the Administration, as holder of the power to plan the planning of the territory, in the exercise of its discretion aimed at ensuring a rational use of the land, is required to carry out in advance a correct balance of the public and private interests involved, since the exercise of retail trade on public land involves a permanent use, for private purposes, of public spaces which are removed from common use. Taking into account the plurality of public and private interests involved, the Administration, in exercising its power, is required to evaluate any alternative method and form of reconciliation deemed, from time to time, appropriate from a road, urban planning and architectural point of view (TAR Marche, Section II, 9.4.2024, n. 354).”
(4) TAR Lazio, Rome, sec. II excerpt, sentence. 2 January 2025, n. 56.
(5) TAR Lazio, Rome, sec. II ter, sentence. 16 April 2020, n. 3994; TAR Lazio, Latina, sec. I, heard. 7 May 2025, n. 436; Council of State, sec. V, sent. 14 November 2023, n. 9762; TAR Lombardy, Milan, section. V, sent. 17 September 2025, n. 2945.
(6) Council of State, sec. V, sent. n. 9762/2023.
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