Ruling No. 09097/2024 of the Council of State addresses a controversy linked to the denial of a building amnesty in an area subject to landscape restrictions. At the center of the case are two amnesty applications presented by a construction company, rejected for alleged violations of current regulations, including procedural delays and environmental constraints.
The decision of the Council of State canceled previous denials, reopening the debate on issues such as the correct application of silent consent and compliance with environmental constraints.
What are the consequences of this ruling for future litigation? How can citizens and businesses protect themselves in similar situations?
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The regulatory context
The controversy addressed by the Council of State draws attention to two central aspects: the building amnesty regime and landscape protection. The building amnesty in Italy was introduced to remediate buildings built in breach of urban planning regulations, provided that certain conditions were respected. The main laws of reference are Law 47/1985, known as the “first amnesty”, and the subsequent amendments introduced in 1994 and 2003.
A key element is the mechanism of silence-assentprovided for by the legislation of the first amnesty: if an opinion is not expressed within a specific deadline (180 days), it is considered favorable. However, the presence of landscape constraints, regulated by the Code of Cultural Heritage and Landscape (Legislative Decree 42/2004), can complicate the procedure. In these cases, the opinion of the Superintendency and the competent authorities is essential, under penalty of invalidity of the amnesty.
This regulatory framework raises numerous questions: when can silent consent be applied? And to what extent can environmental constraints influence the amnesty process?
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The facts of the dispute
The case examined by the Council of State originated from two applications for building amnesty presented by a company in the 1980s and 1990s, relating to interventions carried out on a property intended for the production of prefabricated buildings. The requests concerned, on the one hand, the amnesty of eight existing structures, such as warehouses, laboratories, offices and sheds, and on the other, the modification of the urban destination of an open area, used as an open-air warehouse.
The area concerned, located near a watercourse and apparently surrounded by land defined as “wooded”, was subject to landscape restrictions.
The administrative matter was characterized by considerable delays.
Although the requests had been presented decades earlier, the provincial administration had only issued a denial in 2012, based on a negative opinion from the Superintendency which highlighted alleged environmental and landscape critical issues. According to the company, however, the opinion had been issued beyond the legal deadlines, thus activating the silent consent provided for by the art. 32 of Law 47/1985. This mechanism, in fact, establishes that in the absence of a response within 180 days, the opinion is considered favorable.
A further complicating element was given by the decision, in 2010, to merge the two original requests into a single requestpresented on that date by the company at the request of the administration.
This merger had raised an interpretative question: did the unification of the requests imply the implicit renunciation of the previous requests?
According to the administration, the new procedure made the terms applicable to silent consent obsolete. The company, however, argued that this interpretation was erroneous and detrimental to its rights, since it had never formally expressed a waiver of the original requests.
The controversy, therefore, was structured around three key points: the failure to comply with the procedural deadlines, the erroneous attribution of landscape restrictions to the lands involved and the validity of the negative opinion of the Superintendence, considered flawed due to lack of motivation and for the overcoming of the times established by law.
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The judgment of the Council of State
The ruling of the Council of State represented a turning point in the matter, accepting the appeal presented by the company and canceling the denials expressed previously. The Board found that the deadlines established by the legislation on building amnesty had not been respected.
In particular, the silent consent provided for by art. 32 of Law 47/1985, in its version applicable to the case, was formed because the competent authorities had taken well over 180 days established to express an opinion on the amnesty. The decision of the Council of State clarified that compliance with the deadlines cannot be disregarded, even in the presence of landscape constraints.
Another crucial point of the ruling was the interpretation of the consolidation of the requests. The Council of State underlined that the unification of the requests, which occurred in 2010, could not be considered as an implicit renunciation of the previous requests for amnesty. This is because the the desire to renounce an already accrued right must be unequivocalwhile in the case in question the company had acted only for administrative needs and not to reopen the proceeding from scratch.
Finally, the Board highlighted that the negative opinion of the Superintendence lacked adequate justification and, moreover, had been expressed beyond the time limits established by the legislation. This flaw compromised the entire administrative process, making subsequent denials adopted by the provincial administration illegitimate.
The ruling therefore re-established the company’s rights, underlining the importance of respecting procedural rules and the correct application of regulations on landscape restrictions.
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Conclusion
The ruling of the Council of State n° 09097/2024 highlights how compliance with the rules and deadlines in administrative procedures is fundamental to guarantee the protection of the rights of citizens and businesses.
The case examined underlines the importance of silent consent as a guarantee instrument and the need for the opinions of the administrations, especially regarding landscape constraints, to be expressed in a timely and reasoned manner. This decision not only restores justice to the appellant, but also represents an invitation to improve the efficiency and transparency of the administrative machinery.
