Permit to build in amnesty: the limits to be respected

The need for double compliance

As is known, the building permit in amnesty pursuant to art. 36 presupposes the double conformity of the works both with the urban planning-building regulations in force at the time of construction, and with that in force at the time of submission of the application: the lack of one of the two requirements excludes the assessment of conformity, regardless of subsequent circumstances or any restoration interventions not relevant for the purposes of the legal requirement (2).

This is an indefectible prerequisite of the institute, which allows only formal abuses to be regularized and not works that are materially incompatible with urban planning instruments.

The conditional amnesty and the partial amnesty

As reiterated by the Salerno judges, a permit classified as an amnesty is illegitimate where, in addition to regularizing works already carried out, it authorizes further works to be carried out in order to achieve compliance(3).

A partial amnesty is not possible, on the assumption that the concept of construction must be understood in a unitary sense and not in relation to individual parts considered independently, therefore it is not possible to separate the construction between the various elements that compose it for the purposes of amnesty of individual portions of it(4).

The burden of proof

From these principles derives a consolidated criterion, according to which the burden of proof of double conformity falls entirely on the private individual, who invokes the conservation of a work which, in the absence of the title, would otherwise be subject to demolition. It is, therefore, the applicant who must provide all the elements necessary to reconstruct the pre-existing state of the property and the compatibility of the interventions with the applicable urban planning regulations ratione temporis.

Documents such as: are available to the private individual – and he is required to produce them:

• previous building permits or original plans filed;
• historical cadastral plans and archive extracts;
• graphic drawings, technical reports and surveys carried out before the works;
• photographs with certain date or other objective documentation of the state before construction.

However, probative relevance must be excluded from declarations in lieu of notoriety or statements from unverifiable third parties, as these are means of proof unsuitable for demonstrating complex facts such as the original consistency of the property or its urban planning compliance.

The Municipality, on the other hand, is not required – nor would it be in a position to do so – to officially reconstruct the building history of the properties present in the area; the office, in fact, must only verify the documentation produced by the applicant and, if this documentation is missing or insufficient, the denial of amnesty (express or tacit) is legitimate(5). In fact, whoever starts the amnesty procedure must rigorously prove both building compliance at the time of construction and at the time of application. In the absence of this proof, the Administration cannot issue the amnesty permit(6).

The concrete case

In the specific case analyzed in the reported sentence, the request for amnesty concerned the “construction of a portico with steel pillars and wooden roofing as well as partial execution of works already planned with SCIA”.

The reasons for the refusal adopted by the municipal technical office were two:

• the conflict with the urban planning regulations, due to violation of the urban planning regulations relating to the “historic centers and nuclei” area of ​​the PUC, given that in these areas only ordinary and extraordinary maintenance, restoration and conservative redevelopment interventions were permitted as well as changes of intended use compatible with the area regulations; while this intervention was configured as a building renovation intervention, because it modified the shape of the building; for failure to observe distances from borders and public roads;
• the conflict with the building regulations, regarding the legitimacy of the pre-existence and the failure to comply with the obligations required in seismic areas.

The judges considered these reasons acceptable. In particular, the intervention carried out (“a wooden porch with iron pillars of m. 7 x 4.20/3.50 with central dormer window and ridge line approximately m high. 2.80, whose opening is approximately m. 4.75”, integrated the typical elements of a building renovation, given the modification of the shape and elevation: this type of intervention was not possible according to the applicable urban planning regulations (which, on the contrary, allowed extraordinary maintenance interventions).

According to jurisprudence, building renovation takes place where, through the renewal of the constituent elements of the building, an alteration of the original physiognomy and physical consistency of the building is achieved, incompatible with the concepts of extraordinary maintenance and conservative renovation which presuppose, instead, the creation of works that leave the structure of the building and the internal distribution of its surface unchanged(7).

Translating the hermeneutic coordinates de herebus in the case brought to their attention, the judges did not recognize the extremes of extraordinary maintenance (invoked by the interested party), precisely because of the significant surface and volumetric consistency, suitable, therefore only, to determine the creation of a new and different building organism, in the terms expressed above; as indicated in the sentence, “Certainly, the construction of a wooden porch with iron pillars of m. 7 x 4.20/3.50 with central dormer window and ridge line approximately m high. 2.80, whose opening is approximately m. 4.75, integrates the typical elements of a building renovation, given the modification of the shape and elevation.”

The works, therefore, were considered incurable, due to conflict with the applicable urban planning regulations.

Notes

(1) Art. 36 – Verification of conformity in the event of absence of title or total non-conformity
1. In the case of interventions carried out in the absence of a building permit, or in non-conformity with it, or in the absence of a certified report of commencement of activity in the cases referred to in Article 23, paragraph 01, or in total non-compliance with it and in any case until the expiry of the terms referred to in Articles 31, paragraph 3, 33, paragraph 1, and in any case until the imposition of administrative sanctions, the person responsible for the abuse, or the current owner of the property, they can obtain the amnesty permit if the intervention complies with the urban planning and building regulations in force both at the time of its construction and at the time of submitting the application.
2. The issuance of the amnesty permit is subject to the payment, by way of oblation, of the construction contribution in double amount, or, in the case of free of charge by law, in an amount equal to that provided for in article 16.
3. The manager or person in charge of the competent municipal office decides on the request for amnesty permit, with adequate justification, within sixty days after which the request is considered rejected.
(2) TAR Lombardy, Brescia, sec. II, sentence. 21 July 2025, n. 703.
(3) TAR Lombardy, Milan, sec. II, sentence. 7 July 2025, n. 2572.
(4) TAR Lazio, Rome, sec. II, sentence. 20 May 2025, n. 9702.
(5) TAR Sicily, Palermo, sec. V, sent. 10 December 2025, n. 2731; TAR Lazio, Rome, section. II, sentence. 9 June 2025, n. 11192.
(6) TAR Sicily, Palermo, sec. IV, sentence. 7 March 2025, n. 516.
(7) TAR Campania, Naples, sec. III, sentence. 11 July 2024, n. 4194; TAR Tuscany, section. II, sentence. 15 January 2024, n. 56.