Issue of building permit and declaration of conformity
On the other hand, symmetrically, for the purposes of issuing of the building permit the question must be “accompanied by one declaration from the qualified designer that asserts the compliance of the project to urban planning tools approved and adopted, to building regulations in force, and to others sector regulations having an impact on the regulation of construction activity and, in particular, on anti-seismic, safety, fire-fighting and sanitary regulationsto the rules relating toenergy efficiency”(1) and the person in charge of the One Stop Shop for construction in this proceeding acquires “the consent documents, however named, necessary for the implementation of the building project” And “the list of such approvals includes, in particular… c) the authorizations and certifications of the competent technical office of the region, for constructions in seismic zones referred to in articles 61, 62 and 94“(2).
It is also worth remembering that the Municipality supervises urban planning and construction activities in the municipal territory to ensure compliance with the laws and regulations, with the requirements of the urban planning instruments and with the executive methods established in the authorized titles (3) and to this end constitute essential variations to the building permit those which materialize “violations of the regulations in force regarding anti-seismic construction, when it does not concern procedural facts”(4).
In other words, the Municipality cannotbased on the aforementioned legislation, grant the amnesty title in the absence of documentation certifying that the intervention corresponds to anti-seismic regulations.
Double compliance with seismic standards: the jurisprudence
Already previously the jurisprudence had expressed itself in similar terms on numerous occasionsconfirming the negative orientation.
The TAR Campania, Naples, section. VII, in the sentence. 20 May 2022, n. 3450, had stated that in case of works falling in seismic zones the provision referred to inart. 94 of the Consolidated Construction Law, according to which, without prejudice to the obligation to have a permit for building work, in seismic locations, with the exception of those with low seismicity indicated for this purpose in the decrees referred to in the art. 83, work cannot be started without prior written authorization from the competent technical office of the Region.
Therefore, for interventions subject to a building permit or permitted following a report which fall within the seismic area, the verification of the double complianceto which theart. 36 of the Consolidated Construction Law subordinates the release of the conformity assessment in amnesty, must also refer to compliance with seismic regulationsto be included in the building regulations, both at the time of carrying out the intervention and at the time of submitting the amnesty application.
Again, the TAR Campania, Naples, section. VIII, in the sentence. 1 March 2021, n. 1347, had observed that the application of the institution of conformity assessment can only be harmonized with the subsequent articles. 96, 98, 99 and 100, which outline the only methods through which the law makes it possible to achieve the useful effect of preserving an artifact built aborigine in the absence of seismic authorization.
Lacking a specific positive regulation of the seismic authorization in the amnesty, the risk of introducing it must be avoided in such a delicate matter for people's safety – which is not even fully available on the part of the regional legislator – a sort of jurisprudential amnesty based on the posthumous verification of the conformity of the work built in any case with the technical standards for construction in seismic areas at the time of the request.
Similarly, the Council of State, section. VI, in the sentence. 19 May 2022, n. 3963, stated that in the context of the relevant building provisions for verifying the substantial conformity of the sine titulo works carried out, anti-seismic ones must be considered included – moreover placed to protect primary needs, related to the public safety – raising the question, however, of provisions regulating construction methods. Therefore, a building intervention that does not comply with anti-seismic regulations could not be remedied, in the same way as the assessment carried out for this purpose by the competent authority.
Also there Criminal Court of Cassation agrees:
– in the sentence. n. 29179/2023 highlighted that the allowed in sanatoriumif it is capable of eliminating the construction crime in the presence of the legal requirements, it doesn't affect However on anti-seismic violations; the persistence of anti-seismic violations also reflects on the possibility of configuring the so-called double conformity envisaged by the art. 36 of the Consolidated Building Act for the amnesty of building violations, because it is not possible to obtain the building amnesty if the anti-seismic violations have not been remedied;
– in the sentence. n. 2357/2022 stated that the compliance with the requirement of the so-called “double compliance”i.e. the conformity of the works with the urban planning and building regulations in force at the time of construction, and with those in force at the time of submission of the regularization application, required for the purposes of issuing the building permit under amnesty, is to be considered excluded in the case of buildings carried out without prior obtaining of seismic authorisationto.
Permit in amnesty issued in the absence of seismic authorization
According to the Council of State, sec. VI, sentence. 15 April 2021, n. 3096, the action of the Municipality is correct which, having realized theabsence of seismic authorizationproceeds tocancellation in self-defense(5) of the amnesty permit previously issued.
Since this is an area characterized by the existence of an evident public interest linked to safety public, with respect to which the private interest can only be recessive, the motivational burden on the PA can be said to be satisfied by referring to the relevant factual circumstances and referring to the protection provisions that are actually violated.
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Note
(1) Art. 20 of Presidential Decree no. 380/2001.
(2) Art. 5 of Presidential Decree no. 380/2001.
(3) Art. 27 of Presidential Decree no. 380/2001.
(4) Art. 32, paragraph 1, letter. e), of Presidential Decree no. 380/2001.
(5) Former art. 21-nonies of Law no. 241/1990.