As is known, in urban planning, the recovery plan pursuant to art. 28 of law 5 August 1978, n. 457, concerns not only the physical restoration of individual buildings, but represents a complex operation, on an urban scale, to the extent that, through a coordinated set of interventions, it aims at the revitalization of entire urban areas, characterized by degraded and uncontrolled urbanisation(1).
The recovery plans, in the configuration given to them by the articles. 28 and 30, of law 5 August 1978, n. 457, are urban planning tools for implementation purposes and at a hierarchically subordinate level, to which obligations of building and urban transformation are connected for the owners and for the Municipality and do not, therefore, have a merely programmatic nature; consequently, the state regulations for detailed plans are applicable to them, by express law (2).
The inclusion of a property in a recovery plan therefore determines its subjection to a temporary restriction, as the recovery plans apply, pursuant to art. 28, fourth paragraph, of law 5 August 1978, n. 457, the provisions dictated for the detailed plans, including the one that sets the term of effectiveness at ten years (art. 16 of the law of 17 August 1942, n. 1150)(3).
>> Are you interested in articles like this? Receive them directly
The forecast of the demolition of a building with SCIA renovation in progress
The recent ruling. 26 May 2026, n. 283, of the TAR Abruzzo, Pescara, sec. I, deserves a brief mention because it had as its object a peculiar hypothesis: a recovery plan which envisaged, as the only form of building-urban redevelopment of a building dating back to the end of the 19th century and considered degraded, its demolition, despite the presence of a SCIA for restructuring consolidated before the approval of the plan.
According to the owner, due to this circumstance, the Plan should have taken into account the presence of the SCIA, since it was a question of protecting the legitimate expectations that had arisen, and excluding, for this building, demolition as the only form of redevelopment. The Municipality, in defending its choice, had highlighted that the owner, although aware of the possibility of a possible demolition of the building he owned, had started the works after the approval of the plan itself, with the consequence that there was no trust to protect; moreover, after the start, the works were not completed.
The judges deemed the Municipality’s actions illegitimate, considering that the effects of the SCIA are stabilized at the moment of integration of a complex case constituted by the expiration of the thirty-day period from its presentation and the failure of the Municipality to adopt interdictory measures (and not with the actual start of the works). The works carried out in execution of the SCIA had involved the complete reconstruction of the roof and the structural consolidation of the entire building and had been the subject of certified testing; consequently, the property could no longer be considered to be characterized by a condition of degradation and, therefore, the municipal choice to include the property itself among those subject to demolition was not reasonable and adequately motivated.
The circumstance of the failure to complete all the works agreed with the SCIA was also relevant in the specific case (there had been no redevelopment of the exteriors and interiors of the building): according to the judges, this choice was justified, given the situation of objective uncertainty that characterized the property in question, so that given the approval of the Plan (which contemplated the total demolition of the building) and the litigation that then developed, the decision to complete all the works would have been uneconomical and unreasonable of renovations concerning the property. It was therefore understandable that the precautionary approach followed by the owner, who had decided to interrupt the works pending the resolution of the legal matter, having already incurred huge expenses for the concession fees and for the works already carried out, appeared understandable.
Excess power through misdirection
The sentence also deserves to be highlighted for a further aspect: the judges identified a hypothesis of excess of power due to misuse (not particularly frequent in the case studies of defects in administrative provisions), which occurs when the Public Administration exercises power for purposes other than those provided for by law (4).
In the technical report illustrating the Plan it was acknowledged that the demolition of all the properties in the sector (and therefore also that of the owner who had turned to the administrative judge) was necessary because they would not have been reconstructable “what they were like and where they were“, given the lack of distances required by law. Indeed, this statement proved to be erroneous given that, as clarified by jurisprudence, the provision of art. 9 n. 2 of Ministerial Decree n. 1444/1968 concerns “new buildings“, meaning buildings (or parts and/or additions thereof (5)) “built for the first time” and not pre-existing buildings, for which, during reconstruction, it would not make sense to prescribe different distances(6).
The choice made by the Municipality therefore appeared to be tainted by a fundamental error, as the redevelopment of the area could well have been ensured through the building renovation of the dilapidated buildings within the limits of their original consistency. Otherwise, the demolition of all the buildings and the consequent construction of a single five-storey building, to replace the pre-existing ones, made clear the deviation from the typical cause of the recovery plan which is to recover and rationalize the existing building heritage and not to radically transform the urban fabric (especially when there is a historic property at stake, as in this specific case).
The judges, therefore, accepted the owner’s thesis according to which the Plan did not actually pursue a public interest, but rather a private interest, aimed at allowing the other properties in the sector to achieve greater economic convenience, which went beyond the limits of the pre-existing building consistency, thus compressing the rights of a private individual to the exclusive advantage of other private individuals.
>> If you want to receive news like this directly on your smartphone, subscribe to our new Telegram channel!
Notes
(1) Council of Justice Adm. for the Sicilian Region, sentence. 1 March 2016, n. 66.
(2) TAR Lombardy. Milan, section. II, sentence. 9 November 2012, n. 2730; TAR Campania, Salerno, section. II, sentence. 30 July 2012, n. 1542.
(3) Cassation civ., sec. II, 6 November 2013, n. 25021.
(4) See TAR Tuscany, section. I, heard. n. 535/2016, according to which this defect “translates into the effective and proven divergence between the act and its typical function, or in the exercise of power for purposes other than those enunciated by the legislator with the rule attributing the same (Cons. Stato, section VI, 3 July 2014, n. 3355; TAR Lazio Section II, 25 June 2012, n. 5785)”.
(5) Council of State, sec. IV, sentence. 4 August 2016, n. 3522.
(6) Council of State, sec. IV, sentence. 14 September 2017, n. 4337.
Thank you for subscribing to the newsletter.
