As is known, art. 16, paragraph 1, of the Consolidated Building Act (Presidential Decree 380/2001) establishes that the issuing of the building permit involves the payment of a contribution commensurate with the incidence of urbanization costs as well as the cost of construction.
The jurisprudence(1) has clarified that the obligation to pay the aforementioned contribution is not justified by the issuing of the building permit but by the activity of transformation of the territory resulting from it; this link is evident:
- in the component of urbanization charges, aimed at financing (albeit in a non-synallagmatic sense) the surplus of urbanization works that the municipal administration is required to undertake in relation to the new building intervention of the applicant for the building permit;
- in the construction cost component, correlated to the increase in wealth of the owner resulting from the exploitation of the territory.
The general rule of obligation to repay the contribution in the event of failure or partial construction
From what has been observed so far, a general rule follows, recently reiterated by the Regional Administrative Court of Lombardy, Milan, section. II, in the sentence. 7 November 2025, n. 3613: if the transformation activity does not take place, the payment becomes without cause and the related sums must, therefore, be returned pursuant to art. 2033 cod. civil (rule that regulates objective undue debt, according to which “Anyone who has made an unnecessary payment has the right to recover what they have paid. He is also entitled to fruits and interests from the day of payment, if the person who received it was in bad faith, or, if he was in good faith, from the day of the request.”).
Even the only partial use of the issued building permit entails the owner’s right to redetermination of the construction contribution and the repayment of the portion of it calculated with reference to the unbuilt portion and, consequently, the mirror obligation on the part of the administration to provide for the repayment of the sums already received for this purpose (2).
On the amount to be returned (total or partial, due to the absence of construction or partial construction), taking into account the good faith of the Municipality, legal interest is due starting from the request (or from the date of adoption of the forfeiture provision(3)) but not the monetary revaluation(4). The right to restitution is subject to the ordinary ten-year limitation period(5).
Exception to the general rule
The rule just mentioned is, however, subject to an exception in the case in which the issuing of the building permit and the consequent payment of the construction contribution are carried out in execution of an urban planning agreement, given that, in this hypothesis, the financial performance is the cause in the agreement. The commitments undertaken in an agreement – contrary to what occurs in the case of the release of a single building permit, in which the urbanization and construction costs borne by the recipient are linked to the specific transformation of the territory covered by the permit – must not, in fact, be considered in isolation, but must be compared to the overall profitability of the operation, which constitutes the real parameter for evaluating the balance of the synallagma underlying the agreement (6).
In this regard, it is noted that the administrations, by signing the agreement, also assume obligations (such as allowing the transformation of large areas of their territory and carrying out the related urbanization works), trusting in the possibility of using the amounts that the private individual undertakes to pay in that context to carry out the interventions deemed necessary to ensure rational territorial development. If the private individual were allowed to freely release himself from his obligation, the trust of the administration that arose with the signing of the urban planning agreement would therefore be unfairly undermined.
These conclusions are valid both in the cases in which the agreement is still fully or partially implementable, even in a different way compared to the originally planned intervention, and in those in which the intervention will never be implemented and, therefore, independently of the actual transformation of the territory.
More in detail, according to the Council of State(7), in the case of an urban planning agreement, which contains commitments freely assumed by the parties, it is necessary to distinguish:
- undoubtedly there is an objective undue amount, and the sums paid must be returned, when the title, represented here by the agreement, has never come into existence in the legal world, or is affected by nullity, or even when its effectiveness has ceased retroactively, as in cases of annulment, resolution or rescission, because the justification for the transfer no longer exists;
- when, however, the title is effective and is not declared null, nor is it canceled or resolved or rescissed, the institution of objective undue debt (and, therefore, the obligation of restitution on the part of the Municipality) does not, in principle, apply(8).
Notes
(1) Former multis: TAR Emilia-Romagna, Bologna, sec. II, sentence. 22 January 2025, n. 66; TAR Lombardy, Milan, section. IV, sentence. 16 May 2025, n. 1672 and the jurisprudential references referred to therein; TAR Sicily, Catania, section. II, sentence. 27 January 2017, n. 189.
(2) Council of State, sec. IV, sentence. 21 May 2024, n. 4510; section II, sentence. 15 June 2021, n. 4633; TAR Emilia-Romagna, Bologna, sec. II, sentence. 22 January 2025, n. 66; TAR Abruzzo, Pescara, section. I, heard. 3 June 2022, n. 219; TAR Umbria, section. I, heard. 9 September 2022, n. 696.
(3) TAR Emilia-Romagna, Bologna, sec. II, sentence. 21 August 2023, n. 497.
(4) TAR Piedmont, section. II, sentence. 29 May 2024, n. 580.
(5) TAR Emilia-Romagna, Bologna, sec. II, sentence. 5 February 2024, n. 88.
(6) Council of State, sec. IV, sentence. 4 October 2019, n. 6668; sent. 15 February 2019, n. 1069; TAR Lombardy, Milan, section. II, sentence. 14 May 2024, n. 1442.
(7) Council of State, sec. IV, sentence. 14 April 2025, n. 3175.
(8) Council of State, sec. IV, sentence. 3 August 2020, n. 4892.
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