General rule, recently reiterated
And in fact, the TAR Lombardy, Milan, section. IV, in the sentence. 9 April 2024, n. 1048stated that “The principle according to which the sums given for the realization of a construction activity, being strictly connected to the concrete exercise of the right to build, is shared in jurisprudence, are not due in case of renunciation or non-use of the building permit (with specific regard to the monetization of standards, see TAR Lombardia, Milan, II, 15 December 2017, n. 2396). In fact, “if the private you give up or do not use the building permit is the responsibility of the administration, pursuant to art. 2033 cod. civil, theobligation to repay the sums paid as a contribution towards urbanization costs and construction costs as well as, consequently, the private individual's right to demand repayment; with the clarification that the right to reimbursement arises not only in the case in which the failure to carry out the works is total, but also where the building permit has only been partially used” (TAR Lombardia, Milan, IV, 22 January 2024, n. 160; II, 7 January 2016, n. 4633; ; TAR Lombardy, Milan, II, 23 July 2020, n. 1418; TAR Lombardy, II, 2 May 2019, TAR Puglia, III, 3 April 2018, TAR , II, 1 March 2017; no. 496; TAR Sicily, II, 27 January 2017; this principle, as already underlined, is also applicable to imposed services similar to the construction contributionsuch as monetization in lieu of the transfer of standard areas”.
Objective undue debt in the case of public law agreements
The general rule suffers an important one exceptionas recently recalled by TAR Lombardy, Milan, section. II, in the sentence. 14 May 2024, n. 1442, in the case of urban planning agreements. The Milanese judges observed that, according to jurisprudence(1), in relation to genus of the public law convention, of which urban planning represents one speciescivil principles are applicable within the limits of compatibility, as the conventions – similarly to contracts and legal negotiations under private law – are based on agreement and the exchange of consent.
There ratio juris of the objective undue debt (art. 2033 cc) is that of refund of what was unduly received, because it was objectively not due. The institution therefore applies only to the extent that the lack of title to the bond is ascertained, which typically happens:
- when the title it never came into existence in the legal world;
- when the title is affected by nullity;
- when the effectiveness of the title has retroactively ceased (e.g. due to annulmentOf resolution you hate termination), taking with it the justification for the transfer.
In such cases, the performance must be repeated to the same extent as it was performed.
The (non)restitution in the case of urban planning agreements
Instead, when the conventional title exists and is effective and is not declared null, nor is it annulled, terminated or rescissed, the institution of objective undue payment cannot be applied in relation to the case of the urban planning agreement, because the financial performance finds the cause of the obligation in the agreement (2). This applies – it has been specified – 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(3), and in those in which the intervention will never be implemented and , therefore, independently of the actual transformation of the territory(4).
Let us briefly mention: main logical-argumentative junctions highlighted by jurisprudence(5):
- The commitments undertaken in the agreement – contrary to what occurs in the case of issuing 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, with the consequence that where, in whole or in part part, the construction does not take place, an undue payment may arise, giving rise to a restitution obligation – they should not be considered in isolationbut they 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 and, therefore, the substantial lawfulness of the commitments undertaken;
- the cause of the urban planning agreement, i.e. the interest that the contractual operation is aimed at satisfying, in particular, must be assessed not with reference to the individual commitments undertaken, but with regard to the objective economic-social function of the agreementin which both the interests of the private sector and those of the public administration must find balanced satisfaction;
- it is not at all excluded from the system that an operator, in the urban planning agreement, can assume charges even greater than those abstractly foreseen by lawbeing one free entrepreneurial choice (or, even, of a free choice aimed at the well-being of the local community), falling within ordinary private autonomy, not in itself conflicting with mandatory rules.
The specific case
In the case examined by the Milanese judges in the sentence. n. 1442/2024, a contract had been signed between a private individual and the Municipality agreement concerning a detailed plan covering six sectors and which envisaged – including them in the three-year plan for the implementation of public works – theurbanization of these areasfirst of all with the necessary road connections. As a result of the agreement accessing the plan, the private areas had been made buildable with a total achievable volume of 6,033.60 residential m3.
By signing the agreement, the private owner assumed theobligation to pay the economic values relating to the urbanization works to be carried out; however, subsequently, the private owner of the areas had then unilaterally decided not to fully proceed with the building project.
According to the judges, neither the private individual's decision not to request building permits during the validity of the agreement, nor the expiry of the agreement were suitable situations to determine the repeatability, by the private individual, of the services carried out in fulfillment of the contractual obligations undertaken in the context of the agreement, also considering that no breach by the Municipality had been alleged by the private party. In other words, the justification for the transfer had not ceasedwhich it related both to the completion of the urbanization works and to the fact that the private individual had benefited from the substantial benefitduring the period of effectiveness of the agreement, in the attribution of building potential to the areas it owns and the urbanization of the owned area.
Note
(1) Former multis, Council of State, sec. IV, sentence. 15 October 2019, n. 7020; sent. 4 October 2019, n. 6668.
(2) Council of State, sec. IV, sentence. 4 October 2019, n. 6668, which in turn cites sentences no. 1069/2019; n. 5603/2013; n. 6339/2018; even more recent, heard. n. 4892/2020.
(3) This is the case examined by sentences no. 6668/2019 and n. 1069/2019.
(4) This is the case examined by sentence no. 6339/2018 and n. 4892/2020.
(5) See, ex multis, Council of State, sec. IV, sentence. 6 October 2020, n. 5878; sent. March 30, 2021, n. 2666; section IV, sentence. 4 April 2023, n. 3496; TAR Lombardy, Milan, section. IV, sentence. 12 December 2022, n. 2735.
