The topic of illegal construction is always at the center of heated debates, especially when it is intertwined with new regulations such as the recent Save Home Decree. In Gragnano, Campania, a pedestrian street illegally transformed into a vehicle road sparked a legal dispute that lasted years.
Despite the demolition orders issued in 2014, the Municipality remained inert, prompting the damaged neighbors to appeal to the Regional Administrative Court (TAR) of Campania, which expressed its opinion with the sentence no. 6650/2024published November 28, 2024.
In the meantime, those responsible for the illegal works have attempted to safeguard the changes made by submitting a request for amnesty in light of the simplifications introduced by the Save Home Decree.
But what happens when the right to legality clashes with new regulatory opportunities? And what responsibilities fall on local administrations?
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The context of the story
The case develops in Gragnano, where a pedestrian street shared by several properties was the subject of illegal transformations. Originally made up of large sloping steps, the avenue was approximately 2.5 meters wide and 40 meters long, a path designed exclusively for pedestrian use.
However, without any authorization, some owners radically modified the area: the steps were eliminated, a layer of asphalt was laid, and iron railings were installed along the edges, transforming it into a driveway.
These abusive works did not go unnoticed. Already in 2014, the Municipal Technical Office had issued two demolition orders, recognizing the irregular nature of the works and ordering the restoration of the original state of the places. The ordinances, confirmed by the administrative justice in previous sentences, were however ignored by those responsible for the works.
Despite the clear violation, the Municipality never activated its sanctioning powers to enforce the provisions, leaving the situation in a state of stalemate for years.
Faced with this inertia, the citizens who had suffered the damage decided to undertake a legal battle, asking the court to force the Municipality to act to eliminate the illegal works and restore legality.
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The appeal and the reasons
In July 2023, the aggrieved citizens filed a formal warning to the Municipalityasking to officially carry out the demolition orders and restore the pedestrian avenue to its original state. The request also included the maximum administrative sanction provided for by Presidential Decree 380/2001 for abusive works, equal to 20,000 eurosto be applied to those responsible for illegal modifications.
However, the Municipality maintained an attitude of inertia, not responding to the request and ignoring its obligation to intervene. This behavior, known as “silence-non-compliance“, violates article 2 of law 241/90, which requires public administrations to conclude administrative procedures with express measures within established deadlines.
Faced with this failure to comply with the rules, the appellants turned to the Regional Administrative Court (TAR), requesting the annulment of the administrative silence and the imposition on the Municipality to fulfill its obligations.
The request also included the possibility of appointing a commissioner ad acta, a figure responsible for acting in place of the administration in the event of further non-compliance.
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The TAR’s decision
The Regional Administrative Court of Campania accepted the appealrecognizing the illegitimacy of the Municipality’s omissive behavior. In the sentence, the judges underlined that the silence-failure constitutes a serious violation of the procedural obligations imposed by law 241/90, reiterating that the administrations have the duty to adopt express measures in response to citizens’ requests.
During the proceeding, it emerged that those responsible for the illegal works had recently submitted a request to ascertain the conformity of the works, leveraging the new provisions introduced by the Salva Casa Decree (DL 69/2024), which simplifies the amnesty procedure for some building interventions.
However, the TAR clarified that this request does not exempt the Municipality from the obligation to conclude the administrative procedure. The requests that arise, in fact, must be evaluated in the context of an express provision that considers both the demolition orders issued in the past and the most recent regulatory changes.
The TAR therefore ordered the Municipality to conclude the procedure within 90 days and, in case of further inaction, appointed a commissioner ad acta responsible for carrying out the decision. The commissioner’s compensation will be paid by the defaulting administration, underlining the seriousness of the municipal inertia.
