The recent sentence no. 5541/2024 of the Campania TAR brings the age-old issue of building abuses and their regularization through the urban planning conformity assessment procedure back to the center of the debate.
In a constantly evolving legal context, the “Save Home Decree” introduced important changes to the double compliance rules provided for by the Consolidated Construction Law (Presidential Decree 380/2001). In fact, the decree provides for a simplified amnesty for specific categories of irregularities, simplifying the process for obtaining a building permit or a SCIA in amnesty.
However, the most serious works, such as those carried out without building permits in restricted areas, continue to remain excluded and subject to the “old” double compliance.
What implications does this ruling have? How do the innovations of the Save Home Decree combine with the principles reaffirmed by the TAR?
Let’s examine the case and the regulatory framework in detail.
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The disputed works and the opposition of the owners
The works subject to the ruling concern a series of building interventions deemed illegal by the Municipality of San Lorenzello, since they were carried out without qualification. Specifically, an expansion of the main building was contested, a structure that modified the volume of the original building. Added to this is the creation of a “L” shaped canopy with the function of a garage-storage, built with wooden pillars and a sloping roof, also made of wood and finished with a covering of tiles, characterized by significant dimensions.
Another central element is the pool built inside the property, complete with an adjacent wall structure intended for services such as showers and toilets. This work had a significant weight in the evaluation of the TAR for the increase in surface area and the transformation of the original structure of the area.
Finally, the presence of one was contested masonry structure used as a tavern, which is of such dimensions that it cannot be considered an accessory work of modest size.
The municipal administration therefore considered these interventions overall as significant building abusesnoting both an unauthorized volumetric increase and the change in the intended use of the property, in contrast with the current urban planning and landscape regulations.
According to what was found during the inspection, the works not only altered the state of the places, but were carried out without any title certifying their conformity.
The appellant has challenged the demolition order issued by the Municipality, contesting its legitimacy on various fronts. In particular, he claimed that the disputed works had been partly created by previous owners before the affixing of the landscape restriction and which, to the extent of its competence, was concerned minor or pertinent interventionsfor which a building permit would not have been required.
Furthermore, the appellant filed a motion to assessment of urban planning compliance pursuant to article 36 of Presidential Decree 380/2001, but the silence of the Administration led to the formation of a tacit denialwhich is also the subject of an appeal in the proceedings.
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The decision of the Campania TAR
The TAR Campaniawith sentence no. 5541/2024, rejected the appeal presented against the order for the demolition of the illegal works. The decision is based on a rigorous application of urban planning and landscape regulations, reiterating some consolidated principles in construction matters.
First, the Court clarified that i repressive measures against building abuseslike demolition orders, do not require communication of the start of the administrative procedure. Being acts boundbased on a mere technical assessment of the consistency of the works and their illegality, a specific weighing of interests other than public ones is not necessary, nor an additional motivation beyond the simple qualification of the abuse.
Another central point concerns the question of landscape constraint. The appellant had argued that the works had been carried out before the establishment of the restriction. However, the TAR rejected this theory, underlining that, in the absence of certain and documentary evidence on the date of implementation of the interventions, the Administration legitimately applied the regulations in force at the time of the dispute.
The principle of presumption of abusiveness finds full application when the private individual is unable to provide clear and incontrovertible elements.
The ruling also addressed the issue of urban planning compatibility of the works carried out, highlighting that the disputed interventions were incompatible with agricultural use of the area in which the property is located. According to the TAR, the works could not be considered as “building appurtenances” or minor abuses, as they are autonomous and functional to residential needs, with a significant impact on the overall volume.
Finally, the TAR also rejected the part of the appeal relating to silence-denial trained on the request for conformity assessment pursuant to art. 36 of Presidential Decree 380/2001.
The decision aligns with consolidated jurisprudence, reiterating that the amnesty procedure requires the double compliance urban planning: the works must comply with both the legislation in force at the time of construction and that in force at the time of the request. In this case, the pre-existing landscape restriction effectively prevented the possibility of obtaining the amnesty.
The TAR ruling therefore represents a clear reaffirmation of the protection of the urban and landscape structure of the territoryestablishing that abusive interventions of this scale cannot benefit from amnesties and remain subject to demolition.
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The innovations introduced by the Save Home Decree and the assessment of conformity
The sentence of the TAR Campania n. 5541/2024 offers the opportunity to delve deeper into the innovations introduced by Save Home Decree, which significantly changed the process building compliance assessment.
One of the key aspects of the new decree concerns the possibility of accessing a simplified amnesty for three specific categories of irregularities: le partial discrepanciesthe works carried out in the absence of a simple SCIA and the essential variations.
This simplified amnesty represents an important relief compared to the previous system, especially for interventions modest entitymaking it possible to remedy situations that until now were forced to fall into the more complex double compliance procedure.
However, the Save Home Decree does not extend this simplification to serious abusesuch as works carried out without a building permit, especially if insistent restricted areas. In these cases, article 36 of Presidential Decree 380/2001 remains applicable, which requires a stringent verification of the double compliance: the interventions must comply with both the urban planning and landscape regulations in force at the time of implementation, and those in force at the time of the amnesty request.
In the case of the ruling in question, the contested works are placed precisely within this rigid regulatory framework. Since these are interventions of significant importance carried out without a title in an area subject to landscape restrictions, the possibility of applying the simplified amnesty introduced by the Salva Casa Decree is excluded.
The decree, in fact, while opening up more streamlined solutions for some types of abuse, does not intervene on environmental and landscape protection constraints, which continue to represent an insurmountable limit in the absence of the necessary authorizations.
