SCIA cancellation: a balance between public and private interests is needed

The position of the jurisprudence

The municipal technical office, therefore, cannot limit itself to affirming the illegitimacy of the act but must carry out a necessary and reasoned comparison between the public interest in restoring the violated legality and the interest of the beneficiaries of the administrative measure.

In this sense, the Council of State, section. V, in the sentence. n. 8680 of 2025 stated that «Once the deadline for the exercise of inhibitory powers has expired, the administration can therefore prohibit the carrying out of the activity and order the elimination of the effects already produced only if the conditions for self-protection are concretely met; and, therefore, not only in compliance with the deadline set by the art. 21-nonies and in the existence of a reason for the illegitimacy of the first degree measure, but also after having assessed the conflicting interests and the existence of reasons of concrete public interest (in terms see Council of State, Seventh Section, 27 September 2023, n. 8553)».

Even the Constitutional Court, with its ruling. n. 88/2025, in confirming the constitutional legitimacy of the art. 21-nonies paragraph 1 of law no. 241/1990, reiterated that the automatic cancellation is subordinate to «…presence of specific reasons of public interest that justify the annulment of the “first degree” provision (distinguished from the mere restoration of the violated legality) and the evaluation of the interests of the recipients of the provision (primarily, the trust they placed in it)».

The hypothesis of the absence of comparison between public and private interests

If the annulment provision is characterized by the total absence of any comparison between the public interest and that of the recipient of the provision itself, said provision is illegitimate: this is what was stated by the TAR Lombardia, Milan, section. II, in the sentence. 2 April 2026, n. 1573.

In the specific case, the technical office had limited itself to listing the alleged defects of the SCIA, to conclude purely and simply for its annulment, without adding anything else; nor, according to the judges, is it sufficient to state that the public interest in annulment would be “in re ipsa”, considering that consolidated jurisprudence always requires the comparison in question.

Similarly, the TAR Lazio, Latina, sec. I, in the sentence. 1 March 2026, n. 225, stated that “the managerial determination which, in canceling a SCIA, does not include the slightest consideration of the interests of the recipient, having completely precluded the weighing of private interest and only affirmed the illegitimacy of the report to be canceled is illegitimateAccording to the Lazio judges:

• at the basis of self-defense – even atypical, such as that directed towards a DIA/SCIA, which is not an administrative measure – there cannot be only the mere need to restore the violated legality, considering that, for a building permit to be canceled automatically, it is necessary that there is a concrete and current public interest in its removal, which is different from the mere restoration of the violated legality(1), also having to consider the consolidated subjective legal positions held by the recipients(2);
• the general principles that are applicable in the matter of self-defence annulment of an administrative act are valid, in principle, even in the case in which the subject of review is a building permit, with the consequence that a specific motivation is essential in relation to the existence of “a concrete and current public interest in adopting the withdrawal act, as a public interest cannot be generally considered to exist in re ipsa upon withdrawal of the illegitimate building permit”(3).

Notes

(1) TAR Marche, section. II, sentence. 228/2025: “To exercise the power to officially revoke building permits, the origin of the provision is necessary and the presence of an effective and current public interest in its revocation is necessary, which is not limited to the simple restoration of the violated legality, also considering the subjective legal positions acquired by the recipients.“; Council of State, section VI, sentence 2 July 2024, no. 5830: “The municipal annulment provision based solely on the alleged illegitimacy cannot be considered sufficiently motivated, while in terms of further public interest the annulment is limited to stating “that at the same time there is a concrete and current public interest in the elimination of the act itself”, with a statement whose generic and inconsistency, for the aforementioned purposes, appears evident. The lack of the prerequisites for self-protection therefore, in addition to concerning a significant part of the elements imposed by the principles established by the art. 21 nonies cit., emerges with reference to the generic nature of the reference to the automatism of the general public interest over that of the private, on the basis of a tautological reasoning that collides with the very formulation of the law; the latter in fact requires both the indication of the public interest beyond the mere restoration of legality, and the specific consideration of the interests of the subjects involved. In the present case both assessments are missing: no further public interest is indicated than the mere restoration of legality: no consideration is carried out regarding the necessary adequate assessment of the interests of the subjects involved, especially the recipients.
As a matter of law, the orientation must therefore be applied according to which the self-defense cancellation of a permit under amnesty is illegitimate, where it lacks an express motivation which shows the reasons of concrete and current public interest in the removal and the position of entrustment of the recipients of the act itself (see for example Council of State, section VI, 08/23/2021, n. 6016). Otherwise, judging by this, i.e. without claiming the elements indicated as missing in this case, the withdrawal provision would in no way differ from the provision for denial of a building permit“; TAR Calabria, Reggio Calabria, sentence 29 April 2024, no. 315: “Pursuant to article 21-nonies of law 7 August 1990 n. 241, the exercise of the power of self-defense must be subordinated to the presence of the conditions referred to in the first paragraph, worthy of a rigid interpretation: the existence of reasons of public interest, the exercise within a reasonable period, in any case not exceeding twelve months from the moment of adoption of the measures and the valorisation of the interests of the recipients and other interested parties.
In application of the cited rule, indeed, the automatic cancellation of the building permit necessarily requires an express motivation in relation to the concrete and current public interest in restoring the status quo ante, which takes precedence over the private interest in maintaining the provision, which justifies recourse to the PA’s self-protection power, within a reasonable time, since, even in construction matters, the intention of carrying out a mere abstract restoration of the violated legality is not sufficient. In this regard, on the basis of the premise according to which the specific public interest in the removal of the illegitimate act must be integrated by reasons other than the mere need to restore legality, it has been clarified that the appreciation of the assumption in question cannot even be resolved in the tautological repetition of the interests underlying the regulatory provision, the violation of which has integrated the illegitimacy of the act which is the subject of the self-protection proceeding (see TAR Campania, Naples, section III, ruling of 3 November 2020, no. 4992).
Consequently, it cannot be considered sufficient to identify the public interest in canceling the building permit in the variant “in the superior public interest of respecting the orderly layout of the territory outlined by the urban planning regulations”, thus not recognizing that additional motivation, required by the aforementioned art. 21 nonies and no reference is found either to reasons of public interest, beyond the mere need to restore the violated legality, or to the balancing of public interests with private ones.”
(2) TAR Lazio, Latina, sec. I, heard. 29 May 2023, n. 337.
(3) TAR Lazio, Latina, sec. I, heard. 29 May 2023, n. 337; TAR Campania, Naples, section. VIII, sentence. 13 January 2023, n. 316.