The motivation behind the decisions taken
The exercise of this power (called pure inhibitory power) does not require a particular motivation, as the administration must limit itself to explaining the reasons why it believes there is a conflict between the SCIA and the current legislation. The 30-day deadline is therefore set to protect the whistleblower’s trust and is therefore peremptory.
After the expiry of the 30-day deadline in the case of the construction SCIA, the administration can still intervene to inhibit the continuation of the reported activity deemed illegitimate, however exercising a different power, similar to the power of self-defense provided by the art. 21-nonies of law no. 241 of 1990, of which it shares the assumptions. In this case therefore, the administration itself, in the justification of the act, cannot limit itself to giving an account of the conflict between the reported activity and the current legislation but, after having carried out a comparison between public interest and private interest, must illustrate the superior reasons of public interest, other than those of the mere inhibition of the activity deemed illegitimate, which lead it to intervene.
The case of conditional SCIA
The art. 23-bis of Presidential Decree 380 of 2001 regulates the possibility of SCIA conditioned on obtaining preliminary authorizations. The second paragraph of this article provides that, in case of presentation of a conditional SCIA, the interested party can start the work only after the one-stop shop has communicated the acquisition of the necessary prior consent documents.
In the absence of the prior authorization act, the conditional SCIA is ineffective, with consequent non-applicability of the deadline set at thirty days within which the administration should exercise the inhibitory power attributed to it by law. Therefore, if the private individual carries out the work without prior authorisation, the activity must be classified as illegal and the administration can intervene at any time pursuant to the art. 21, paragraph 2-bis, of law no. 241 of 1990(1).
On the contrary, from the moment of issuing the prior authorization, the conditional SCIA becomes effective and, from this moment, the administration can intervene with the inhibitory power within 30 days(2) or with the power of cancellation within 12 months.
A specific case
The sentiment. 3 October 2025, n. 3063, of the TAR Lombardia, Milan, sec. II, addressed an interesting concrete case. Specifically, the interested party had filed, on 23 January 2023, a building SCIA conditioned on the issuing of prior consent documents, i.e. the opinion of the Fire Brigade and the opinion of the landscape commission. These documents were issued, respectively, on 28 April 2023 and on 26 October 2023 and on this last date the aforementioned SCIA had become effective, with the consequence that, from that day, the technical office could have exercised the injunction in the following 30 days or the cancellation in the following 12 months.
Subsequent to the original filing, the interested party had submitted:
- on 31 January 2024, a supplementary/replacement project aimed at implementing the indications contained in the favorable opinion released in the meantime by the landscape commission;
- on 18 July 2024, a new supplementary/replacement project, this time aimed at incorporating the findings contained in the rejection notice sent by the Municipality on 20 June 2024.
With a provision dated 16 September 2024, the Municipality had communicated the negative conclusion of the proceedings concerning the SCIA, therefore definitively inhibiting the implementation of the intervention. Considering the final date of 18 July 2024 and noting that the injunction was adopted on 16 September 2024, the lateness of this provision is evident, having been adopted after the 30-day deadline set by the art. 19, paragraph 6-bis, of Law no. 241/1990.
The measure that could be adopted, however, remained that of cancellation, for which the deadline is 12 months(3), acknowledging the existence of reasons of public interest and taking into account the interests of the recipients and other interested parties.
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Notes
(1) Council of State, sec. II, sentence. 30 October 2024, n. 866; sent. 28 October 2024, n. 8591; TAR Puglia, Lecce, section. I, heard. 30 December 2024, n.1452.
(2) “The jurisprudence interprets the aforementioned regulatory provision rigorously, in the sense that the expiry of the thirty-day deadline for the exercise of the interdictory power regarding the works covered by SCIA entails the definitive consummation of the power itself and the consolidation of the subjective situation of the reporting party, leaving the Administration with the sole power of self-protection, to be exercised in compliance with the legal requirements”: TAR Lombardia, Brescia, section II, sentence 28 July 2025, no. 724
(3) “The time limit of 12 months for the exercise of automatic annulment applies if the behavior of the private individual, during the process of drafting the first instance document, has not led the Administration into error, “distorting the factual reality or determining an untrue perception of reality or of the existence of the conditions required by law”. Otherwise, or when the Administration has erroneously decided to issue the provision, also due to the behavior of the private individual, the time limit referred to in paragraph 1 of the art. does not apply. 21 nonies ln 241/1990, as the law cannot tolerate “the distortion of the public interest attributable to the presentation of the interested party” (see, State Council, Section II, 22 November 2021 n. 7817; Section IV, 17 May 2019 n. 3192).
It follows, therefore, that exceeding the 12-month deadline for the adoption of the official cancellation provision is admissible, regardless of the criminal investigation of a procedural nature, when the subject has represented to the Administration a pre-existing state different from the real one or has failed to present relevant circumstances”: Council of State, section IV, sentence 4 August 2025, no. 6891.
In collaboration with studiolegalepetrulli.it
