The link between false representation of facts and time limits
Administrative jurisprudence has specified, in the interpretation of the art. 21 noniesparagraph 2 bis, that in the case of automatic cancellation of a building permit – including the notification of the start of activity – exceeding the time limit of six months is admissible in cases in which the private entity has represented a pre-existing state different from the real one, as the prior criminal investigation of the falsity of the contents of the notification is not necessary: in fact, in the exercise of the power of self-defense “the actual contribution given by the beneficiary of the provision favorable to his (illegitimate) release cannot fail to be of importance, both if it is ascertained in the criminal court and if it emerges from the documents acquired in the self-defense procedure”(1).
Furthermore, the contrast between the case represented and the real one can be determined either by false statements “the discrepancy of which, if the result of criminally relevant falsification conduct, will have to be subject to definitive criminal investigation, or to a false representation of the facts, which can be relevant even in the absence of a judicial verification of the falsity, provided that this is unequivocally verified by the administration with its own means”(2).
A recent concrete case
In the sentence 4 May 2026, n. 1233, of the TAR Lombardy, Milan, sec. IV, addressed the case of the cancellation of a variant SCIA due to a non-true representation of the state of fact of the places, duly ascertained by the local authority, a circumstance which allowed the latter to exceed the ordinary six-month deadline (in the past, before 18 December 2025, twelve months) for the adoption of self-protection measures.
In the justification for the cancellation it was specified that the works were the object of the SCIA for the construction ex novo of some interventions (“construction of three floors above ground with a non-habitable attic with an average inter-storey height of h. 2.70 cm and simultaneous certification of compliance with the max height limits = 7.50 m”) which, in reality, had already been made at the time the report was filed. And this circumstance was considered a false representation, the subject of a specific report.
According to the judges, once the pre-existence of the works has been ascertained with respect to the presentation of the certified report which should have represented the title for their construction, not only is the existence of a false representation of the state of the places relevant for the purposes of the application of the provision which derogates from the ordinary six-month deadline for the exercise of the power of self-defense confirmed, but also the correctness of the motivation contained in the annulment provision; according to the sentence, in fact, “the derogation referred to in art. 21 nonies of Law no. 241/1990, the time limit within which the administration is allowed to proceed with the automatic annulment or revocation of its measures is provided for, directly and without exception, in the presence of false, mendacious or otherwise untruthful representations that have been provided by the private individual in the context of the procedure for the acquisition or formation of the building permit.”
The time limit beyond which the removal of the act extending the legal sphere of the recipient is prevented applies “only if the behavior of the interested party, during the procedure, has not misled the administration by distorting the factual reality or resulting in an untrue perception of reality or of the existence of the conditions required by law” (see Council of State, Section II, 01.3.2025, n. 29), as the legal system cannot tolerate the distortion of the public interest attributable to the presentation of the interested party.
In the case of false declarations, therefore, the rigid deadline for exercising self-defense powers does not apply and the only limit of “reasonable deadline”, which begins to run from the moment of discovery of the illegitimacy by the administration.
The legal inconfigurability of the SCIA
According to the judges, the fact that the works represented in the project documents had already been built does not only constitute an objective false representation of the state of the places, but is revealed, in even more radical terms, as a reason for “legal inconfigurability” of the report, as the latter does not fall within the abstract regulatory model prefigured by the legislator in consideration of the erroneous legal classification of the case made by the party.
The interested party, in fact, would not have been able to present a SCIA (in the specific case, in variant), since the latter presupposes that the works must still be carried out and constitutes the title for their realization, proving rather necessary to obtain a different title in amnesty for the regularization of works already built in the absence of legitimizing provisions.
In a similar case, jurisprudence has in fact recognized that, where the intervention represented for the purposes of obtaining or forming the qualification is already carried out at the time of presentation of the relevant request or report, these would be devoid of “of the necessary logical-regulatory assumption, i.e. that the intervention had not yet been carried out (…)”, thus excluding the possibility that the passage of time is relevant for the purposes of forming the title(3).
As clarified by the jurisprudence, so that the SCIA “can produce the legal effects typified by the legislator, it must respond to the model outlined by the legislator, it being necessary, among other things, that the activities actually started can be traced back to the abstract cases for which the use of the relevant legal instrument is permitted. (…) By reasoning differently, we would arrive at the elaboration of a typology of implicit provision detached from respect for the principle of legality deducible from the art. 97 Constitution.”(4).
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Notes
(1) Council of State, sec. II, sentence. 3 January 2025, n. 29.
(2) Council of State, sec. V, sent. 12 August 2024, n. 7093.
(3) Council of State, sec. VI, sentence. 8 July 2022, n. 5746.
(4) Council of State, sec. IV, sentence. 13 January 2025, n. 181.
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