Article 36-bis which redefines the discrepancies
Among them newly introduced items in the consolidated text by Salva-Casa what the more it affects building conformity assessment procedures, il 36-biswhich takes the place of the previous one art. 37 paragraph 4 and expands both its sphere of competence and its functions, becoming in fact an article “catches (almost) everything” within the scope of ordinary amnesties.
THE’art. 36-bis today it extends its influence skills above everything that the norm defines “partial discrepancies” until all of them are included “essential variations”: for those who are not familiar with these terms with which we will have to begin to get in touch more carefully in the future, we can very briefly say that the 36-bis today it can be used for ascertain the conformity of everything that has not been carried out in the absence of title or in total variationthat is, the discrepancies that still remain the responsibility of theart. 36.
The “partial discrepancies” in fact, always summarizing, they are all of those differences between actual implementation and project That they are not manufacturing tolerances (which by definition ofart. 34-bis they must not be the subject of an amnesty regardlessas they are “tolerated”) and which do not go beyond the scope of the essential variations referred to inart. 32, while the latter, also included in the 36-biscontain a broad definition of discrepancies which also include significant changes in use and works that can also be assimilated to building renovation, as well as important changes to the project such as variation of the site area. Therefore being able toart. 36-bis manage discrepancies between these two categories, the breadth of his administrative competence is demonstrated. In this article we leave aside the issue, also complex, relating to the fact that theart. 32 delegated to the individual regions to define the essential variations in detail, so that theart. 36-bis to date it is applicable in a differentiated way, depending on how each region has transposed and applied the rule.
Meanwhile, an aspect that I always want to underline should be highlighted: theart. 36-bis referring to definitions of discrepancies (the essential variations and partial differences, in fact) has the way in which building requests were conceived was overturned before these innovations, since before the Salva-Casa the building title in amnesty, except in particular cases, remained connected to the definition of the building intervention that it had to manage (for example the SCIA in conformity assessment art. 37 paragraph 4 presented for works which, if they were to be done, would have required the same title), whereas today such a relationship no longer exists and the title in the assessment of conformity follows the definitions of the offences: this can create confusion but all in all it is also a question of a simplification, fortunately also due to the fact that during the conversion into law of the decree it was added, among the competences ofart. 36-bisalso the management of essential variationswhich has objectively expanded its competence as we are discussing it today.
The further peculiarity of the 36-bisand which derives precisely from the fact that it is as said by now detached from the definitions of building interventionsis that pursuant to this article both SCIAs and permits can be presented. However, at first reading the rule it may not appear clear when to use one or the other or whether it is an option chosen by the applicant: this article is focused precisely on this aspect. As we will see, however, in part we end up returning (almost) to the origin since, although this is not expressly clarified by the law, it appears to be implicit that the choice of the form of the building permit cannot fail to be consistent with what it should be used where new works such as those found to be non-compliant were carried out.
However, it must be said, before delving into commenting on the rule on the specific aspect of choice between SCIA and Perfettothat those exposed here are hypotheses built on the basis of logic and coherence: however the rule does not explicitly indicate when to opt for one or the other choice nor is it expressly clarified elsewhere what the logic behind the assessments is, so consider that what is said here could subsequently be contradicted, for example by the imminent publication of the ministerial guidelines for the application of the Save-Home decree.
The writer first of all believes that it is from discard the hypothesis of the previous paragraph according to which it can be one free option of choice it is up to the interested party to decide whether to present the title in one form rather than another: SCIA and permit follow an application logic and it is indeed necessary to pay great attention to when to present one or the other. So in the meantime, let’s clear away the hypothesis that it is an optional choice.
How to orient yourself between SCIA and permit?
How to orient yourself between SCIA and permit, then? In the opinion of the writer the choice must follow the definition of building interventionunless it is a case expressly cataloged by the law. For example, the paragraph 2 of 36-bis says that in the event that conformation works must be carried out, i.e. building works that allow for bring the property into a legitimate state (the famous “conditional amnesty” which did not exist before and had actually almost always been considered “impossible” by administrative justice), it is necessary to present a request for permission: therefore in this case it appears clear that it is not possible to present a SCIA when there are works to be done; however, the idea that the principle of silent consent could exist in any case, the institution of which is also foreseen in some cases for the “ordinary” building permit, therefore the thing would not be strange.
Apart from the specific case described in the previous paragraph, in other cases it seems possible to support the hypothesis that between SCIA and permission the choice must fall according to the type of building work which must be carried out for compliance assessment, and it can help to do one on this point diagramremembering that the definitions of non-conformity on which the application of theart. 36-bis I am theart. 34 which contains the definition of partial discrepanciesand The 32 which contains those of the essential variations:
- partial discrepancies (art. 34) of which it is possible to ascertain the execution during construction and which exceed the boundaries of the construction tolerances but are not so serious as to encroach on the total variations: they can be understood as “lack of variant SCIA” pursuant to art. 22 paragraph 2-bis, therefore it is logical that they can be remedied through a SCIA;
- partial discrepancies (art. 34) whose date back to the time of the building’s construction cannot be ascertained or which is in any case ascertained that these are works carried out subsequent to the original construction: they can be classified as works carried out in their own right in the absence of a title. in this case, we proceed in SCIA art. 36-bis because in fact it coincides with the first point of this list, unless it is the specific and specific case of works carried out in the absence of CILA and in this case it is believed that a late CILA can be filed, therefore pursuant to theart. 6-bis and not of 36-bis. Attention: in the opinion of the writer, if the discrepancies date back to the original construction and were carried out as variations, even if these are works which, if done from scratch, could fall within the CILA’s jurisdiction, in reality it is still necessary submit a SCIA pursuant to theart. 36-bis;
- changes in use which do not fall within the categories of essential variations (therefore without an increase in the standards of the DM 1444/68: be careful, “non-relevant changes” are not the same thing): SCIA art. 36-bis even if abstractly they could also fall into the cases of late CILA, where punctually applicable according to what was said in the previous point;
- essential variations (art. 32) whose execution can be ascertained during construction: theart. 36-bis expressly indicates that such discrepancies can be managed within its sphere of competence and, since these are works that could not be the subject of SCIA in variation during construction (except for specific verification, but these are specific and residual cases), it is believed they should be managed through the PdC in art. 36-bis (therefore with silent consent of 45 days), provided that they are not works that contextually or incidentally fall among those referred to in the art. 10, in which case the submission of a request for assessment of conformity pursuant toart. 36therefore outside the jurisdiction of theart. 36-bis.
Therefore it was said that, simplifying, everything that does not fall within the sphere of competence of theart. 36-bis continues to be managed through the procedure ofart. 36 which remains more severe than the 36-bis as it still contemplates the concept of “complete” double conformity (instead of asymmetric conformity as introduced byart. 36-bis) And mechanism of silence-denial (instead of silent consent expressly introduced byart. 36-bis for the procedures within its competence). The interventions that fall under art. 36 and for which it results it makes no difference to submit an application for permit or alternative SCIA (since there is still silence-rejection) can be simplified as follows:
- essential variations (art. 32) which fall within the definitions ofart. 10or works subject to a building permit, such as significant changes in use when carried out on properties that fall within a type A homogeneous territorial area rather than changes to the elevation in a restricted area;
- works in general carried out after the completion of construction and which would have required the prior issuing of a building permit;
- total changes (art. 31) performed during constructionas works that would have required a new building permit.
The right to choose the building permit has been modified
As a final side note, but still in the theme, it can be noted that, “incidentally”, it was a previous “right” to choose the building title has also been modified: the Salva-Casa in fact modifies the wording of theart. 37 paragraph 6making in fact no longer optional the choice to be able to present an application pursuant to theart. 36 even in the presence of discrepancies or abuses that could have been managed with the previous one art. 37 paragraph 4.
The choice was originally consistent with what the law still providesart. 22 paragraph 7 regarding the fact that it is possible to opt for the permit request even in the case in which works for which the SCIA is sufficient are to be carried out, while instead as formulated now, the paragraph 6 of the art. 37 provides only a general reference to theart. 36-bis in which, however, There is no possibility of “choosing” the building titleas seen in the discussion of this article.
Probably, the legislator considered that there was no longer any material interest in choosing between a conformity assessment permit and SCIA if filed in both cases pursuant to theart. 36-bis in as for both there is the institution of silent consent.
