In the world of construction, one of the most delicate and often misunderstood themes is that of silence-assentthat is, the possibility that an authorization will form automatically if the administration does not respond within a certain term. It is an institution provided for by article 20 of Presidential Decree 380/2001, designed to speed up bureaucratic procedures in the urban field and guarantee greater certainty to citizens.
But what happens when the property subject to the request is in an area subjected to landscape or environmental? Is it still possible to obtain a construction title for silence-assent? What if the Municipality remains silent, is the right to build or change intended use really acquired?
A recent sentence of the Council of State has clarified this point, offering an important starting point for reflection for professionals, technicians and municipal administrations. Do you want to know what was decided? And what are the practical implications for those who design in tied areas?
Advertisement – Advertising
The case: the request for the intended use of use in the bound area
The heart of the story concerns a building request presented for a small rural buildinglocated in a hilly area with a strong agricultural and landscape vocation. The modest size building (about 51 square meters) was formally surveyed as agricultural deposit. The property, interested in transforming it into one civilianhas decided to start the administrative procedure for the change of intended use without the creation of construction works.
Initially, the company opted for an alternative trail to the building permit, trusting in the simplicity of the intervention. However, the Municipality considered this simplified procedure not applicable, formally requesting the presentation of a request for building permit, considered more consistent with the nature of the intervention and with the urban planning rules of the area.
The official request was filed in March 2022accompanied by all the necessary documentation. From that moment, however, The Administration has not adopted any provision within the terms provided for by lawthat is 90 days. No request for integration, no rejection notice, not even an act of formal refusal.
A situation that brought the property to invoke the intervening of the silence-consentpursuant to article 20 of Presidential Decree 380/2001, modified by Legislative Decree 70/2011 to encourage administrative simplification.
The Municipality reacted only subsequently, in January 2024, with a provision that denied the formation of silence-assentclaiming that the request was in contrast with the urban planning regulations in force and that, being the property in the bound area, this mechanism could not in any case operate.
At this point, the dispute was born: the company has decided to resort to the TAR, believing that, in terms of the law, the building permit should be considered tacitly formedregardless of the city’s urban assessments.
Advertisement – Advertising
The first victory at the TAR: is the silence-assent valid even in the event of constraints?
In the first instance of judgment, the regional administrative court had accepted the appeal of the company, considering the principle according to which, even in the presence of possible urban planning difficulties, The silence-assent can still form if the administration does not express itself in the times provided by law.
According to the TAR, the current legislation – in particular article 20 of Presidential Decree 380/2001, in its updated version – has the purpose of protect the citizen’s interest to obtain certain and quick answers from the public administration. In this perspective, the failure to respond within 90 days should have determined the tacit training of the building permit.
The administrative judge also recalled some previous jurisprudentials of the Council of State (such as sentence no. 5746/2022), who had stated that Urban compliance is not a condition to prevent the formation of silence-assentbut it may possibly be subject to cancellation of the administration, in compliance with the rules of self -protection.
Even more interesting is the passage in which the TAR deemed the landscape bond not automatically impeding to the formation of silence-assent. A bold reading, which has restricted the exceptions provided for by the standard in a restrictive way, in an attempt to avoid a dilated use of the “procedural blocks” by the Municipalities.
The judge’s message seemed clear: A generic reference to the constraints is not enough to prevent the formation of the building title for silenceotherwise the spirit of simplification is emptied of meaning.
A decision that had given the applicant company to hope, but that would then be overturned on appeal.
Advertisement – Advertising
The Council of State overturns everything: in the presence of constraints, silence-assent is not formed
The turning point comes with the sentence no. 2513 of 2025 of the Council of State – Fourth Section – which, accepting the appeal of the Municipality, has fully reformed the TAR decisionclarifying a fundamental principle: The silence-assent cannot be formed when the building intervention falls in areas subject to landscape or environmental constraints.
In particular, the Board recalled theArticle 20, paragraph 8, of Presidential Decree 380/2001which expressly excludes the possibility of silence-assent “in cases where environmental, landscape or cultural constraints exist” if the prior favorable opinion of the competent authorities is missing.
In the case in question, the property was inside the territory protected by the territorial urban plan of the Sorrentino-Amalfi area and in the classified area as “Tra5” of the municipal urban planwith agricultural destination and strictly regulated functions.
According to the judges, the change of intended use from agricultural deposit to ordinary residence was does not comply with the technical implementation standards (articles 13 and 18 of the PUC)which allow it only if the residential destination is pre -existing or if tied in a functional and demonstrable way to agricultural activity. In the specific case, both requirements were missing: nor was there a previous residential destination, nor was a connection with agricultural activities in progress was documented.
In addition, the sentence highlights a crucial point: the Municipality, on April 23, 2024had issued a explicit refusal measure (Prot. No. 2898), motivated and based on landscape constraints and on urban non -compliance. This act has not been challenged by the company And, as the Council points out, “has produced a definitive impediment to the formation of silence-assent”, consolidating itself in the legal sphere of the recipient for failure to protest.
Finally, the college rejected as “irrelevant and erroneous“The appeal of the TAR to the previous sentence no. 9969/2023, clarifying that in that case the bond had already been removed through landscape authorization. In today’s case, however, No authorization had been requested or grantedmaking any tacit mechanism of consent inapplicable.
