Only certain and documentary evidence
The current paragraph 1-bis of article 9-bis of Presidential Decree 380/2001 provides that the legitimate state for the properties made in the period in which it was not mandatory to acquire the building qualification title can be deduced from the cadastral information of the first system or from other probative documents: photographic filming, cartographic extracts, archival documents, another public or private act which the origin is demonstrated, and by the qualification that has regulated the end of the intervention. Building that affected the entire property or real estate unit, integrated with any subsequent securities that have enabled partial interventions. For the Council of State, however, one of these elements cannot be completely missing to certify the legitimacy of the artifact, and and other administrative acts cannot be recalled to justify the lawfulness of the construction and subsequent interventions carried out.
From Studio to Officina without authorizations
The case addressed in the sentence concerns a shed used as a mechanical workshop and a bar in the ground raised compared to the countryside plan, built in the agricultural area subjected to landscape constraints. The municipality had ordered the demolition because the property was without building title and landscape roof. The owner contested the order by claiming that part of the artifact had been carried out in 1964, when the construction license obligation was not in force.
Proven produced a 1978 municipal police report which made generic reference to works carried out before Law 765/1967. He also argued that the remaining party had been entitled by a 2001 trade union authorization never canceled in self -protection, to which he had referred in applications to participate in the municipal calls for the conversion of rural properties.
The TAR had rejected the appeal considering the evidence provided insufficient. The owner therefore appealed to the Council of State.
Simplifications yes, but in the wake of the law
The Council of State rejected the appeal by fully confirming the first instance sentence. The pronunciation focuses on two profiles: the insufficiency of the evidence on the pre -existence and the total discrepancy of the existing with respect to the original.
First of all, the historical maps produced by the applicant are considered insufficient as they consist of mere graphic elaborations of partisan, not by objective documentation. In addition, the 1978 municipal police report contained a generic reference to an artifact dating back to 1964, without however bringing specific tests to support this thesis. However, it was a room per house of 9 x 4.50 meters, now used as a warehouse and offices, which from the checks carried out in 2021, has been incorporated into a wider building complex obtained by further constructions in adherence, which led to a completely different building for consistency, characteristics and intended use. Hence the demolition order.
Therefore, underlines the Council of State, given that those who invoke the legitimacy of an ante 1967 artifact must provide precise, serious and concordant elements, any expansion, elevation or change of intended use carried out without title eliminates the legitimate state and certifies the correctness of the demolition order.
No shortcuts to heal abuse
The Council of State then clarifies that in situations such as the one described, the need for testimonial investigation cannot be invoked, given that there is sufficient documentary evidence to demonstrate the abusiveness of the artifact in its current consistency. The reversal of the burden of proof, with responsibility for the Municipality, operates only in situations of objective reconstructive difficulty, not when the available elements already allow to ascertain the subsequent transformations.
In essence, the simplification provided for by the rules cannot translate into an implicit amnesty of discrepancies never ascertained, and only if the owner is able to produce the documentation requested by the law this must be evaluated by the Administration before issuing the demolition order for the artifact considered abusive.
From this point of view, however, the application for participation in various municipal calls for the conversion of agricultural properties to productive destination, since the calls in question had the purposes of supporting the socio-economic fabric of the procedures in question, specifically of protecting the production of production activities in the agricultural area, which does not evidently apply to remedy any irregularities from the urban-building point of view.
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