The autonomy between the two titles
The jurisprudential orientation is known (1), confirmed in the sentence in comment of the judges of Palazzo Spada, according to which:
- The landscape authorization, also in amnesty (2), constitutes an autonomous act with respect to the building permit or other titles legitimizing the urban-building intervention (see art. 146, paragraph 4, of Legislative Decree no. 42 of 2004 (3));
- The two acts of consent, the landscape and building, operate on different plans, being placed to protect different public interests, albeit partially coinciding; The landscape authorization and the building title respond to distinct and typed public interests: one evaluates, by the vast of the discretionary technical appreciation, the landscape compatibility of the proposed building intervention, while the other, with autonomous and specific investigation, ascertains the urban-building compliance of the artifact.
Issue of the building permit in the absence of the landscape authorization
As mentioned in the sentence in question, in the presence of a landscape constraint, the release of the building permit for construction works is subject to obtaining the landscape authorization. The failure to acquire the necessary opinions, however, makes the building permit not unwelling but ineffective, given the structural and functional autonomy of the two building-urban and landscape measures, preventing the start of the works until the landscape authorization is obtained.
The release of the building permit, in the absence of the landscape authorization, cannot in any way legitimize the building from a landscape point of view (4); This outcome would be in contrast with the principle expressed by the Constitutional Court (sent. No. 196/2004), according to which the landscape interest must always be expressly evaluated also in the scope of the balance with other public interests, as well as with the jurisprudence which, in the matters that involve sensitive interests, such as the landscape, limits the institution of silence assent only to the resort of specific regulatory provisions and in compliance with all the constraints order; There is a principle of autonomy also between the urban-building offense and the landscape offense, as well as an autonomy between the related procedures and sanctioning regimes (5).
Works in the absence of the landscape authorization
The works carried out in the absence of the landscape title are in any case susceptible to inhibitory and sanctioning acts, as they are made in violation of the prohibition referred to in art. 146 paragraph 2 of Legislative Decree no. 42/2004 (6).
The refusal of the building permit in the absence of the landscape authorization
The reference parameter for the evaluation of the landscape aspect does not coincide, therefore, with the urban-building discipline, but in the specific discipline dictated for the specific constraint.
In the specific case subject to the decision of the Council of State, the Municipality had denied the building permit by evaluating and appreciating exclusively building-urbanistic profiles without invading the skills of the authority in charge of the protection of the bond; This is why – also for obvious reasons of procedural economy, of effectiveness of the administrative vehicles as well as of the principle of non -aggravation of the procedure – the failure, subject to interlocution with the authority responsible for the protection of the bond could not constitute a reason for the invalidity of the refusal as this based, in the peculiarity of the case, exclusively on building and urban planning reasons of the municipal authority.
Notes
(1) Council of State, section VI, sent. January 20, 2023, n. 682; Tar Calabria, Catanzaro, section II, sent. March 8, 2024, n. 353.
(2) Tar Campania, Salerno, section II, sent. May 25, 2023, n. 1225.
(3) “Pursuant to art. 146 co. 4, d l.gs n. 42/2004 The landscape authorization also in amnesty (so-called assessment of landscape compatibility), constitutes an autonomous and prerequisite act with respect to the building permit or other securities legitimizing the urban-building intervention: it gives rise to a necessary and instrumental ratio between landscape assessments and urban assessments, so that these two appreciations are intended for express themselves on the same object in close provisional succession, with the consequence that the landscape authorization must be acquired before embarking on the building procedure, which cannot be defined positively for the interested party in the absence of the prior achievement of the title of landscape compatibility (see Council of State, Section IV, 9 February 2016 n. 521 and 27 November 2010 n. 8260; 2011 n. 261)“: Tar Campania Naples, Section III, sent. June 14, 2022, n. 4000.
(4) Tar Campania, Salerno, section II, sent. November 8, 2023, n. 2490.
(5) Tar Campania, Naples, section VIII, sent. June 5, 2023, n. 3458.
(6) Tar Sardinia, section I, sent. September 26, 2023, n. 680.
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