The role of the professional in the different phases of the procedure
Analyzing the process of the new conformity assessment of theart. 36-bis of the Consolidated Building Act, the role of the technical professional.
Firstly, regarding the conditions for initiating proceedings, it is he who, in the first place, must identify the abuse in terms of partial non-conformitywhich is configured when the modifications affect particular and non-essential elements of the construction and materialize in qualitative and quantitative divergences that do not affect the essential structures of the work(2). For example, jurisprudence has identified one partial discrepancy in the case of use of materials other than those envisaged(3).
Secondly, it is always he who must to verify that the intervention:
- complies with the urban planning regulations in force at the time of submission of the application;
- was compliant with the requirements prescribed by the building regulations in force at the time of construction.
On this last aspect, it is clear that the technical professional is called upon to identify the date of implementation of the intervention; for this purpose, the criteria established by the article are recalled 9-bis of the Presidential Decree 380/2001 to ascertain the legitimate status of the property: the technician can prove the year of construction of the property using cadastral data, photos, cartographic extracts and other public or private documents.
In cases where it is impossible to ascertain the time of implementation of the interventionhe himself is called to certify the date of realization with his own declaration, under his own responsibility: here the technician must show off his experience and his wealth of knowledge, in compliance with the principles of correctness and good faith and ethical standards.
Its asseveration is therefore an indispensable element with the known consequences in terms of liability, including criminal ones.
The request can be submitted within the deadline set in the demolition order former art. 34 of the Consolidated Construction Law and, in any case, within the imposition of administrative sanctions; the office has 45 days to express its opinion in the case of the building permit and 30 for the SCIA, after which the silent consent is formed. In the aforementioned period the office can condition the release of the provision on its implementation, by the applicant, of the building interventions, including structural ones, necessary to ensure compliance with the technical regulations of the sector relating to the safety, hygiene, healthiness and energy efficiency requirements of the buildings and the systems installed in them, and the overcoming of architectural barriers and to the removal of works that cannot be remedied. For the SCIA, the office identifies the measures to prescribe, which constitute conditions for the formation of the title.
Even in this case, the professional can act as connecting ring with the office before the decision regarding any compliance and removal interventions and in the execution of any obligations (production of documents, submission of requests, etc.). Likewise, although the law seems to identify the responsibility for managing the practice in the municipal technical office, a role for the technical professional cannot be excluded in the event that there is a need to verify the landscape compatibility of the work and proceed with the calculation of the related sanction. : and in fact, the law provides that the assessment of landscape compatibility entails a sanction equivalent to the greater amount between the damage caused and the profit achieved through the transgression; the amount of this financial penalty is determined following an expert appraisal.
The provision does not indicate the person/office called upon to carry out the estimate (the municipal technical office? The Administration that protects the constraint? A third party following an assignment?); However, the professional can certainly be involved for the evaluation of the correctness of the operations carried out.
The same attention must be paid to evaluating the correctness of the oblationexpected in a sum equal to double the increase in the market value of the property following the implementation of the interventions, in amounts between 1,032 euros and 30,984 euros.
Note
(1) Art. 36-bis – Verification of conformity in the event of partial discrepancies
1. In the case of interventions carried out in partial non-compliance with the building permit or the certified report of commencement of activity in the cases referred to in Article 34 or in the absence or non-compliance with the certified report of commencement of activity in the cases referred to in Article 37, until the expiry of the terms referred to in article 34, paragraph 1 and in any case until the imposition of administrative sanctions, the person responsible for the abuse, or the current owner of the property, can obtain the building permit and submit the certified report of starting the activity in the amnesty if the intervention complies with the urban planning regulations in force at the time of submission of the application, as well as with the requirements prescribed by the building regulations in force at the time of construction.
2. The permit presented pursuant to paragraph 1 may be issued by the One Stop Shop for construction referred to in Article 5, paragraph 4-bis, subject to the prior implementation, within the deadline assigned by the One Stop Shop, of the interventions referred to in second period. When examining requests for amnesty permits, the One Stop Shop may condition the release of the provision on the implementation by the applicant of the building interventions, including structural ones, necessary to ensure compliance with the sector's technical regulations relating to safety requirements , hygiene, healthiness, energy efficiency of the buildings and the systems installed in them, the overcoming of architectural barriers and the removal of works that cannot be remedied pursuant to this article. For certified reports of commencement of activity presented pursuant to paragraph 1, the One Stop Shop identifies among the interventions referred to in the second period the measures to be prescribed pursuant to article 19, paragraph 3, second, third and fourth sentences of the law of 7 August 1990, n. 241, which constitute conditions for the formation of the title.
3. The request for the building permit or the certified notification of the start of activity under amnesty are accompanied by the declaration of the qualified professional certifying the necessary conformities. For building compliance, the declaration is made with reference to the technical standards in force at the time the intervention was carried out. The time of implementation of the intervention is proven through the documentation referred to in article 9-bis, paragraph 1-bis, second and third sentences. In cases where it is impossible to ascertain the time of completion of the intervention through the documentation indicated in the third period, the technician in charge certifies the date of completion with his own declaration and under his responsibility. In the event of a false or mendacious declaration, criminal sanctions apply, including those provided for in chapter VI of the consolidated text of legislative and regulatory provisions regarding administrative documentation, referred to in the decree of the President of the Republic of 28 December 2000, n. 445.
4. If the interventions referred to in paragraph 1 are carried out in the absence or non-compliance with the landscape authorisation, the manager or manager of the office requests the authority responsible for managing the restriction for a specific binding opinion regarding the assessment of the landscape compatibility of the 'intervention. The competent authority decides on the application within the peremptory deadline of one hundred and eighty days, subject to the binding opinion of the superintendency to be given within the peremptory deadline of ninety days. If the opinions are not provided within the deadlines set out in the second period, the manager or office manager will do so independently.
5. The issuing of the permit and the certified notification of the start of activity under amnesty are subject to the payment, by way of oblation, of a sum equal to double the increase in the market value of the property resulting from the implementation of the interventions, in an amount between 1,032 euros and 30,984 euros. In the cases referred to in paragraph 4, if landscape compatibility is ascertained, a sanction equivalent to the greater amount between the damage caused and the profit achieved through the transgression is also applied. The amount of the financial penalty referred to in the second period is determined following an expert appraisal. In case of rejection of the application, the demolition sanction referred to in the art. 167, paragraph 1, of the cultural heritage and landscape code, pursuant to legislative decree 22 January 2004, n. 42.
6. On the request for amnesty permit, the manager or person in charge of the competent municipal office issues a decision with a reasoned provision within forty-five days, after which the request is considered accepted. The deadline referred to in article 19, paragraph 6-bis, of law no. 7 August 1990, applies to reports of commencement of activity presented pursuant to paragraph 1. 241. In the cases referred to in paragraph 4, the terms referred to in the first and second periods are suspended until the landscape compatibility procedure is defined. Once the terms referred to in the first, second and third periods have elapsed, any subsequent decisions by the competent municipal office are ineffective. The deadline is interrupted if the office represents investigative needs, motivated and formulated in a timely manner within the terms themselves, and starts again from the receipt of the investigative elements. In case of ascertained lack of the requirements and conditions for the amnesty, the manager or manager of the competent municipal office applies the sanctions provided for by this consolidated act.
(2) Council of State, sec. VI, sentence. 30 March 2017, n. 1484.
(3) Council of State, sec. VI, sentence. 12 April 2023, n. 3691: in the specific case the interested party had used molded plaster instead of prefabricated sandwich panels with interposed fiber wool insulation and, for the coverings placed on all the pergolas, differently from what was prescribed in the landscape authorization, a PVC tarpaulin.
