Time of construction intervention: who bears the burden of proof?

The general rule

This jurisprudential direction has become consolidated not only for the case in which you ask to benefit from the building amnestybut also – in general – for power exclude the need for the prior issuing of the qualificationwhere the question arises, precisely, of a work dating back to a period prior to the introduction of the administrative authorization regime of the ius aedificandi.

Even more specifically and for the sake of completeness of motivation, it should then be added that the burden of proof of the date of construction of the property, in particular for the purposes of demonstrating that it should have been built in a period for which a building permit was not necessary, rests on the private (also) by virtue of the provision contained in the art. 64, paragraph 1, cpa, therefore the appellant bears the burden of proof regarding circumstances within his availability(3). This orientation is based on the principle of “proximity of proof”, being in the private sphere the proof regarding the time of construction works and the relative consistency, as only the interested party can provide irrefutable deeds, documents or evidentiary elements that are able to establish the reasonable certainty of the non-illegal nature of a building work, due to the possible pre-existence with respect to the time of the introduction of a specific authorization regime of the ius aedificandi(4).

The exception

It’s true that jurisprudence attenuates the rigor of the evidentiary burden “according to reasonableness” in cases in which the private individual, on the one hand, supports his thesis on the implementation of the intervention before a certain date relevant elements (for example, aerial photogrammetry) and, on the other hand, the public administration does not duly analyze these elements or there are uncertain elements in relation to the presumable date of construction of the building without building permit. In this case, the use of proof based on presumptions is not excluded, on the basis of prognostic evaluations based on known facts or maxims of common experience, thus inferring, according to normal criteria, the probable date of such completion from a complex of documentary, photographic and certification datanecessary in contexts that are either too complex or where cartographic and photographic surveys are scarce (5).

In essence, the private party’s deduction of concrete factual elements relating to the time of the abuse can transfer the burden of proof to the contrary to the administration(6); however, this is because there are actually elements capable of providing a relevant evidentiary framework of the date of the abuse, such as cadastral datathe nature of the materials usedthe testimonies given in other trials; also declarations in lieu of affidavit are considered usable provided there are other new, precise and concordant elements(7).

Three specific cases

In the present case, according to the judges of Palazzo Spada, the interested party had not been able to provide any proof or principle of proof that the administration first and then the administrative judge should have valorized in a favorable sense with respect to the thesis of the dating of the building subject to demolition due to lack of building permit; and in fact:

• aaerial photogrammetry of 1956 it demonstrated the existence of artefacts and constructions built at the time but did not provide proof of the correspondence of these constructions – in terms of size – to the works contested as illegal;
• there sworn appraisal it referred to various construction changes carried out in the fund starting from 1981 and not before.

Among recent cases, we recall that, equally:

• according to the TAR Campania, Salerno, section. II, sentence. 4 November 2024, n. 2062the burden of proof on the interested party cannot be said to have been fulfilled if the will published before 1967 does not contain any mention of the property in question;
• according to the TAR Campania, Salerno, section. II, sentence. 31 October 2024, n. 2039this burden cannot be considered fulfilled if the artefacts of interest are not described in the public documents presented; if the aerial photos of the IGM and the photographs are after 1967 and if the declarations produced in the documents remain without any external corroboration and in any case have a generic content.

Notes

(1) Council of State, sec. VI, sentence. 5 March 2024, n. 2165.
(2) Council of State, sec. VI, sentence. 3 October 2024, n. 7969.
(3) See, among many others, Council of State, section. VI, sentence. 24 November 2023, n. 10101 and sent. 9 June 2023, nos. 5659 and 5668.
(4) Council of State, sec. VI, sentence. 25 May 2020, n. 3304 and sec. IV, sentence. 1 April 2019, n. 2115.
(5) Council of State, sec. VI, sentence. 13 November 2018, n. 6360; sent. 19 October 2018, n. 5988 and sentences. 18 July 2016, n. 3177.
(6) Council of State, sec. VI, sentence. March 16, 2020, n. 1890.
(7) Council of State, sec. II, sentence. 4 January 2021, n. 80.
“The sole declarations made by third parties, or the declarations in lieu of affidavits included in the sales contracts pursuant to art., cannot be considered sufficient. 46 of Presidential Decree 380/2001, as they are incapable of being verified (see ex multis, Cons. Stato, VI, n. 9612/2023; id., n. 2524/2020)”: TAR Lazio, Latina, sec. II, sentence. 21 October 2024, n. 650. The Lazio judges also recalled that “the building activity is, in fact, susceptible to timely documentation, with the consequence that “the objective test principles concerning the placement of the artefacts both in space and in time, are found in the ruins, foundations, aerial photographs, cadastral maps, where the evidence for witnesses is entirely residual; given the premise, it follows that the proof of the time of construction is deduced from objective data, which resist those resulting from the cadastral extracts or from testimonial evidence and it is the burden of the private individual, who disputes the administration’s data, to provide rigorous proof of the different era of construction of the property, exceeding that provided by the public part. It follows that in construction disputes, testimonial evidence, which is only written, is completely recessive compared to objective evidence concerning the location of the artefacts both in space and in time” (Cons. Stato, VI, n. 4/2022)”.