The Regional Administrative Court of Campania has recently issued a sentence of particular interest in the field of construction and urban regulations. The case concerned ademolition order imposed by a municipality following technical checks that had highlighted a series of building differentity compared to Building permit Originally.

The applicant had challenged the provision claiming that the variations made were modestly and included in the Constructive tolerances provided for by the law, or which in any case could be remedied by means of a pecuniary sanction.

However, the TAR rejected the appeal, clarifying once again the criteria with which the building changes and the limits of the sanidity must be assessed.

But what are the elements that make an incurable building abuse? And when can the demolition be avoided?

Let’s see it together.

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The case: the building dispute and the appeal

The story originates from an inspection carried out by the municipal technicians, during which numerous discrepancy emerged between the fact of the property and the permission to build original.

According to the technical report drawn up following the inspection, they had been made volumetric expansions not foreseen in the authorized projectwith an increase in the size of some rooms and balconies, which involved a change in the profile of the building. Variations were also detected in the perspective openings, with the closure and opening of windows in positions other than those indicated in the approved building securities.

One of the most relevant aspects of the dispute concerned the increase in the internal height of some premises, higher than granted to the building permit.

This element assumed particular importance in the case of attics, who, according to the original project, should have maintained a technical function, but which in reality had been transformed into real habitable environments. In addition to the increase in the internal useful height, the Municipality contested the creation of sandwiches that redefined the internal distribution of the spaces, without having been presented any preventive communication or building title suitable for legitimizing these interventions.

In the face of these irregularities, the municipal administration adopted a demolition order, believing that the works carried out were abusive and not remediable.

The applicant therefore has challenged the measure before the TARclaiming that many of the changes made included within the limits of the construction tolerances provided for by art. 34-bis of Presidential Decree 380/2001. According to this legislation, variations of minimum entity in the size of the properties do not require a new building permit and cannot be sanctioned with demolition.

Another central point of the appeal concerned the change of intended use of the attics. The applicant’s defense referred to the Campania regional law 15/2000, which allows the housing recovery of the pre -existing attics, provided that the building is intended, at least in part, to the residence and that the transformation respects certain technical parameters.

On the basis of this legislation, the applicant claimed that the administration should have recognized the legitimacy of the change of intended use and allow the amnesty of the intervention.

Despite these arguments, The TAR considered the appeal unfoundedconfirming the demolition order adopted by the Municipality.

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The reasons of the TAR: because the appeal was rejected

In his decision, the Campania Regional Administrative Court considered that the works carried out could not be considered simple formal irregularities or slight variations, but constituted real building transformations that significantly affected the urban load and the compliance of the building compared to current regulations.

One of the central points of the sentence concerns the principle according to which the building differentity they must be evaluated as a whole and not in a fragmentary way. The TAR reiterated that, on the basis of consolidated administrative jurisprudence, the verification of the legitimacy of an abusive work cannot be limited to the analysis of the individual interventions considered isolated, but must instead be based on an overall assessment of the property.

This approach led the judges to conclude that the numerous discrepancies ascertained, as a whole, represented a substantial and not remediable building abuse.

As for the applicant’s request to apply art. 34-bis of Presidential Decree 380/2001, relating to construction tolerances, the TAR observed that the variations found did not fall within the limits of the law. In fact, the volumetric increase of the building, as well as the modification of the internal heights and perspective openings, exceeded the 2% threshold provided for by the legislation. This figure automatically excluded the possibility of classifying the discrepancies as minor variations and, consequently, made the institution of constructive tolerance invoked by the applicant inapplicable.

Another decisive aspect in the Tar decision concerned the question of change of intended use of the attics. The applicant’s defense had recalled the Campania regional law 15/2000 to support the legitimacy of the transformation of these premises into residential units. However, the judges showed that the property in question did not comply with the requirements of regional legislation, in particular as regards the minimum authorized heights and the pre -existence of the attic as an non -habitable environment.

In addition, the Tar stressed that the municipal administration itself had already rejected a request for amnesty for another apartment in the same building in the past, based on the same criteria. By virtue of this, administrative jurisprudence confirmed that the amnesty could not be granted and that the transformation of the attic was illegal.

Finally, the TAR clarified that the possible prejudice caused to the parts of the building legitimately built did not represent a sufficient reason to exclude demolition. According to the judges, any problems related to the stability of the building or the possibility of restoring the compliant parties should have been addressed in the executive phase of the provision, and not in the administrative judgment aimed at contesting the legitimacy of the demolition order.

In light of these considerations, the appeal has been rejected and the demolition order was confirmed, with a condemnation of the applicant to pay the legal fees.