In recent years, the Recovery of attics For housing purposes it has become one of the most used tools to enhance the existing building heritage, especially in consolidated urban contexts. This trend, supported by increasingly flexible regional regulations, often clashes with another equally fundamental need: that of respecting the urban planning rules in force at the time of the construction of the works.
But what happens if a work, although initially considered illegitimate because of a modest structural modification, becomes legitimate in the light of the new rules? Is it right to order the demolition anyway or does the interest prevails to maintain the intervention, especially if it improves the safety of the building?
To clarify it is a recent sentence of the administrative court of Emilia-Romagna, which has shed light on a crucial theme: the balance between legality and regulatory topicality. A decision that opens new scenarios in the relationship between citizens, municipalities and administrative justice.
But is it really enough to change a rule to make a building abuse legitimate? And where does the border between public interest and protection of private property ends?
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The fact: the recovery of the contested attic
It all starts in an condominium located in the municipality of Fidenza, where a owner decides to recover the attic above his apartment for housing purposes. To do this, it regularly presents a building trail (certified signaling of start of activity), followed by a variant. The works are carried out, but a group of condominiums disputes the intervention, claiming that this has led to a unauthorized increase in the heights of full and eaves of the roof – changes, to them, not allowed by the municipal building urban regulation then in force.
According to the applicants, the intervention he would have altered the volumes And the skyline of the building, and for this it had to be sanctioned as a building abuse. The affair is complicated when the municipal administration, after an inspection, initially concludes that the works are substantially compliant with the building securities.
However, this evaluation comes canceled by the TAR in a previous sentence, which recognizes the violation of art. 80 of the old rue.
The TAR thus requires the Municipality a new evaluation, this time on the basis of art. 21-Nonies of Law 241/1990, which governs administrative self-protection, asking to establish if there is a concrete and current public interest to demolish the intervention already carried out. At that point, the Municipality starts the procedure but concludes that there are no conditions to proceed in self -protection, precisely because the intervention, although irregular at the time, It would be fully admissible today According to the current urban planning legislation.
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The legal node: art. 21-Nonies and administrative self-protection
At the center of the dispute is located art. 21-Nonies of Law 241/1990, a rule that allows the public administration of cancel an illegitimate provision ex officiobut only with two conditions: there must be a concrete and current public interestand the cancellation must not cause a disproportionate prejudice to the subjects involved.
Therefore, the simple “violation of legality” to justify a late intervention is not enough: it is necessary to evaluate whether, in the specific context, there are valid reasons to remove what has been done.
In the case examined, even if the TAR had already established the illegitimacy of some heights reached by the attic – judging the partially irregular wake – the Municipality considered that There was no sufficient public interest to proceed with demolition.
The reason?
The intervention in question had not only been completed, but also responded to important structural purposesas the anti -seismic adjustment of the building through the addition of a summit curbing, and was now compliant with the new urban planning regulation approved in the meantime.
The sentence underlines that the public interest, in construction, cannot be reduced to the mere formal restoration of legality, but must take into account the regulatory evolutions and of concrete effects on collective and private interest. This approach prevents self -protection from becoming a punitive tool disconnected from reality, especially in areas such as urban regeneration, where the rules change rapidly.
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The position of the Municipality: between formal legality and collective interest
The decision of the Municipality not to intervene in self -protection is based on one Weighted and updated evaluation of the regulatory and urban context. The Administration has in fact noted that, although at the time of the construction of the works, the urban regulation prohibited increases in height, the legislation has subsequently changedaligning themselves with the regional provisions that favor the housing recovery of the attics, even with minimal changes in eaves and full.
In particular, the variant of the regulation approved in 2017 allows changes to the height Up to 50 cm for the eaves and up to 1 meter for the heightprecisely to encourage housing recovery, energy efficiency and structural improvement.
The contested intervention falls perfectly in these new limits. In addition, the height increase was due to the insertion of a summit curbing – A structural element designed to improve the anti -seismic safety of the building, not to earn volumes.
For the Municipality, imposing the demolition would have meant not only to cause serious economic and material damage to the ownerbut also to compromise the stability of the building, without any real benefit for the community. Consequently, the current public interest did not justify such a drastic and disproportionate measure.
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Tar’s decision: a legality that evolves
The administrative court, with the sentence n ° 108/2025, confirmed the legitimacy of the work of the Municipality, recognizing the correctness of the balance between public and private interests. According to the judges, the municipal provision is not spoiled by arbitrariness, but is consistent with what was imposed by a previous sentence (n. 82/2021), which forced the administration to evaluate – not automatically, but in a motivated way – if there was a further public interest to justify a self -protection intervention.
The TAR stressed that The violation of urban planning legality alone is not enough To justify the posthumous cancellation of a building title if in the meantime the rules have changed and the work, even if originally illegitimate, is now compatible with the current discipline. In addition, the function anti -seismic and conservative of the summit curbing It strengthens the public interest in its stay, since it is an element that improves the safety of the entire building.
In summary, the TAR has adopted a realistic and “contemporary” approach of urban law, which does not separate legality from its concrete functionespecially in a context in continuous transformation such as that of building regeneration. The appeal, therefore, was rejected and the applicants sentenced to the payment of the court costs.
