A recent ruling by the Regional Administrative Court (TAR) of Campania has established a fundamental principle regarding building amnesty and landscape restrictions, clarifying what the obligations of the Municipalities are in amnesty proceedings.

A citizen had submitted a request for amnesty for a property built in an area subject to landscape constraint. However, the Municipality rejected the request and ordered the demolition of the building, without reopening an adequate evaluation procedure, despite a previous cancellation of the landscape authorization by the Superintendence.

The TAR considered that the actions of the municipal administration were illegitimateunderlining that, before issuing such a serious measure as a demolition order, the Municipality should have reviewed the entire file with a complete investigation and detailed reasons.

This ruling brings with it important implications: what obligations does a Municipality really have when it denies an amnesty? Is it always possible to order demolition?

Let’s find out what the law says and how this decision could affect similar cases in the future.

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The specific case and the reasons for the refusal

The controversy originated when a citizen appealed against the denial of a building amnesty and the consequent demolition order issued by the Municipality for a building built in an area subject to landscape restrictions. The property, a commercial warehouse for mineral oils, had been built by the appellant’s father, now deceased, and was the subject of an amnesty request presented in 1995 pursuant to law no. 724/1994, one of the key regulations regarding building amnesties.

The Municipality had rejected the request, motivating the measure with the sole cancellation of a landscape authorization previously issued by the same body, then revoked by the competent Superintendence due to alleged defects in the motivation.

This cancellation, however, was not followed by a re-examination of the case or by the initiation of a new procedure aimed at re-evaluating the landscape compatibility of the building.

In addition to the denial, the City had issued ademolition order pursuant to article 31 of Presidential Decree 380/2001, requiring the appellant to proceed with the removal of the work and the restoration of the original state of the places within 90 dayswith the warning that, in case of failure to comply, the property and the surrounding area would be acquired by right of the municipal property.

The appellant, considering the administration’s actions illegitimate, argued that the Municipality should have restarted an administrative landscape assessment procedure before definitively denying the amnesty and ordering the demolition.

According to the defence, the cancellation of the landscaping authorization by the Superintendence could not have automatically justified the rejection of the amnesty, but would have required further investigation to determine whether the property was actually capable of being renovated.

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The legislation involved and the landscape restriction

The matter is part of a complex regulatory framework that intertwines the provisions on building amnesty with the protection of landscape restrictions. There are two main regulations referred to in the case: law no. 724/1994, which regulates the procedures for building amnesty, and article 31 of Presidential Decree no. 380/2001, which regulates the consequences of illegal works, including the demolition and acquisition of areas as public property.

The building object of the amnesty request was located in an area subject to landscape restrictions, governed by article 146 of the Cultural Heritage and Landscape Code (Legislative Decree no. 42/2004).

This type of constraint imposes an obligation of landscape authorization for any building intervention, with the aim of preserving the aesthetic, cultural and environmental values ​​of the territory.

In this case, the Municipality had initially issued the landscape authorization, but the Superintendency, the competent authority at state level for landscape protection, had subsequently canceled it due to alleged lack of motivation.

Following this cancellation, the Municipality should have reviewed the amnesty request in light of the new indications, according to the provisions of article 32 of law no. 47/1985 (transitional rule for building amnesties in restricted areas).

The relevant legislation requires, in fact, that in the case of illegal works subject to landscape restrictions, the administration carries out an in-depth assessment that takes into account both the environmental impact of the work and the specific circumstances of the current urban planning and landscape context.

According to the jurisprudence referred to by the TAR, the Municipality, in reviewing a request for amnesty, cannot simply confirm the cancellation of the landscape authorization, but must adequately justify the decision, considering all the possible alternatives, including the possibility of granting a new authorization.

However, this in-depth analysis was not carried out. The Municipality limited itself to rejecting the request and issuing a demolition order, thus contravening the procedural principles required by law and consolidated jurisprudence.

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The position of the TAR and the final decision

The Regional Administrative Court of Campania, with sentence no. 2482 of 2024, has the appeal presented by the citizen was acceptedhighlighting that the Municipality acted in a lack of investigation and motivation. The ruling clarified that the cancellation of the landscape authorization by the Superintendency does not automatically legitimize the rejection of the building amnesty requestnor does it justify issuing a demolition order without further investigation.

According to the TAR, current legislation requires that, once a landscape authorization has been cancelled, the Municipality reopens the administrative procedure to evaluate whether the work can be remedied through a new authorization, on the basis of an adequate and updated justification.

This principle, already established in previous sentences of the Council of State, requires the administration to consider all the circumstances of the case, including the characteristics of the work, the current landscape context and the possible presence of reasons of public interest that justify the amnesty. .

In the case in question, the TAR found that the Municipality did not fulfill this obligation, limiting itself to confirming the denial of the amnesty without re-evaluating the request or providing a strengthened justification, as required for the restricted areas. Consequently, the provision was considered flawed due to excess of power and violation of the principles of transparency and administrative participation.

The ruling of the TAR is not limited to canceling the denial of the amnesty and the demolition order, but reiterates that, in the re-edition of the procedure, the Municipality will have to examine the amnesty request again, evaluating whether the conditions exist for the issuing of a new landscape authorization. Only in the event that this evaluation is negative will it be possible to issue a new denial order, adequately motivated, and a possible demolition order.