Commentary on Judgment no. 36580 of 2023: Building Abuse and Condonation in Restricted Areas

Judgment no. 36580 of May 17, 2023, represents an important reference point regarding building abuses carried out in areas subject to landscape restrictions. In this decision, the Court clarified the differences between the condonation procedure and that for prior landscape authorization, establishing a stricter regulatory framework for building violations in such areas.

The Regulatory Context

The building condonation procedure, in the case of abuses carried out in restricted areas, is governed by Article 32 of Law no. 47 of February 28, 1985. According to this provision, the Superintendence is required to express an opinion based on a spatium deliberandi of 180 days, unlike the 45-day period provided for prior authorizations. This extension of time is due to the need for a thorough examination of cases of abuse already committed.

Implications of the Judgment

Building abuse carried out in an area subject to landscape restrictions - Request for condonation - Opinion of the Superintendence - Procedure - Differences compared to the procedure provided for the issuance of prior landscape authorization - Indication - Reasons. Regarding building offenses, if the abuse is found to have been carried out in an area subject to landscape restrictions, the administrative procedure for the issuance of the authorization for regularization, due to the criminal offense already committed, is governed with greater rigor, providing that the Superintendence, for the formulation of the opinion of its competence, prescribed by art. 32, paragraph 1, law of February 28, 1985, no. 47, benefits from a wider "spatium deliberandi" than that assigned to it by art. 146 of Legislative Decree of January 22, 2004, no. 42, for the issuance of prior landscape authorization (180 days, instead of 45) and that the unsuccessful expiry of said term is considered a silent refusal, appealable before the administrative judge.

This judgment highlights how the rigor of the condonation procedure is justified by the need to protect the landscape heritage, establishing clear guidelines for cases of abuse. The differences between the two procedures are significant and directly influence the possibilities of obtaining regularization for building abuses.

Final Considerations

In conclusion, judgment no. 36580 of 2023 is part of a legal context that seeks to balance the right to property with the protection of the landscape heritage. Italian and European regulations on environmental and landscape matters place a strong emphasis on the prevention and repression of abuses, making legal advice essential for those who find themselves facing situations of this type.