Hydrogeological restrictions and building offenses: Judgment No. 50500 of 2023
In Judgment No. 50500, decided on November 23 and filed on December 19, 2023, the Court of Cassation examined works in an area subject to a hydrogeological restriction, carried out under a building authorization lacking the opinion of the authority responsible for that restriction.
The legal classification
According to the headnote, the missing opinion vitiates the administrative procedure and makes the authorization unlawful. Works carried out in those circumstances constitute the building offense under Article 44 of Presidential Decree 380/2001, rather than the landscape offense under Article 181(1) of Legislative Decree 42/2004 for that same defect.
The limit of the ruling
The principle concerns the opinion relating to the hydrogeological restriction. It does not mean that all works in restricted areas fall outside landscape protection rules or that sanctions are generally less severe. The restrictions affecting the site and their respective authorization requirements must be distinguished.
