Judgment No. 50500 of 2023: Analysis of the Boundary Between Building and Landscape Offenses

Judgment No. 50500 of November 23, 2023, by the Court of Cassation, offers an important interpretation regarding building and landscape offenses, clarifying the conditions under which building work, carried out without the opinion of the competent authority, can be qualified. In particular, the Court ruled on the execution of works in areas subject to hydrogeological restrictions, establishing that the absence of the necessary opinion does not automatically constitute a landscape offense, but rather a building offense.

Context of the Judgment

The defendant, G. V., was accused of having carried out works in a hydrogeologically restricted area without the necessary opinion. However, the Court rejected the charge of landscape offense under Article 181 of Legislative Decree 42/2004, highlighting that the lack of a legitimate opinion vitiates the administrative procedure and renders the enabling title illegitimate.

Execution of works in an area subject to hydrogeological restrictions carried out under an enabling title lacking the opinion of the authority responsible for protecting the restriction - Landscape offense - Configurability - Exclusion - Building offense – Existence - Reasons. The execution, under an enabling title lacking the opinion issued by the authority responsible for protecting the hydrogeological restriction, of building interventions in an area subject to such restriction does not constitute the landscape offense referred to in Article 181, paragraph 1, of Legislative Decree of January 22, 2004, No. 42, but rather the building offense provided for by Article 44 of Presidential Decree of June 6, 2001, No. 380, as the lack of the aforementioned opinion vitiates the administrative procedure and renders the issued authorization title illegitimate.

Implications of the Judgment

This decision has significant implications for all those operating in the building sector, particularly for building professionals and entrepreneurs. The main consequences can be summarized as follows:

• Clarity on the distinction between building and landscape offenses.
• Greater attention to the need to obtain all necessary opinions before carrying out works in restricted areas.
• Potentially more favorable legal consequences for offenders of works that do not comply with landscape restrictions, as they may only be prosecuted for building offenses.

The Court referred to previous case law, highlighting how the lack of the responsible authority's opinion affects the legitimacy of the issued building title.

Conclusions

In conclusion, Judgment No. 50500 of 2023 represents an important reference point for building matters in Italy, clarifying the distinctions between various types of offenses. It is crucial for industry operators to understand the importance of obtaining the necessary opinions to avoid sanctions, even though, as highlighted by the Court, the legal consequences may not always be as severe as in the past. This ruling therefore calls for a more in-depth analysis of building practices to ensure compliance with current regulations.