Source: www.edilportale.com
The mechanism was explained by the Council of State with sentence 5128/2018.
Demolition or fine, when you can choose
The judges explained that “the repression of building abuses constitutes a binding act, the motivation of which satisfies the requirements of the law even when it is reduced to the affirmation of the ascertained irregularity of the intervention, any specific comparison between the public interest and the private interests involved or sacrificed being superfluous”. In other words, building abuses must always be punished and eliminated, regardless of any damage that the tried, responsible for the interventions, could suffer.
The Municipality must therefore always issue the demolition order in the event of ascertainment of a building abuse.
“The possibility of replacing the demolition penalty with the pecuniary one – reads the sentence – must be assessed by the competent Administration in the executive phase of the procedure, subsequent and autonomous with respect to the demolition order: the textual data of the law is unambiguous and insurmountable, in line with the principle for which, once the abuse has been ascertained, the demolition order must certainly be issued”.
The Municipality in choosing between the execution of the demolition or an alternative fine must consider whether the demolition can take place “without prejudice to the part carried out in compliance.
In the presence of risks to the parts of the building in order, “the manager or office manager applies a penalty equal to twice the production cost”. These are, the CdS concluded, cases that occur mainly when some interventions are carried out in
Demolition or fine, the case
In the case examined by the Council of State, the Municipality had rejected a request for amnesty, presented after the expansion of a building and ordered the restoration of the state of the places. Those responsible had stated that, instead of the demolition order, the municipality should have imposed a financial penalty.
The judges explained first of all that, according to Law 326/2003, abuses carried out in restricted areas or in violation of urban planning instruments cannot be remedied. Given that the entire territory of the municipality had previously been declared “of considerable public interest”, the Administration had declared the volumetric expansion uncondonable.
The CdS also recalled that building interventions carried out on buildings located in territories subject to constraints of considerable public and landscape interest can only be condoned if they have consisted of minor interventions such as restoration works, conservative rehabilitation and extraordinary maintenance.
Since it is not a maintenance intervention, the judges ruled out the amnesty. Since the restoration of the state of the places could take place without damaging the legitimately built construction, the CdS confirmed the demolition order.
