demolition order for illegal artifacts

How to evaluate a building abuse

For the purpose of evaluating a Building abuse, you need one overall vision of the works carried out.

In other more specific terms, the prejudice caused by the intervention deemed abusive with respect to the regular structure of the territory derives not from each work separately considered but from the set of works in their contextual building impact and in reciprocal interactions.

This is the principle confirmed by a recent ruling of the Campania Tar, sect. VII, judgment of 20 July 2021, n. 5028.

Demolition order confirmed

The case brought to the attention of the Campania judges concerned a local kitchen of which the Administration contested the urban legitimacy.

This compartment had been built following some interventions in a part of the building previously used as a toilet disengagement and even earlier as a terrace.

The appellant defended himself in court, noting that the presence of a kitchen compartment in place of the pre-existing toilet hallway was documentally proven by the cadastral plan of 1979 and that the urban legitimacy of the property, in its current conformation, had already been examined by the Public Administration on several occasions.

  • in 1994, following the release of the building permit to carry out extraordinary maintenance work on the property, consisting in the construction of a new roof with a concrete floor of the local de quo, with the movement of the kitchen in the aforementioned room, previously used as a disengagement of the toilet;
  • in 1998, on the occasion of the issue of further authorization by the Municipality of Sorrento, which certified the urban compliance of the property and, therefore, also of the contested kitchen.

Furthermore, the applicant stated that the urban planning legitimacy appeared to have also been surveyed in 2000 by the Municipality, for the purposes of determining the ICI payment, a tax calculated also taking into account the kitchen area and the new internal volume of the apartment and regularly paid.

Comprehensive and non-atomistic assessment for building abuses

The TAR of Campania, in rejecting the arguments formulated by the applicant, confirms a previous orientation of the administrative jurisprudence, relating to the necessary broad assessment of theBuilding abuse.

According to the judges, a building abuse must be the subject of a comprehensive and non-atomistic vision of the works carried out, not being able to break down a part of them to deny the subjectability to a specific demolition sanction, given that the damage caused to the regular structure of the territory does not derive from each intervention in itself but from the set of works in their context building impact and in mutual interactions.

It follows that in cases in which the expansion of spaces and at the same time also a mere different distribution of the interior spaces is established, without the issue of a qualifying title, the Administration has the power to adopt the demolition order.

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