Studio Legale Petrali · Guide
Planning and landscape offences: art. 44 d.P.R. 380/2001, art. 181 d.lgs. 42/2004, preventive seizure, retrospective permission and restoration orders.
Article 44 of d.P.R. 380/2001 punishes as contravvenzioni (minor offences) breaches of planning rules, the execution of works without a building permit or in total non-conformity with it, and unlawful land subdivision (lottizzazione abusiva). Being contravvenzioni, these offences are punishable even where committed through mere negligence.
Decree of the President of the Republic 6 June 2001, no. 380 structures the criminal sanction on three levels. Letter a) of article 44 punishes with a fine (ammenda) non-compliance with the rules, prescriptions and implementing arrangements provided for by title IV, by building regulations, by planning instruments and by the building permit. Letter b) punishes with detention (arresto) of up to two years and a fine the execution of works in total non-conformity with, or in the absence of, the permit, or their continuation despite a suspension order.
Letter c) punishes with detention of up to two years and a higher fine the unlawful subdivision of land for building purposes and works carried out in areas subject to historical, artistic, archaeological, landscape or environmental constraints, or in areas of environmental interest, in total non-conformity with the permit or with essential variations from it. The persons liable are identified by article 29: the permit holder, the commissioning party, the builder and the works director, each within the scope of his own responsibilities. Since these are contravvenzioni, the mental element is satisfied even by negligence pursuant to article 42, fourth paragraph, of the criminal code: a defence based on the mere absence of any intent to circumvent the rules is, for this reason, structurally weak.
Legal references: artt. 3, 10, 22, 29, 31, 44 d.P.R. 6 giugno 2001, n. 380; art. 42, comma 4, c.p.
Article 181 of d.lgs. 42/2004 punishes the execution of works on landscape-protected assets without authorisation or in breach of it. Paragraph 1 creates a contravvenzione (minor offence); paragraph 1-bis provides a delitto (serious offence), punishable with imprisonment (reclusione), for works exceeding specified thresholds of volumetric increase.
Legislative decree 22 January 2004, no. 42 punishes under article 181, paragraph 1, with the penalties provided for by article 44, letter c), of d.P.R. 380/2001, whoever, without the required authorisation or in breach of it, carries out works of any kind on landscape-protected assets. Paragraph 1-bis raises the sanctioning treatment, with imprisonment (reclusione), for works which have entailed an increase in the buildings of more than thirty per cent of the volume of the original construction or, alternatively, an enlargement of volume exceeding seven hundred and fifty cubic metres, or again a new construction with a volume exceeding one thousand cubic metres. The scope of the delitto is that resulting from judgment of the Constitutional Court of 23 March 2016, no.
56, which declared paragraph 1-bis unconstitutional in the part relating to letter a), namely works on properties or areas declared of notable public interest by a measure issued before the works were carried out, and in the part of letter b) which confined the delitto to works on properties or areas protected by law under article 142: the delitto therefore remains anchored solely to the volumetric thresholds. Paragraph 1-ter excludes the delitto where the competent administrative authority establishes the landscape compatibility of the works in the exhaustively listed cases: works carried out without or in breach of the authorisation which have not created useful floor area or volume, nor increased that lawfully built; use of materials different from those authorised; works classifiable as ordinary or extraordinary maintenance within the meaning of article 3 of d.P.R. 380/2001. The procedure is that of articles 167, paragraphs 4 and 5, and 181, paragraph 1-quater.
Legal references: artt. 142, 146, 167, commi 4 e 5, 181, commi 1, 1-bis, 1-ter, 1-quater, d.lgs. 22 gennaio 2004, n. 42; art. 44, lett. c), d.P.R. 380/2001; Corte cost. 23 marzo 2016, n. 56.
Against a preventive seizure ordered under article 321 c.p.p., an application for riesame (interlocutory re-examination) may be made to the review court within ten days of its execution. Alternatively, or at a later stage, the court may be asked to revoke the seizure because its preconditions have lapsed, with a possible appeal against refusal.
Article 321 of the code of criminal procedure makes preventive seizure conditional on the existence of the fumus commissi delicti and the periculum in mora, the latter consisting in the danger that free availability of the thing connected with the offence may aggravate or prolong its consequences or facilitate the commission of further offences. In building offences the periculum is traditionally anchored to the continuation of building activity and to further impairment of the orderly development of the territory: where the works have been completed, maintaining the restraint requires specific reasoning on the urban-planning load.
The means of challenge are the riesame under article 324, with a ten-day time limit from execution of the measure, and the appeal under article 322-bis against other measures, including refusal of revocation. Against the decision of the review court, an appeal to the Court of Cassation lies under article 325, confined to violation of law, a category which includes apparent or absent reasoning but not mere illogicality. Consideration should be given from the outset to an application for release of the property for the purpose of carrying out safety works or effecting restoration of the site, which the court may authorise with a limited right of use.
Legal references: artt. 321, 322-bis, 323, 324, 325 c.p.p.; art. 240 c.p.; art. 44, comma 2, d.P.R. 380/2001.
The grant of a building permit in sanatoria (retrospective regularisation) extinguishes the contravvenzioni provided for by the planning rules in force, pursuant to article 45, paragraph 3, of d.P.R. 380/2001. It does not, however, automatically extinguish the landscape offence, which follows the autonomous regime of article 181 of d.lgs. 42/2004.
Article 36 of decree of the President of the Republic 380/2001 governs the verification of conformity for works carried out without a permit or in total non-conformity with it; article 36-bis, introduced by decree law 29 May 2024, no. 69, converted with amendments by law 24 July 2024, no. 105, governs the verification of conformity in cases of partial non-conformity and essential variations, with a requirement of conformity with the planning rules in force at the time the application is submitted and with the building rules in force at the time the works were carried out. The same article 36-bis regulates the interface with the landscape constraint: where the works were carried out without or in breach of the landscape authorisation, the grant of the retrospective title presupposes the binding opinion of the authority responsible for protecting the constraint on the landscape compatibility of the works, given within the time limits set by the provision; in the event of a negative assessment, the restorative measures provided for by legislative decree 42/2004 remain applicable.
Article 45, paragraph 3, provides that the retrospective grant extinguishes the contravvenzioni provided for by the planning rules in force; paragraph 1 provides for the suspension of the criminal action until the administrative procedures have been completed. On the landscape side, article 167, paragraphs 4 and 5, of legislative decree 42/2004 applies: the compatibility assessment is admitted only in the exhaustive cases already indicated and produces, pursuant to article 181, paragraph 1-ter, circumscribed effects. Article 181, paragraph 1-quinquies, provides a specific extinguishing cause: restoration of the site at the offender’s expense, carried out before it is ordered ex officio by the administrative authority and in any event before conviction, extinguishes the offence under paragraph 1.
Legal references: artt. 36, 36-bis, 45 d.P.R. 380/2001; d.l. 29 maggio 2024, n. 69 conv. l. 24 luglio 2024, n. 105; artt. 167 e 181, commi 1-ter e 1-quinquies, d.lgs. 42/2004.
No. The demolition order made with the judgment of conviction pursuant to article 31, paragraph 9, of d.P.R. 380/2001 and the site-restoration order provided for by article 181, paragraph 2, of d.lgs. 42/2004 are ancillary administrative sanctions in nature and are not extinguished by any limitation period.
Article 31, paragraph 9, of decree of the President of the Republic 380/2001 establishes that, for unlawful works, the court, with the judgment of conviction for the offence under article 44, orders the demolition of the works if this has not already been carried out by other means. Article 181, paragraph 2, of legislative decree 42/2004 provides that, with the judgment of conviction, the court orders restoration of the site at the convicted person’s expense.
Both orders are characterised in the case law of the Court of Cassation as ancillary administrative sanctions of a restorative, non-punitive nature: hence their exclusion from the rules on limitation of penalties and their survival even where the offence is extinguished by limitation, provided a conviction has already been handed down, as well as in the event of a suspended sentence, save where the benefit is expressly made conditional on execution of the demolition pursuant to article 165 of the criminal code. Enforcement falls to the Public Prosecutor pursuant to articles 655 et seq. of the code of criminal procedure, concurrently with the powers of the municipality. The enforcement court may revoke or suspend the order where incompatible administrative measures exist, such as the grant of a retrospective title or the adoption of an acquisition measure with allocation to public purposes.
Legal references: art. 31, commi 3 e 9, d.P.R. 380/2001; art. 181, comma 2, d.lgs. 42/2004; artt. 165 e 173 c.p.; artt. 655, 665, 666 c.p.p.
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