On July 21st of the current year, the Italian Council of State (Supreme Administrative Court) presented its latest views on two relevant topics.
The first matter addressed by the judges is the obligation of Public Administrations to communicate, in the context of administrative procedures, the reasons that could lead to a negative outcome prior to the final decision (referred to as comunicazione dei motivi ostativi all’accoglimento della domanda, or preavviso di rigetto). This obligation is set by article 10-bis of the Italian Administrative Procedure Act (L. n. 241/1990).
The second principle established by the Council of State concerns the power of an individual, who is not the sole owner of property, to apply for a building regularization (referred to as sanatoria), with the aim of preventing a demolition order for an unauthorised building.
In the case that led to the ruling, the intended use of a building was modified without the necessary permit. This resulted in the issuance of a demolition order to the two owners of the building. One of them expressed his will to comply with the order, while the other one applied for two regularizations, particularly regarding the intended use. Both requests were denied. The applicant decided to challenge the second denial.
In the first instance judgement, T.A.R. Molise (Regional Administrative Court of Molise) ruled against the applicant, now plaintiff, stating that i) the Administration had complied with the aforementioned article 10-bis, by clearly stating the reasons that led to the denial, inherently rejecting the applicant’s claims and that, ii) nevertheless, the outcome could not have been positive, as the applicant did not possess the authority to apply for such regularization, since his right of property was not complete but only partial and shared.
The T.A.R. Molise ruling was appealed by the applicant. This gave the Council of State the opportunity to set out general principles regarding both issues.
As for the first issue, the Council started by stating the rationale behind art. 10-bis, which is to provide the private applicant a “second chance”, as it represents the last opportunity to address the obstacles the Administration sees as impediments to a favourable decision before it is made. Furthermore, the Administration can also benefit from this process, as it can lead to a better, more well-founded final decision, contributing to a more efficient decision-making process.
With regards to this peculiar case, it is fundamental to note that the applicant responded to the Administration’s preavviso di rigetto with information that had already been submitted, albeit partially, in the initial application. For this reason, the Council stated that in cases like this, to fulfil its obligation, it is sufficient for the Administration to “underline that the information is not new” in the final decision.
Addressing the second matter, the Council began by reviewing the existing case law. Two contrasting principles have emerged and more frequently applied. According to the first, building authorisations could only be granted when the consent of all the co-owners is at least deemed to exist. The second, most recent principle moved towards a sharper separation of administrative and private law matters: it argued that building authorisations had to be granted purely based on “the compliance with town planning regulations”, “leaving any dispute related to the rights of the co-owners to its natural settlement context, which is the civil lawsuit”.
The Council then continued by highlighting how, in this specific case, the lack of power of the applicant is evident. Referring to the first instance ruling by T.A.R. Molise, it underlined how “each time the plaintiff tried to change the formal use of the building in the past, the other owner opposed the authorisation of such modification”.
In conclusion, the Council of State established a principle that compels Administrations to conduct an investigation, albeit to a limited extent, to verify if the applicant can prove full power to apply for such authorisation. If the investigation yields a negative result, the Administration would be obliged not to issue the requested authorisation.