In March of last year, the Second Division of the Council of State, in judgment No. 2228/2024, addressed an issue of great importance in town-planning law: what discipline applies to building works carried out under a lapsed building permit?
The query, marked by divergent case law, was referred to the Plenary Meeting, which - by decision 14/2024 - provided important clarifications.
The case
The case submitted to the Plenary Meeting originates from a very complex situation: in 2010 a building permit was issued for the construction of an underground garage.
Following a complaint, a criminal investigation was initiated, which resulted in a judgment containing, among other things, the condemnation of the ad acta commissioners who had issued the building permit and the assessment of the “absolute and macroscopic illegality of the building permit”.
Subsequently, the Municipality of Sorrento notified the owner of the land and the contractor of the measure (not challenged) acknowledging the lapse of the 2010 building permit, due to expiry of the time limit for completion of the works.
Then the Municipality ordered, pursuant to Article 31 of the Building Consolidation Act (Presidential Decree No. 380/2001), “the reinstatement of the state of places as it was prior to the execution of the works partially carried out under the building permit”, moreover holding that the lapse of the building permit “encompasses any immediate assessment as to the legitimacy of the building permit”.
The decision was challenged by the owners and the contractor before the Regional Administrative Court of Campania, claiming that the works, having been carried out in compliance with a permit valid at the time they were done, could not be considered illegal. The Regional Administrative Court of Campania confirmed the legitimacy of the demolition order, considering that the incomplete works were incompatible with urban planning regulations.
The query and the views of case law
The main query submitted to the Plenary Meeting was: what rules apply to works partially carried out under a lapsed building permit and not completed under a new permit?
The reference rules are contained in Article 15 of the Building Consolidation Act, providing for limited duration of building permits, with automatic forfeiture for works not completed by the deadline[1].
Article 15 of the Building Consolidation Act verbatim states that “(…) the time limit for the commencement of work may not exceed one year from the issuance of the permit; the time limit for completion, within which the work must be completed, may not exceed three years from the commencement of work. Once such terms have expired, the permit lapses automatically for the part not carried out, unless, before expiry, an extension is requested. An extension may be granted, by reasoned decision, for facts that have arisen that are extraneous to the will of the permit holder, or in consideration of the size of the work to be carried out, of its particular technical-constructive characteristics, or of technical-execution difficulties that have arisen after the beginning of the works, or in the case of public works whose financing is envisaged in several financial years. (…)
3. The execution of the part of the work not completed by the scheduled deadline is subject to the issue of a new permit for the work still to be carried out, unless the latter falls within those that can be carried out by certified notice of commencement of work (…)
4. The permit lapses with the entry into force of conflicting urban planning provisions, unless work has already begun and is completed within three years from the date of commencement”.
Therefore, what is the fate of works carried out under a lapsed permit?
Case law is split into two views:
Conservative approach: works carried out in compliance with a valid permit cannot be considered illegal, even if the permit has lapsed: the lapse of the building permit applies ex nunc, preserving the legitimacy of the works already constructed[2];
Demolition approach: works not completed and without autonomous functionality must be deemed illegal, since the lapse of the permit makes their permanence illegal[3].
“in the case of buildings lacking autonomy and functionality, the Municipality must order their demolition and restoration to the original condition pursuant to Article 31 of Presidential Decree No. 380/2001, as being constructed in full conflict with the building permit;
- if the building permit involved the construction of a plurality of functionally autonomous buildings (e.g. cottages) that are compliant with the building permit considering such permit as fractioned, the constructed buildings - without prejudice to the need to verify whether the urban development works have been carried out and without prejudice to the need for them to be carried out in any case - must be deemed to be based on a suitable permit, even if the constructed buildings are not fully completed, but - insofar as they are characterised by all the constitutive and essential elements - need only minor works that do not require the issuance of a new building permit;
if the incomplete but functionally autonomous works have non-conformities that cannot be qualified as serious, the Administration may apply the sanction laid down by Article 34 of the Consolidation Act;
the party concerned has the possibility, where all the conditions are met, to obtain a permit to preserve the existing structure and to request a conformity assessment pursuant to Article 36 of the Consolidation Act in the case of “minor” works (in terms of perimeter, volumes, heights) with respect to those authorised, so as to provide the building - which is per se functional and usable - with a suitable permit in terms of its regularity from an urban planning point of view”.
The judgement of the Plenary Meeting
The Plenary Meeting, in an articulate decision, while recognising the validity of some of the arguments of the conservative approach, established clear criteria for distinguishing the situations, emphasising that:
The Plenary Meeting emphasised some fundamental principles:
compliance with the project: the carrying out of the works must strictly comply with the approved project. Partial constructions deviating from the permit are to be considered illegal;
protection of the territory: the ruling highlights the importance of preserving the integrity of landscape and town planning, avoiding the permanence of incomplete and disfiguring buildings;
tempus regit actum: new permits must comply with the town planning regulations in force at the time of issue, ensuring adequate control over the development of the territory.
[1] The recent publication of the “Milleproroghe 2025” decree (Decree-Law 202/2024, Official Gazette No. 302 of 27 December) further extended the deadlines for the start and end of construction works, which had already been subject to previous extensions since Decree-Law 21/2022 (Ukraine Decree). The decree provides for a 36-month extension for:
validity of town-planning conventions (e.g., parcelling out) and the relevant implementation plans, provided they are not in conflict with new planning instruments or liens for environmental and cultural protection.
The extension is not automatic: the party concerned must submit an official notice to enforce the measure. Extention is subject to verification of certain requirements:
building permits must not have expired at the time of the notice;
there must be no incompatibility with new planning instruments or landscape or cultural liens;
the measure applies also to SCIAs and landscape permits (standard and simplified) already extended under former rules, such as the extraordinary regime of Decree Law No. 69/2013 and the emergency rules of Law 27/2020.
[2]See Council of State 5258/2022; Council of State 5588/2019.
[3] See Council of State 8605/2019; Council of State 10291/2023.
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