ITALIAN PROPERTIES THE NEW PLANNING LAW ("CONDONO EDILIZIO"): PREPARE TO APPLY
1) - The original planning amnesty law
2) - The challenge of the regional authorities and the Constitutional Court
Dr Claudio Del Giudice
Rivington House
82 Great Eastern Street,
London EC2A 3JF
(United Kingdom)
Tel 0044 207 613 2788
Fax 0044 207 613 2799
Building, restoration and in some cases even some form of property maintenance
are subject to detailed and complex planning, building and land registry
legislation, in Italy. Although often sanctioned with fines, demolition orders,
legal impossibility to sell the property and even criminal prosecutions,
breaches of these regulations are fairly frequent, with disastrous results for
innocent, foreign buyers.
Due to pressing social needs and in order to collect much needed revenue,
“planning amnesties” were launched two times in the past twenty years, in Italy.
Last year a third “planning amnesty” was introduced. However, after several
months, the new “Condono Edilizio” (Building and planning amnesty) is nowhere
near its final stages, and many details remain still to be defined. After
complex legislation at the national level introduced at the end of last year,
rulings of the Constitutional Court and compliance legislation recently
introduced by the central Government, it is now up to the regional authorities
(“Regioni”) to establish the exact extent of this amnesty, and to have the final
say in this matter. As it is, the “Condono Edilizio” could result in very
localised, “leopard skin” legislation; two properties only a few kilometres
apart, with very similar building / planning breaches, could be treated very
differently.
Due to a recent reform of the Italian Constitution, the regional authorities (“Regioni”)
have seen their range of administrative action / power to legislate
substantially extended, while a substantial degree of autonomy has also been
granted to other local authorities. The administrative / legislative powers of
the central Government have been correspondingly reduced. In this context, due
to financial pressures, the Italian central government introduced the recent,
third planning amnesty.
1) The original planning amnesty law
- With a Decree issued at the end of
September 2003 and a confirming law issued in November of last year, the Italian
central Government, introduced the new planning amnesty.
In a nutshell, and omitting much of the applicable detail, this new law, by
referring to the earlier versions of planning amnesty, states that certain
breaches of local building and planning legislation / regulations may be
“regularised”, upon payment of a fine (Oblazione) to the central Government and
of a fee (Oneri concessori) to the local authority having jurisdiction over the
particular area.
Five different kinds of “building / planning breaches” were defined which could
be regularised by this amnesty:
a) buildings erected without or in breach of planning permission, infringing
local regulations,
b) buildings erected without or in breach of planning permission, complying with
local regulations,
c) major building alterations (Ristrutturazione edilizia) effected without or in
breach of planing permission
d) restoration (Restauro e risanamento conservativo) without or in breach of
permission, infringing local regulations
e) restoration (Restauro e risanamento conservativo) without or in breach of
planning permission complying with local regulations.
For each kind of breach, different level of fines (Oblazione) and fees (Oneri
concessori) were established.
Other breaches were identified which could not be regularised / accepted in any
case, for various reasons. Property owners convicted for money laundering or
other serious offences will not benefit from this amnesty. Buildings which do
not comply with seismic / anti-earthquake legislation, or illegal buildings in
protected natural parks or other areas of outstanding natural beauty or
buildings in areas where restrictions apply to the use of water can not be
saved. Breaches of planning regulations relating to listed buildings (or
protected for other cultural / historical reasons), can not be regularised in
any event.
In addition, this legislation provided overall limitations to the extent
planning breaches could be remedied. Illegal dwellings / or extensions to any
existing residence could only be regularised if their total “illegal” volume did
not exceed 750 cubic metres, subject to an overall limitation of 3,000 cubic
metres of additional volume for each self-contained building. In any case, this
new amnesty only applies to breaches actually carried out and “completed” by and
not later than the 31st March 2003. Any breach after this date, can not be
saved.
Finally this legislation provided that only the original builder, the current
owner or some other person who could prove a special, established legal interest
in any particular property, could lodge an application to benefit from the new
planning amnesty by and not later than the 31st March 2004.
2)
The challenge of the regional authorities and the Constitutional Court - This
new legislation caused problems, immediately. Italy is currently going through a
process of transfer of administrative and legislative functions (Federalismo)
from the central Government to the regional authorities (Regioni) and other
lower local authorities (Province / Comuni). Over a year ago, the Italian
Constitution was amended to enforce this new framework. Building control
legislation and planning functions (Edilizia) were firmly transferred to the
regional authorities (Italy has 20 regional authorities of which 15 have
“ordinary” legislative powers and 5 have “special and autonomous” legislative
powers).
In addition, at the time the planning amnesty was introduced, a new planning and
building code (Testo Unico in materia edilizia), was being implemented by local
legislation. The regional authorities felt that this new legislation was taking
back their newly established legislative and administrative autonomy, in
addition to interfering with the new local legislation which is being issued to
enforce the new code.
It was also felt that this legislation was objectionable because it rewarded
illegal actions of irresponsible owners and sanctioned irretrievable damages to
the environment. On a practical level, by allowing the existence of new
dwellings in new, previously undeveloped areas, it committed the local
authorities to substantial expenses for additional public works (such as taking
over new roads, building new car parks, drainage, schools and other social
services) which would have to be urgently undertaken under current legislation.
As a consequence, eight applications were lodged by some of the regional
authorities (Campania, Marche, Toscana, Emilia-Romagna, Umbria and Friuli
Venezia-Giulia) with the Italian Constitutional Court, to obtain the repeal of
the new planning amnesty.
Furthermore, some of the opposing regional authorities, without waiting for the
ruling of the Constitutional Court introduced their own regional legislation
expressly countering the application of such planning amnesty, in their
territory. This regional legislation was in turn opposed by the central
Government, which applied for the Italian Constitutional Court to declare it
unconstitutional and as such being void and inapplicable.
With the approach of European and administrative elections at the end of last
June, this conflict was further aggravated by political considerations, the
opposing political coalitions taking sides in the planning amnesty debate.
Meanwhile, and given the uncertainty of the position, the deadline to apply for
planning amnesty was extended to the 31st July 2004 by further central
Government legislation.
Not to affect the outcome of the elections, apparently the Italian
Constitutional Court delayed publishing its rulings on this conflicting
legislation, which by now was causing severe confusions both to the potential
beneficiaries, the local authorities affected and of course to the central
Government which was expecting to reap the financial benefits of the new
planning amnesty.
The judgements of the Italian Constitutional Court on these connected issues
were eventually published on the 7th July 2004. The main ruling (Judgement
196/2004) deals with the applications of the Regions against the new planning
amnesty / central Government legislation. Here the Italian Constitutional Court
declared this central Government legislation partly unconstitutional because it
did not allow the regional authorities their say on matters of substance such as
the extent of planning breaches which could be saved, the actual procedure(s) to
be followed for this amnesty, the amount of fines and fees due on any
application, and more importantly, because no sufficient time had been allowed
to the regional authorities to issue their own implementing legislation. All the
opposing applications lodged by the regional authorities against such central
Government legislation were, in turn, rejected by the Court.
This ruling is eminently sensible however in practice it caused additional
concerns, especially to those “too eager” applicants, who having lodged their
application for planning amnesty and paid some of the fines / fees, without
waiting for the rulings of the Constitutional Court, found themselves at risk.
Having “reported” themselves to the authorities in the vain attempt of
benefiting from this new legislation, which was now partly repealed, there was a
risk they would have to face the consequences, unprotected. Corrective
legislation was urgently required and the approaching Summer recess of the
Italian Parliament did not make things any easier.
3)
The current state of play
- In the circumstances, the Italian Government
moved very quickly to implement the rulings of the Constitutional Court. On the
12th July 2004, less than a week after the publications of the judgements,
temporary urgent legislation was issued. This legislation was later confirmed by
law issued the Italian Parliament on the 29th July 2004.
Under this corrective legislation the 20 Italian regional authorities were given
four months within which to issue their own version of the implementing
legislation applicable within their own territory. Where no such planning
amnesty legislation is issued by this deadline, the central Government
legislation in its entirety will be applicable by default. It will now only be
possible to lodge planning amnesty applications with the relevant authorities
between the 11th November and the 10th December 2004 and not earlier or later.
Fines and other payments due in connection with the planning amnesty may be
payable by instalments well into next year.
Applications lodged before the corrective legislation came into force will be
“saved” at least in part, so that in the worst of cases, there will be no
criminal prosecution for any applicant who unwittingly reported himself, by
acting too hastily. It is now far too early to assess how each of the 20 Italian
regional authorities will use its newly established powers to legislate on the
local limitations, practical effects and procedures relating to the proposed new
planning amnesty.
Currently, most regional authorities (Regioni) are reported as being bent on
curbing the scope of the proposed planning amnesty, with the sole exception of
Sicily, which is proposing to actually enhance the original central Government
provisions by halving the fines and taxes payable upon application. Because of
its long history and its nature as a combination of legislation at different
levels, the new planning amnesty law is complex.
It is however a chance for anyone owning an Italian property in breach of local
regulations, to sort out the problem at a reasonable price. Similar
opportunities have arisen only twice in the last 20 years, and according to some
dicta of the Italian Constitutional Court, may not occur again in the
foreseeable future. Without wishing to get involved in the political wrangling
swirling around the new planning amnesty, simply from the point of view of the
property owner at fault, it is definitely an opportunity not to be missed.
From the foreign buyer point of view, this legislation spells out the absolute
requirement of carefully checking beforehand any Italian property one intends to
acquire. Any unreported / unacceptable breach of local regulations under this
planning amnesty, can no longer be remedied in the foreseeable future.
Dr Claudio Del Giudice
(Copyrights reserved, September 2004).