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Council of State: the “continuity” between the demolished building and the reconstructed one marks the boundary between building refurbishment and new construction

With ruling No. 8542/2025, the Supreme Administrative Court (Consiglio di Stato) upheld the first-instance decision, annulling the certificate of building and planning compliance by which the Municipality of Milan had deemed lawful a demolition and reconstruction project, entailing a change of use from industrial to residential, carried out on the basis of an alternative SCIA (Certified Notice of Commencement of Works) in lieu of a building permit.

While acknowledging that the notion of building refurbishment has evolved over time, departing from the rigid obligation of “faithful reconstruction”, the decision affirms that a demolition and reconstruction project may qualify as refurbishment only where there exists an effective continuity between the demolished building and the reconstructed one.

In the absence of an express statutory definition of “continuity”, the Supreme Administrative Court identified its operative criteria, specifying that it exists only where the following conditions are met:

  1. the works must concern one single building, with the exclusion of any merger or subdivision of volumes;
  2. demolition and reconstruction must take place at the same time and be authorized under the same building title;
  3. the volume of the reconstructed building may not exceed that of the demolished one, without prejudice to the possibility of allowing volumetric increases only in exceptional, one-off cases expressly provided for by the applicable legislation or by municipal planning instruments governing renovation works. The intervention must in any case remain neutral in terms of its physical impact on the territory.

In the absence of such continuity, the intervention must be classified as new construction, thereby requiring a building permit.

The Supreme Administrative Court accordingly dismissed the appeals brought by the Municipality of Milan and the owner company, confirming the annulment of the certificate of conformity relating to the building title.

The full text of the decision is available at the following link.

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