By Judgment No. 4155/2026, Section IV of the Council of State addresses some of the most significant and topical issues in Italian urban planning law, including:
- the distinction between building renovation, new construction and urban redevelopment;
- the use of regularised volumes for the purposes of volumetric bonuses;
- the relationship between building permits and landscape authorisations;
- the effects of declarations of unconstitutionality concerning regional laws granting building incentives.
The Case
The Municipality of Savigliano had issued a building permit for the demolition of a former disused roasting facility and the construction of a new residential building, higher and largerwith a greater height and volume than the existing structure.
Neighbouring owners challenged the building title, arguing that the project was incompatible with the applicable planning framework and that the volumetric bonuses applied were unlawful.
From the TAR to the Council of State
At first instance, the TAR Piemonte declared the action appeal inadmissible, finding that the neighbouring owners had not demonstrated a concrete prejudice.
The Council of State, however, recognised both their standing and legal interest to act, holding that neighbouring owners may challenge a building project where alleged planning violations are potentially capable of affecting their legal position.
A Single Building Is Not Sufficient to Constitute Urban Redevelopment
One of the main grounds of appeal concerned the classification of the intervention.
According to the appellants, replacing the industrial complex with a residential building altered the overall urban layout of the block and therefore required the prior approval of an implementation plan.
The Council of State rejected this argument, recalling that urban redevelopment concerns the transformation of the urban fabric as a whole and not merely the reconstruction of a single building.
The Current Concept of Building Renovation
The judgment confirms a well-established line of case law according to which building renovation no longer coincides with the mere preservation of the existing structure.
Even demolition and reconstruction works involving significant changes to the building footprint, location, elevations and typological characteristics may fall within the notion of building renovation.
The decisive element remains the existence of a pre-existing building to be replaced.
Building Renovation vs New Construction: The Distinguishing Criterion
The Council of State reaffirms that the true distinction between the two categories does not lie in the extent of the work’s transformation.
What distinguishes building renovation from new construction is the existence of a pre-existing structure constituting the starting point of the intervention.
By contrast, new construction entails a transformation of the land through the creation of an entirely new building organism.
Regularised Volumes Form Part of the “Lawful Status” of the Property
Particularly noteworthy is the section devoted to volumes previously regularised through an amnesty procedure.
According to the Council of State, once retrospective regularisation has been granted, such volumes must be regarded as fully lawful and may therefore be used as the basis for calculating subsequent volumetric increases.
Absent an express statutory prohibition, works regularised through amnesty cannot be subject to less favourable treatment than properties originally authorised.
Building Permits and Landscape Authorisations Operate on Different Levels
The judgment also addresses the relationship between building permits and landscape authorisations.
The Council of State confirmed that the two measures are autonomous and may be issued at different times.
Accordingly, a building permit may be granted prior to the issuance of the landscape clearance; however, it remains ineffective until such clearance has been obtained and does not allow construction works to commence.
The Ground Upheld: Building Bonuses Based on Unconstitutional Provisions
The only ground upheld concerned provisions of Piedmonte regional legislation allowing the volumetric bonuses relied upon in the project.
Such provisions were subsequently declared unconstitutional by the Constitutional Court.
According to the Council of State, a declaration of unconstitutionality also affects building titles issued pursuant to those provisions.
The Court held, in particular, that: “a declaration of the constitutional illegitimacy of legislation applied by the administration in the exercise of its powers gives rise to a form of ‘supervening’ invalidity — characterised as an original defect as regards its effective date, given the retrospective (ex tunc) effect of Constitutional Court judgments, but supervening as regards its discoverability — and entitles the court to annul the measure, provided that the applicant has raised a specific ground of challenge relating to the alleged unconstitutionality of the relevant provision” (Council of State, Section IV, 4 May 2023, No. 4523).
Accordingly, in partial upholding of the appeal, the unlawfulness of the building permit was ascertained — solely for the purposes of a damages claim pursuant to Art. 34(3) of the Code of Administrative Procedure — to the extent of the ground just examined.
Outcome of the Judgment
The appeal was upheld only in part.
The Council of State rejected all claims relating to the classification of the intervention, volumetric calculations, building heights and landscape issues.
However, it declared the building permit unlawful insofar as it was based on regional provisions subsequently declared unconstitutional.
Such finding was issued solely for compensation purposes, as the claimants’ interest in the annulment of the building title had in the meantime ceased to exist.
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