By Judgment No. 1878 of 9 March 2026, the Italian Council of State confirmed the case-law according to which tacit approval in relation to a building permit may arise even where the relative application presents inconsistencies with urban planning provisions.
Specifically, the Council of State reaffirmed the abandonment of the previous judicial approach whereby the formation of tacit approval would require the application to be fully compliant with the applicable “urban planning regulations and planning instruments”. According to the Court, such an interpretation finds no support in the statutory framework and is inconsistent with the simplification purpose underlying the tacit approval mechanism. Moreover, it undermines legal certainty by placing the applicant in a state of ongoing uncertainty as to whether the building title has been effectively granted.
For tacit approval to arise, it is sufficient that the application be accompanied by the documentation considered “essential” by law, namely the documents listed in Article 20(1) of Presidential Decree No. 380/2001. Where such documentation is submitted, the application must be regarded as “effectively filed”, with the consequence that the public administration is required to issue its decision within the statutory time limit. If the administration fails to act within that period, tacit approval is deemed to arise.
Conversely, potential inconsistencies with urban planning provisions do not fall within the minimum essential elements required for the application and therefore do not render the application unsuitable for examination by the administration. As a result, such inconsistencies do not prevent the building permit from being formed by tacit approval.
As a consequence of the formation of the permit through silent consent, the Council of State also observed that the permit remains subject to annulment by the administration under the self-review powers provided by Article 21-nonies of Law No. 241/1990.
The full sentence is available here
The Firm remains available for any further clarification.