Twitter Logo Youtube Circle Icon LinkedIn Icon

The Legal 500 Hall of Fame Icon The Legal 500 Hall of Fame highlights individuals who have received constant praise by their clients for continued excellence. The Hall of Fame highlights, to clients, the law firm partners who are at the pinnacle of the profession. In Europe, Middle East and Africa, the criteria for entry is to have been recognised by The Legal 500 as one of the elite leading lawyers for seven consecutive years. These partners are highlighted below and throughout the editorial.
Click here for more details

Italy > Legal Developments > Law firm and leading lawyer rankings

Editorial

THE “DECREE OF DOING”: OUTLINING SOME OF ITS PRACTICAL ASPECTS

The "Decreto del Fare" ("Decree of Doing" - Law Decree 21st June 2013, n. 69,  turned into Law 9th August 2013, n. 98) contains regulations designed to simplify legal matters related to the construction industry with the purpose of helping its workers and to kick start a sector deeply affected by the economic crisis.

However not all these attempts at simplification were successful: on one hand it is important to note that the "Decree of Doing" provided an answer to certain unresolved questions, on the other hand, some provisions set out by said decree created some practical problems.

 

Our Firm, as a specialist in all sectors of Administrative Law, deals with questions concerning building and construction on a daily basis and has encountered various cases which illustrate that the application of the "Decree of Doing" requires careful consideration. The following paragraphs will deal with some of these practical matters. 

1. The effects of the Decree can be observed for example in art. 30, par. 1, sub. a), where a question of intense legal debate both in terms of court rulings and academic study was resolved, substantially modifying the definition of "ristrutturazione edilizia" (building restructuring) contained in the "Testo Unico Edilizia" (T.U.E. - Consolidated Building Law - Presidential Decree n. 380/2001).

On the basis of the material established by the aforementioned Presidential Decree the term "action of building restructuring" was understood to mean actions of "demolition and reconstruction with the same measurement of volumes and shape as the preexisting building". The "Decree of Doing" removed from art. 3, par. 1, sub. d),T.U.E. the requirement regarding the shape of the building (with the exception of buildings subject to the restrictions pursuant to the Legislative Decree n. 42/2004 or situated within the historical centres of cities), thus widening the scope and therefore the application of building restructuring.

In order to grasp the reach of the provision it is necessary to summarize briefly the development of the law in question.

Originally the Presidential Decree was quite restrictive with regards to provisions for building restructuring, requiring the demolition of a building to be followed by its exact and faithful reconstruction.

The subsequent Legislative Decree n. 301/2002 widened the notion of demolition followed by exact reconstruction, requiring only the use of the same measurement of volumes and the same shape as the preexisting building, while the use of the original materials and the same building plot was no longer compulsory.

In art. 27, Regional Law n. 12/2005, the Region of Lombardy allowed actions to be considered as building restructuring through demolition and reconstruction without requiring the use of the same shape. However the Regional Administrative Court of Lombardy on more than one occasion has ruled in favour of the necessity of the same shape, regardless of the aforementioned regional law provision (T.A.R. Lombardia - Milano, n. 5122/2010; T.A.R. Lombardia - Brescia, n. 1552/2011). In any case said provision was declared to be illegitimate by the Constitutional Court by the Sentence n. 309/2011, since it maintained that the legislative definition of various types of building actions should be decided by the State. In fact, the type of construction permit sought depends upon the different kinds of said building actions and each permit has different implications for the proceedings, the duties and the consequences (potential criminal sanctions) in the instance of a breach.

The effects of said ruling have created many problems not only for future actions but also dangerous gaps in the law and uncertain situations regarding actions in progress and in possession of a permit. It is important to note that actions of building restructuring involving the demolition and reconstruction of a building represent an expanding type of operation (see also Legislative Decree n. 70/2011). Hence the changes brought about by the "Decree of Doing" have been of great importance and use to the construction industry, even if the benefits of such changes are limited, because they do not apply to expired permits.

2. Moreover, the introduction of these changes by the "Decree of Doing" widened the concept of building reconstruction so as to include the rebuilding of demolished or ruined buildings provided that there is detailed evidence of their previous structures. Furthermore in this case it must be noted that it would not be necessary to abide by the regulations concerning the distance between buildings which apply to new constructions.

3. Another of the Decree's points of debate can be found in paragraphs 3 and 3-bis (the latter introduced by the revision of the Decree with the Law 9th August 2013, n. 98). These paragraphs state that:

"apart from different provisions laid down by regional laws, the terms for the start and end of works referred to in art. 15 of Presidential Decree n. 380/2001, as established by the construction permits granted or formed prior to the entry into force of the present Decree, are postponed by two years subject to communication by the concerned party, provided that said terms have not already expired at the time of communication and that the construction permits are not at odds with new urban planning regulations approved or adopted" [...]

"3-bis. The terms of validity as well as the terms regarding the start and end of works relating to the conventions of subdivision of land as referred to in Art. 28 of the Law 17th August 1942, n. 1150, or similar agreements also named by the regional legislation established up until 31st December 2012 are postponed by three years".

Paragraph 3 does not pose particular problems. In fact, it introduces an ‘automatic' postponement of validity of building construction permits for both the beginning and the end of the works. Unlike that which is set out by regular procedures, the concerned party is not obliged to present any request for postponement nor to specify any motivation or wait for a grant provision. In order to obtain a postponement, it is sufficient to carry out a communication (in which one must make it known that they fall within the limits of the time scale foreseen by the law), provided that the Administration has the power to verify that the building construction permits are not at odds with new urban planning regulations.

This  results in an effective simplification, because it allows for the transfer of terms, without having to demonstrate the existence of causes foreseen by Art. 15 of the Consolidating Building Law.

The argument changes however in the case of paragraph 3bis which sets out a postponement of three years of the terms regarding the validity of building construction permits and of the terms concerning the start and end of works provided for in the construction permits granted in view of said conventions.

The law poses the following problems:

-first it does not specify if it requires a communication from the concerned party. Thus, it is not clear if it is applicable ‘automatically' without the necessity to fulfill certain conditions (e.g. a precautionary communication) unlike in par. 3, or on the contrary, if some form of communication is required,

- the postponement concerns only the start and the end of works, but the conventions in relation to the subdivision of land can provide for other terms which relates to further possible obligations regarding works of primary and secondary urbanization, the cession of areas to comply with urban standards or the payment of a sum to monetize said standards.

It is unclear as to whether these deadlines are postponed, insofar as they are connected with the activity of building construction. The exceptional nature of the law allows for a narrow interpretation: a literal reading could lead to the exclusion of the postponement of said other terms.

This could create various practical problems and makes the benefits from the new regulation only partial ones: the workers in the construction sector find themselves in a moment of undeniable difficulty given the complex economic backdrop and in any case, will have to refer to the Administration in relation to any terms different to those which concern the start and finish of works established in construction permits, cancelling out a large part of the advantages which they could have gained from the law in question.

 

It is already clear from these few observations that the "Decree of Doing", aimed at kick-starting a sector which was badly hit by the economic crisis, despite responding in part to the needs of said sector here described at length, was not entirely successful  in its intention. 

Interview with...

Law firm partners and practice heads explain how their firms are adapting to clients' changing needs

International Law Firm Networks

International comparative guides

Giving the in-house community greater insight to the law and regulations in different jurisdictions.

Select Practice Area

GC Powerlist -
Italy Teams

  • Italy Teams GC Powerlist

    Recognising in-house innovation, quality and excellence, the GC Powerlist: Teams identifies an array of the most influential and innovative in-house teams working in the country.

    GC Powerlist: Italy Teams

    Interactive PDF

International Law Firm Networks