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COUNCIL OF STATE, SECTION 2, 17 FEBRUARY 2021 NO. 1452
The judgment in question, while stating that the construction of new buildings without a building permit always entails the imposition of a restorative sanction, according to the article 31 of Presidential Decree 380 of 2001, also recalls that the possibility of replacing the demolition sanction with a pecuniary sanction – provided for by article 34 of Presidential Decree 380 of 2001 – must be assessed by the competent Administration during the executive phase of the proceedings, which is subsequent and autonomous with respect to the demolition order; an executive phase in which the parties may argue that the stability of the building is at risk, which is the basis for the application of the pecuniary penalty instead of the demolition penalty, with the result that such assessment is not relevant for the purposes of the legitimacy of the demolition order.
In fact, it is not for the proceeding administration to assess, before issuing the order for demolition of the abuse, whether it can be applied, since it is for the private individual concerned to prove that it is objectively impossible to comply with the order without prejudice to the compliant party.