With Circular No. 19/20925, the Ministry of Culture (MIC) clarified that, pursuant to Article 36-bis, par. 4, of Presidential Decree No. 380/2001, it is possible to obtain a “landscape amnesty” through a binding ex post opinion (i.e. for works already carried out), even when the intervention has entailed the creation or increase of surface areas or volumes.
This represents a significant change from the traditional framework of the Cultural Heritage and Landscape Code, which, under Article 167, par. 4, explicitly excluded such cases from the scope of regularization.
The MIC’s clarification is particularly relevant for developers, technical advisors and public authorities, as it helps define the boundaries between administrative streamlining and the protection of landscape values.
Content of Art. 36-bis, c. 4
Article 36-bis, par. 4, applies to works carried out:
(i) in partial non-compliance with the building permit (PDC) or the certified notice of commencement of works (SCIA), in the cases provided for under Article 34 of Presidential Decree No. 380/2001;
(ii) in the absence of, or in deviation from, the SCIA, in the cases provided for under Article 37 of the same Decree;
(iii) involving essential variations pursuant to Article 32 of Presidential Decree No. 380/2001.
Pursuant to Article 36-bis, par. 4, where such works:
“[…] have been carried out in the absence of, or in deviation from, the required landscape authorization, the competent head of office shall request a binding opinion from the authority responsible for managing the landscape constraint, in order to assess the landscape compatibility of the intervention – including in cases where the works have resulted in the creation of new usable surface areas or volumes, or the increase of those lawfully constructed. The competent authority shall issue its decision on the application within a mandatory period of 180 days, following a binding opinion from the competent Superintendence, to be rendered within a mandatory period of 90 days. If the opinions are not provided within the time limits set out in the second sentence, consent shall be deemed granted by silence, and the head of office shall act autonomously. The provisions of this article shall also apply in cases where the works are found to be incompatible with a landscape constraint imposed after their execution.”
Clarifications Provided by the Circular
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The Circular clarifies that, although there appears to be a conflict between Article 36-bis, par. 4, of Presidential Decree No. 380/2001 and landscape protection legislation, such inconsistency can be resolved in light of the principle of succession of laws over time.
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Accordingly, Article 36-bis is fully applicable even in the absence of an express derogation from the Cultural Heritage and Landscape Code.
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The Circular also reaffirms the importance of the mandatory 90-day time limit within which the Superintendence must issue its binding opinion. If no response is provided within this timeframe, consent shall be deemed granted by silent approval (silenzio-assenso).
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The MIC urges the Superintendencies to adopt all necessary organizational measures to prevent the silent-approval mechanism from becoming common practice, emphasizing its exceptional and residual nature.
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The obligation to assess landscape compatibility remains applicable even where the constraint was imposed after the works were carried out.