Rome and Milan are currently revising their respective general town planning instruments: the PRG for the Italian capital and the PGT for the Lombard capital. Final approval of both instruments is not expected before the end of the year. Meanwhile, a crucial question remains open: which regulations apply until their entry into force?
The answer is far from straightforward. To prevent developers from circumventing the adoption of stricter regulations – such as lower building indices or increased mandatory social housing quotas – by accelerating applications for building permits, safeguard measures have been in place since 1952. Under these rules, where a development project conflicts with an adopted urban planning instrument, the Municipality must suspend any determination on the application.
However, the application of this mechanism raises critical issues, particularly in relation to the following two questions:
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Is a building permit protected from newly adopted regulations merely by being effective, or is it also necessary that construction has commenced?
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Can municipalities introduce exceptions to safeguard measures in their urban plans, allowing pending applications to be assessed under the rules of the previous town planning instrument?
1. Application of Adopted Regulations to Building Titles
According to established administrative case law (TAR Milan No. 1814/2021; Council of State No. 7516/2020), a building title remains valid even if construction has not commenced before the adoption of a town planning instrument. It is sufficient for the building title to have become effective, meaning:
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For building permits (PDC): upon issuance;
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For SCIA (both ordinary and substitutive of a PDC): 30 days after submission, provided the application is complete. Although ordinary SCIA is legally effective upon filing, certain case law requires a 30-day waiting period, similar to the SCIA substituting a PDC;
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For conditional SCIA: 30 days after the fulfillment of the prescribed conditions.
However, to mitigate the risk of expiration, it is essential to commence works within one year and complete them within the subsequent three years. Under Article 15, par. 4, of Presidential Decree No. 380/2001, if the restrictive amendment is approved before construction begins, the building permit automatically lapses.
2. Municipal Exceptions and Limitations Imposed by the Criminal Court
Certain Municipalities have attempted to mitigate the impact of safeguard measures:
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Rome: Article 113 of the recently adopted PRG establishes that the new planning rules do not apply to building titles submitted before its adoption, provided they comply with the urban planning regulations in force at the time of filing;
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Milan: The current (soon-to-be-replaced) PGT contained a similar provision, exempting projects already under review at the time of adoption from the new rules.
However, Milan’s approach was challenged by the Italian Supreme Criminal Court (ruling No. 21476/2023), which held that national law prevails over any conflicting local provisions. The judgment clarified that safeguard measures established by national (and regional) legislators cannot be disregarded by municipal planning rules, in accordance with the hierarchy of legal sources.
While this interpretation may be questionable – given its restrictive impact on municipal planning autonomy and potential adverse effects on legal certainty for both developers and local authoritie – it must nonetheless be taken into account when handling building applications, particularly in relation to the recently adopted PRG in Rome.
SI – Studio Inzaghi is available for any clarification.