The permesso di costruire in derogation

Article 14 of the consolidated building code governs the building permit in derogation from planning instruments. Case law characterises it as exceptional relative to the ordinary building consent, an expression of a broadly discretionary power taking the form of a planning decision.

From that characterisation follows the requirement of a prior resolution of the municipal council. It is not a formality: it recognises that the decision belongs to the elected body rather than the technical department, because it involves weighing the private interest against the public interest in maintaining the planned pattern of the territory.

The first paragraph sets out the general case. A permit in derogation from general planning instruments is issued exclusively for public buildings and installations or those of public interest, following a resolution of the municipal council and in compliance with the code of cultural heritage and landscape.

The second condition concerns building restructuring. An application is also admitted for building restructuring works, following a resolution of the municipal council attesting their public interest, limited to the purposes of urban regeneration, of limiting land take and of the social and urban recovery of the settlement. For retail developments the specific legislation the article refers to continues to apply.

The difference between the two conditions deserves attention. In the first the public interest lies in the nature of the works, which are public or of public interest. In the second the works may be private, and the public interest must be attested by the municipal council in relation to specific and exhaustive purposes the rules list.

The third paragraph delimits the scope with a closed formula, and that closure is the decisive element of the whole mechanism. The closed nature of the list is the decisive feature of the mechanism.

The derogation, subject to compliance with health, hygiene and safety rules, may concern exclusively the limits on building density, on height and on separation distances between buildings set by the implementation rules of general and detailed planning instruments, together with the permissible uses, subject in every case to compliance with the planning standards provisions the rules refer to. No other parameter falls within the scope.

Subject	Capable of derogation
Building density	Yes
Building height	Yes
Separation distances between buildings	Yes
Permissible uses	Yes, within the limits provided
Zoning designation	No
Health, hygiene and safety rules	No
Planning standards referred to by the rules	No
Requirement of prior approval of implementing plans	No

The last row deserves a note, because it is the one practice overlooks. Case law has held that a permit in derogation cannot be issued where it conflicts with planning rules and requirements other than those on density, height and distances, such as those on the mandatory prior approval of implementing planning instruments.

On one point the judgments are consistent and recent: a derogation cannot turn into a planning variation. A derogation remains a specific decision and not a planning instrument.

The provisions on the permit in derogation are to be construed restrictively, and derogations cannot override the planning requirements embodied in the plan. Zoning designations, which go to the underlying structure of the planning, therefore cannot be the subject of a derogation.

A recently decided case illustrates the difference. A retail development in an agricultural zone was held not to be approvable by permit in derogation, since it required a planning variation: the proposal did not affect a building parameter but the underlying planning choice as to the use of the area.

The operational test that follows is useful when advising. If the project requires the zoning designation attributed to the area by the planning instrument to be changed, the route is not a permit in derogation but a variation. If it requires a departure from a building parameter within a compatible designation, the permit in derogation is the instrument.

The sequence differs from that of an ordinary permit in two respects. Both involve the municipal council.

Notice of the commencement of the procedure is given to interested parties under the general rules on administrative procedure. Any observations submitted by interested parties are assessed by the municipal council, the only body competent in that respect, which must give reasons in addressing them.

The council resolution precedes issue and is the moment at which the weighing of interests takes place. One practical element should be known: where the department establishes at an early stage that there are binding impediments, such as conflict with non derogable implementation rules or the failure to service the area, the procedure may be closed before the head of department without referring the matter to the council.

Since the decision is discretionary, the quality of the case the private party presents bears on the outcome more than in a mandatory procedure. The supporting material must be built for the resolution.

Three elements make a strong application. Demonstrating that the subject of the derogation falls within the closed scope of the third paragraph, parameter by parameter. Demonstrating the public interest, referred to the purposes the rules list rather than asserted in general terms. Demonstrating that no other non derogable planning requirement is breached, which is the check on which applications most often fail.

To these it is worth adding an informal preliminary discussion with the technical department, because a binding impediment identified before filing avoids a procedure destined to be closed. An obstacle surfacing late costs the whole procedure.