The sequence of time limits
| Stage | Time limit | Requirement |
|---|---|---|
| Commencement | 10 days from filing | Notification to the applicant of the officer responsible for the procedure |
| Review | 60 days from filing | Conduct of the review and formulation of a proposed decision with a report |
| Decision | 30 days from receipt of the proposal | Adoption of the final decision by the head of department |
The two substantive limits together give ninety days from the filing of the application. This is the period for concluding the procedure, and administrative case law refers to it as the deadline by which the authority must express itself.
The rules provide that the period may be extended in the cases the provision identifies, including particularly complex projects, and this should be checked against the text in force and the regional rules. The extension is not discretionary but tied to defined situations.
The single interruption allowed
This is the least known rule and the most useful in practice. It concerns the interruption of the periods.
The sixty day review period may be interrupted only once by the officer responsible, within thirty days of the filing of the application, and exclusively for a reasoned request for documents supplementing or completing those filed. That single interruption is the applicant's main safeguard.
Three elements of that wording carry immediate operational value. The interruption is unique: a second request for further information does not restart the period again. It is time bound: it must be made within thirty days of filing, not at any point in the review. It must be reasoned and must concern supplementary documents, not a reappraisal of the design on its merits.
The consequence is that the quality of the initial filing governs the timescale structurally. A complete file puts the procedure on a ninety day track; an incomplete one suffers the interruption and restarts, but with the assurance that this cannot happen again.
Administrative silence
If the head of department does not issue a reasoned refusal within the period, tacit consent is deemed to have formed on the application. The mechanism is provided by article 20 and operates as a means of concluding the procedure in the event of inaction.
The exclusion is significant, however, and should be known before relying on the mechanism: tacit consent does not operate where environmental, landscape or cultural constraints apply. Tacit consent does not operate where constraints apply.
There is also a form of tacit refusal. Where the property is subject to a constraint whose protection does not fall to the municipality, the office obtains the relevant assent through a conference of services, and where the outcome is unfavourable a tacit refusal is deemed to have formed on the application.
One procedural point: the expiry of the periods with formation of tacit consent may be the subject of a request for attestation to the authority, and this is the route practice follows to make a tacit consent documentable as against third parties. Attestation of the tacit consent may be requested from the authority.
The divergence in case law
On one aspect case law is not aligned, and knowing the disagreement exists is more useful than ignoring it. Knowing the disagreement exists is more useful than ignoring it.
One line holds that tacit consent forms on expiry of the period even where the activity applied for does not comply with the rules, on a rationale of protecting the citizen against administrative inaction. A different line makes formation of the tacit consent conditional on all the requirements and conditions the rules impose being present.
In either case the power of annulment on the authority's own motion remains, within the limits and on the conditions of the general rules on administrative procedure. A tacit consent is therefore not final.
The practical implication is one of caution. Programming a site on the formation of a tacit consent, in a situation where compliance is not fully documented, carries a risk that the more favourable line does not remove.
The sub procedures that add to it
The ninety days concern the building procedure. Where the property is subject to constraints, other authorities come into play with their own timescales.
Landscape authorisation follows the procedure of the code of cultural heritage and landscape, with time limits and stages before the heritage authority. Seismic requirements follow the regional rules, which in some areas provide for prior authorisation rather than a filing. Other assents may be required depending on location and on the nature of the works.
These procedures neither replace the building procedure nor are absorbed within its time limits: they add to it. Realistic programming of work on a protected property therefore starts from the longest sub procedure and not from the ninety days of article 20.
The two gaps that generate most requests
Since the interruption is unique but costly in time, it helps to know where it concentrates. Requests recur on a limited set of documents.
Documentation of the lawful status of the existing building is the first. On work to existing properties the review checks that the design is grafted onto a regular situation, and the designer's declaration alone does not serve where the earlier consents are not attached or are incomplete. On properties with a convoluted building history the archive search should be started before rather than during the procedure.
The assent of other authorities is the second. Where the property is subject to constraints, a filing that does not show the accessory applications have been started invites a request for further information, and where the constraint does not fall to the municipality the procedure passes through the conference of services with the tacit unfavourable outcome the rules provide.
To these is added, less frequently but with similar effect, consistency between drawings, report and parametric checks, which is the most immediate control the reviewer performs. Inconsistency between documents is a recurrent ground for a request.
Programming the site
Three points follow from the above.
Accessory applications should be started in parallel rather than in sequence. Waiting for the permit before applying for landscape authorisation adds the periods together instead of overlapping them.
The site start date should not be given to the client on the basis of the statutory time limits, but on the basis of the longest of the periods engaged, with a margin for the single interruption allowed. It should be built on actual timings, including interruptions.
The completeness check on the file should be carried out before filing, with particular attention to documentation of lawful status and to the assents, which are the two gaps generating the most requests for further information. Documentation on constraints deserves particular attention.
The most frequent errors
Relying on tacit consent where constraints apply is the first, and ignores the express exclusion the rules provide. The express exclusion in the rules is thereby ignored.
Treating a request for further information as a neutral event is the second. It is a single occurrence event, and knowing that limit allows any later requests to be resisted firmly.
Programming the sub procedures in sequence is the third, and produces schedules that add up periods which could have overlapped. Schedules end up adding periods that could run in parallel.
Starting work on an unattested tacit consent is the fourth, and leaves the project without a document enforceable against third parties. The project is left without an enforceable document.
Note: the legislative references in this page relate to Italy and are current as at the date of publication. Time limits may be extended in the cases provided and the rules are subject to regional adaptation: the text in force, the regional legislation and the municipal building regulation should be checked before any operational use.