Retrospective compliance assessment: articles 36 and 36-bis

Article 36 of the code is the historic route and concerns the more serious breaches. Its condition is stricter than the one introduced in 2024.

The condition is dual compliance: a retrospective consent may be issued where the work complies with the planning and building rules in force both when the breach was committed and when the application is filed. The test must be run against two distinct moments in time.

This requirement is the real practical obstacle in this field, and not for technical reasons. Planning instruments change over time: work that complied when built may not comply today, and the reverse also occurs, and in both cases dual compliance fails.

Procedurally the head of department must decide with adequate reasons within the period provided, on expiry of which the application is deemed refused. This is a negative silence regime, the opposite of that applying to an ordinary permit.

The oblazione, the settlement payment, is measured against the development contribution in the manner the article provides, with amounts differentiated between new construction and restructuring on one hand and rehabilitation works on the other, and with statutory minimum thresholds. The amounts differ according to the situation.

Article 36-bis was introduced by Decree Law 69 of 2024 and amended by the converting Law 105 of 2024. Its heading itself records the widening that occurred on conversion: from retrospective compliance assessment in cases of partial non conformity to retrospective compliance assessment in cases of partial non conformity and material variations.

Its scope today covers three groups of situations. None of the three covers works lacking the original consent.

Works carried out in partial non conformity with a permesso di costruire or with a certified notice, in the situations of article 34. Partial non conformity is the premise of the regime.

Works carried out in the absence of, or departing from, a certified notice in the situations of article 37, meaning works subject to a simple notice such as heavy extraordinary maintenance and conservative restoration and light building restructuring. The regime applies only to the cases specified there.

Material variations governed by article 32 and by regional statutes. Regional rules complete the definition.

The time limit is defined: the application may be filed up to the expiry of the periods provided by article 34 paragraph 1 and in any event until administrative sanctions are imposed. Standing belongs to the party responsible for the breach or to the current owner of the property.

Here lies the substantive change. Article 36-bis does not require the symmetrical dual compliance of article 36.

The test is asymmetrical: the work must comply with the planning rules in force at the time the application is filed, while the reference to the building rules looks to the time of construction. Compliance must be established against rules from two different periods.

The practical effect is considerable. Work that complies today in planning terms can be regularised even where the planning instrument was different when it was built, a situation which under article 36 alone would have barred retrospective consent.

It should be stressed that this is not an amnesty. The stated objective is not to pardon breaches but to rationalise procedures for works of limited extent, and the requirement of current planning compliance remains full.

The retrospective consent varies with the gravity of the situation. Classification therefore precedes the choice of procedure.

Situation	Consent
Partial non conformity with the consent	Certified notice for retrospective consent
Absence of or departure from a notice, article 37 situations	Certified notice for retrospective consent
Material variations	Permesso di costruire on retrospective compliance assessment

Issue of the consent is subject to payment of an amount by way of settlement, and the rules provide two alternative calculation bases depending on the situation. The rules provide two alternative bases of measurement.

The first basis is measured against the development contribution: an amount equal to twice the contribution, or, in cases of statutory exemption, determined at the level provided by article 16 increased by 20 per cent, for works in partial non conformity with a permesso di costruire and for material variations. The amount doubles relative to the ordinary contribution.

The second basis is measured against value: an amount equal to twice the increase in the market value of the property, as assessed by the competent offices of the revenue authority, determined by the officer responsible within a statutory floor and ceiling. The floor is 1,032 euros; the ceilings differ according to the situation and should be verified against the text in force, because secondary sources report them inconsistently.

On this point the recommendation is firm: the settlement amount should not be estimated to the client on the basis of a secondary source, but calculated on the text of the article and checked against the practice of the competent office. The amount should be requested from the authority, not derived from secondary sources.

Article 36-bis provides a period for the authority to decide, to which is added, where constraints apply, the binding opinion of the heritage authority with its own period. Where constraints apply the period is longer.

Where no decision is taken within the periods, the principle of tacit consent operates, with power for the municipal office to proceed on its own. Case law has clarified that tacit consent forms on expiry of the procedural period and produces authorising effects, without precluding the authority's later exercise of its own motion review powers within the limits provided.

The regime is therefore the opposite of article 36, where silence amounts to refusal. It is one of the differences bearing most on programming a project.

For cases of landscape incompatibility the procedure operates only where the landscape constraint came into being after the works to be regularised were carried out. The later arising of the constraint is therefore a condition and not a detail.

On one point the judgments are already settled and it is worth knowing before framing an application. It concerns how the non conformity is classified.

Article 36-bis expressly confines its application to works carried out in partial non conformity with a permesso di costruire or with a certified notice. It therefore does not apply to works that were inherently without the consent they required.

The clarification has an immediate practical reach. In a recently decided case the presence of a certified notification was held to be irrelevant, since the work carried out could not have been authorised by that notification: the works lacked the permit they required, and the situation remained outside article 36-bis.

A method rule follows. Classification of the non conformity precedes the choice of route, and the classification must be carried out against the consent the work would have required, not the one that was filed.

The subject falls under shared competence and reception has not been uniform. Some regions have received article 36-bis with adaptations to their own rules, Sicily by a regional statute of 2024.

Checking the regional legislation in force is therefore an obligatory step rather than an incidental control, because both the scope of material variations and the application arrangements may differ. Regional statutes complete the definition of material variations.

The choice is not discretionary, but reading them side by side helps to classify a case correctly. The two regimes rest on conditions that do not overlap.

Aspect	Article 36	Article 36-bis
Situations	More serious breaches, including absence of consent	Partial non conformity and material variations
Compliance required	Full dual compliance, then and now	Attenuated, planning compliance at the date of application
Consent produced	Permesso di costruire for retrospective consent	Certified notice or permit on assessment
Silence regime	Refusal	Consent on expiry of the periods
Settlement basis	Measured against the development contribution	Twice the contribution or twice the increase in market value
Time limit for the application	Until sanctions are imposed	Until the article 34 paragraph 1 periods and sanctions being imposed

The row on the silence regime bears most on programming. Under article 36 administrative inaction closes the file negatively and requires remedies to be pursued; under article 36-bis it produces an authorising effect, with the own motion review power remaining.

Treating article 36-bis as a general amnesty is the first, and ignores the exclusion of works lacking the required consent. The exclusion of works lacking the original consent is thereby ignored.

Classifying the non conformity against the consent filed rather than the one required is the second, and is the error case law has already penalised. It is the error case law censures most often.

Assuming the article 36-bis tacit consent also applies to article 36 applications is the third, where silence instead amounts to refusal. Under article 36 silence carries a different meaning.

Estimating the settlement from secondary sources is the fourth, and produces cost forecasts the office contradicts. The authority then contradicts the cost forecast.