With No quick decision 484 filed in Court on February 10, 2011 , the second section of the TAR Lombardia, Milan, declared inadmissible the action brought by companies and supervision against a demolition order and referral in pristine art. 31 TU as a result of the abuse Construction build a swimming pool, decorative pond instead of authorized, within the buffer zone of a cemetery. While the owners had appealed against the refusal to be self-amnesty that the next order of demolition, construction company and site management, we were determined to challenge the second sentence after the receipt by criminal courts, challenges to this view.
The decision stands for completeness of the grounds, made with reference to the order of demolition or refusal of conformity assessment, excluding in both cases the legitimacy of business and construction management to appeals . The Board has raised
office the exception of the appeal inadmissible, for lack of interest in the use of instant , based on the fact that the contested order was basically directed exclusively to the owners, requiring them scrapping and restore the state of places and looked forward to, always at their own expense, in case of default, the acquisition of the abutments of the artifacts and related works.
No appreciable utility is therefore apparent to the appellants - which, also recipients of the measure, feared consequences of sanctions in terms of possible ban on participation in tenders and / or discreet professional - in case of any annulment of the contested , either directly or indirectly, being able to retain the same " the right to defend their actions in any professional liability judgments before the ordinary courts, the latter being able, if necessary, set aside - incidentally - the condition may be considered unlawful administrative measure ".
For reasons of completeness, the Board considered it appropriate to specify how also compared to measure tacit refusal of amnesty " the prevailing attitude in law be inclined to exclude the locus standi of the project manager and the firm executor of the same ", the same as the second section had the opportunity to clarify (see, most recently, the ruling TAR Lombardia, Milan, Sec. II ^ 28/01/2011 n.265) stating" that the standing to challenge provisions relating to building work belongs only to those who hold legitimate interest differential, and that they do not fall between the designer or company executing the project, however, hold a narrow self-interest or simply the realization of the work done under the project, so they can not appeal against the refusal of an autonomous building permit, or punitive measures under Article . 31 cited. But only to propose intervention "for lent" in the proceedings instituted by his principal owner (see, ex multis, TAR Emilia Romagna, sez. Parma, 02.10.2010 No 61; TAR Toscana Florence, sect. II, 05 June 2009, No. 986; TAR Sicilia Catania, sec. I, March 6, 2001, No. 523, TAR Piemonte, sec. I, June 18, 2003, No. 924 and State Council, sect. V, 5 March 2001, No 1250) .
survives an interest, neppure morale, in capo al professionista progettista , all'impugnazione del diniego di intervento edilizio, richiesto da un terzo e respinto dal comune, " anche nel caso in cui si trattasse di errore di rappresentazione progettuale, in quanto tale diniego inciderebbe sullo "ius aedificandi" e non sull'esercizio della professione del progettista, né sulle sue qualità e il suo prestigio, che non possono reputarsi chiamate in causa da un rilievo tecnico operato dall'amministrazione per uno scopo del tutto diverso, cioè il perseguimento del corretto uso del territorio (così, specificamente, TAR Toscana, Firenze, n. 986/2009 cit.) ", vero che " l'eventuale annullamento dell'atto produrrebbe effects only on the legal position of the applicant and building on its inherent power, but does not alter or add to the professional skills of the designer himself (TAR Liguria, sec. I, March 17, 2006, No. 251) .
The sentence No 484/2011 of the Court of Lombardy, Milan, sect. II, is available on the Administrative Justice to address this .
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