Il permesso di costruire condizionato

The Council of State, in its decision, considered inadmissible the issuing of the building permit whose effectiveness has been made subject to a suspensive condition, future and uncertain consisting in reaching an agreement between the building permit owners and the neighbouring owners concerning the feasibilityof the construction. In particular, it has been pointed out that the nature of the no contractual establishment/assessment proper to the building permit would not allow the af xing, outside the cases expressly established by law, of a suspensive or resolutive condition. As regard that statement it wasintended to give an account of the debate offered by doctrine and case law in relation to therestricted characteror the discretionary character and tecnical-discretionary of the building permit. The issue of the admissibility of the conditions in the strict sense and the particular clauses in the building permit by means of an agreement between Public Administration and private parties has been addressed. The decision provided, also, the opportunity to conduct an analysis of the guidelines expressed by the jurisprudence with regard to the conditions in the strict sense, the particular clauses and the execution mode which may be applied to te building permit. Was analysed the position of the jurisprudence that assessing the legitimacy of the prescriptions contained in the conditions or in the particular clauses assess their proportionality. Finally, in order to the consequences relating to the illegitimacy of the condition, the solutions of the doctrine have been analyzed: the solution of the possibility of the partial annulment of the act, that is, the possibility of the annulmentullity of the only defective element - the condition – and the most rigorous solution that opts for the invalidity of the whole act.