Abuso edilizio e danno paesaggistico-ambientale. Diritto e prassi nell’azione risarcitoria

L’abuso edilizio se commesso su un’area demaniale ovvero su suoli tutelati sotto il profilo ambientale e/o paesaggistico poiché modifica la preesistente condizione naturale o semplicemente perché esclude la “razionale gestione e il miglioramento delle condizioni naturali”, determina la lesione di un interesse collettivo, la perdita o la riduzione di un precedente o possibile futuro livello di benessere, in pratica un danno. A partire dall’analisi dell’evoluzione dei sistemi di tutela giuridica, distinguendo l’oggetto della tutela se l’ambiente o se il paesaggio, è approfondito, anche con riferimento alla lettura operata dalla dottrina e dalla giurisprudenza, il tema del risarcimento del danno da abuso edilizio. In particolare l’attenzione è rivolta ai casi nei quali sia previsto un risarcimento per equivalente. Con riferimento a queste residuali fattispecie e tenuto conto della peculiarità dell’illecito in oggetto, l’abuso edilizio, il lavoro propone soluzioni estimative coerenti con l’impianto normativo e giurisprudenziale. Summary Building illegaly and landscape-environmental damage. Law and practice in actions for compensation. Building illegaly if committed on a state-owned area or environmental and/or landscape protected land because it modifies the natural pre-existing condition or simply because it excludes the "rational management and improvement of natural conditions", causes an infringement to the collective interest, the loss or reduction of a previous or probable future level of well-being, practically a damage. The crime of building illegaly and the environmental-landscape one, although both are similar criminal cases, are prosecuted by the law in a different way due to the different legal objects involved. On one hand, the criminal and administrative action against environmental crime is intended to protect the landscape and the environment, i.e. "material” assets, on the other hand, the rules against building illegaly protects instead the respect for an abstract asset, namely the administrative usage of the land. So the being of environmental-landscape asset states as the essential criterion of sanction system the restoration of places to their previous conditions, with the demolition of illegal buildings, which represents one of the possible penalties. Unlike criminal sanctions, as far as the administrative action, it should be noted that in the presence of an unauthorized transformation of the territory within protected areas may be subject to different conditions and actions for damages. The analysis of the law and practice on the subject of compensation for the damage of landscape-environment resulting from construction-related unlawful conduct, firstly has allowed us to highlight the fundamental differences introduced by the latest legislative changes to the system of land protection in our legal system. First of all, the difference in the pay back for damages when the damage is caused to the environment or to the landscape. Even though the concept of 'environment' includes in its meaning also the 'landscape' one, the Italian legislation in line with the prevailing tradition of our legal experience reaffirmed the autonomy and the conceptual difference of Nature Conservancy, placed in the orbit of cultural heritage protection, compared to the distinct profile of environmental protection. If we compare the two safe keep systems, we observe first of all that the Environmental Code does not logically differentiate the anthropic action that produces the damage, while building illegaly constitutes wrongful abuse and that is what the legislation takes care of it. The different scope of the law also determines the different specification of the measures envisaged for the compensation. On the subject of environmental protection, Building illegaly, produces a harm that may be considered recoverable or non-recoverable (in whole or in part). The recoverability of the damages refers to the possibility, through appropriate measures, to restore the conditions existing before the damage occurred. From this classification arises the subsequent action for damages, which in turn stands in the specific form (unused in remission) or equivalent (monetization). The focus on the matter is particularly addressed to cases in which there is a compensation for an equivalent damage. For the damages to the environment the total or partial non-recoverability is a residual hypothesis that can be materialized, in case of building abuse, when the demolition is not economically convenient from a comparative evaluation between benefits and social costs that the demolition would imply. Given the impossibility of enforcing the technical feasibility of the intervention – the demolition of a building is always technically possible-, the overcharging is the additional criterion that the law refers to for the recognition of non-recoverability and the consequent obligation of compensation for an equivalent damage. In the case of building illegaly the excessive burden to restablish the previous conditions can only be solved based on the economic affordability and certainly not on the financial worth of the building. It is in this case that the problem arises on the evaluation of the monetary damage. The work based on what is indicated by the law provides some guidance on the definition of the criteria to use for the determination of an equivalent damage. In particular, it has been proven that the cost of recovery and the profit gained are criteria that define a minimum of the equivalent damage. It is also proven that building illegaly differs from other types of offence (e.g., waste disposal) and so applying such criteria (cost of demolition and profit achieved with transformation) allows an exact determination of quantum. Taking into account the uncertainty in assessing the damage through the use of models that are based on individual preferences, it is appropriate that indentifying the criteria for determining the equivalent in the case of building illegaly, the legislator or a judge estimates a sanction not less than the amount of the cost of demolishing the illegal buildings and the profits generated by the offence. In the current regulatory system for the protection of the landscape, due to the particularity of the crime, meaning building illegaly, the restoration to the previous conditions is the only form of compensation contemplated. The problem of a monetary quantification of the damage happens only in case that the offence is subsequently declared landscape compatible. Also for these cases, criteria for damage estimation have been identified that are more coherent to the changing regulatory requirements. The element on which to base the action for damages is not, in fact, the recoverability of the damages but the financial advantage generated by the illegality. In particular, as a result of severe restrictions imposed by the amended regulation on possible building interventions admitted to a compatibility judgment, the offender advantage cannot be identified as a difference between profits and costs. The Result would probably be void. The advantage obtained by building illegaly is therefore determined by the costs avoided by the offender, in other words from the financial resources that the wrongdoer would have to incur to avoid damage and/or to follow the law, and who has saved or invested in another way. The missing expenditure therefore corresponds to the difference between building works cost that prior landscape permission would have or had allowed (use of materials and/or technology) and work cost as they are really performed in the absence of authorization or discrepancy on it