The Exemption from Concession Fees for the Construction of Public Interest Buildings

Council of State, Section IV, 7 June 2021 no. 4350

The Supreme Administrative Court ruled on the issue regarding the non-payment of the construction contribution for buildings of public interest.

The case originated from an appeal, which was upheld by the Regional Administrative Court of Tuscany, whereby a well-known restaurant group had obtained the annulment of the municipal resolution for the payment of the concessionary fees relating to a building constructed within a motorway service station, considering that, according to the Judge of First Instance, all the elements that exempted the company from the payment of the construction fees for the issuance of the building permit had been integrated, pursuant to the provisions of Article 17, paragraph 4 of Presidential Decree 380/2001.

In particular, it was considered that (i) the building was intended to provide a public service and (ii) it was part of the public nature of the State property to which it was connected (the motorway).

In the subsequent appeal, the losing municipality requested the reform of the above-mentioned judgement, observing that the building in question could not be considered –  both from an urban planning and functional point of view – as  property belonging to the State, even though it was built on State land.

In this context, the Judges of Palazzo Spada, after considering that “the administrative jurisprudence is oriented in the sense that the payment of concessionary fees represents  the general rule, with a consequent restrictive interpretation of the exceptions for the hypothesis of the construction of public works or works of general interest”, concluded that:

(i) although the building was intended to be acquired by the Grantor at the expiry of the concessionary relationship, such circumstance was not ex se sufficient to establish the direct nexus with the public interest required under Article 17, paragraph 3 of Presidential Decree 380/2001 in order to legitimate the exemption from payment, since the work had to be considered in any event instrumental to a commercial interest of exclusively private relevance;

(ii) the location of the building on State land does not determine its public nature. Consequently, the building in question could not be included among State properties, and, therefore, the condition for the application of Article 17 paragraph 4 of Presidential Decree 380/2001 no longer applies.

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