01 Jun illegal subdivision

The crime of illegal development is carried out through conduct, including material ones, such as building or urban planning modifications to the land, in an area that is not adequately urbanized, which gives a portion of the municipal territory a different structure, that is carried out without authorization, or in total divergence from it, and in violation of the provisions established by the urban planning instruments in force or adopted, and such as to be able to determine the settlement of inhabitants or the carrying out of activities, resulting in the need to prepare or integrate urbanization works (Cass. Pen., sez. III, judgment 30 April 2004, n. 20390). The notion of illegal development is twofold, that is, substantial and formal, and the first case may well arise regardless of whether the subdivision is authorized or not. When the judge, therefore, recognizes the existence of a hypothesis of illegal development – even in the presence of an authorization issued pursuant to art. 28 of the L. n. 1150/1942, which however is in conflict with legal or plan provisions – there is no disapplication of the administrative measure, but it limits itself to ascertaining the conformity of the concrete fact to the abstract descriptive case of the crime, so long as, once you notice the conflict between the subdivision considered and the urban planning regulations, arrives at ascertaining the illegality of the subdivision regardless of any judgment on the authorisation (Cass. Pen., SS.UU., judgment 28 November 2001, n. 5115). The building and urban transformation of the territory that gives rise to illegal subdivision can be achieved by giving a different layout to a portion of it, in ways that are not possible even through the preparation of an implementation plan, (..) that is, by implementing an activity aimed at and suitable for distorting the planning of the use of the territory itself as outlined by the general urban planning instrument, therefore any reference to the impact of new buildings on the existing state of urbanization must be considered irrelevant. Any qualifying title that may arise legitimizes only the building work that constitutes its object, but it does not involve any assessment of conformity of the entire subdivision with the general urban planning choices. Therefore, even the issuing of a plurality of building permits in the area affected by an illegal development does not make an activity lawful which is not: the concession does not have, indeed, an instrumental urban planning function of land use (Cass. Pen., sez. III, judgment 5 March 2008, n. 9982). The legislator, stating in the last paragraph of the article 18 of the L. n. 47 of the 1985, reproduced in the last paragraph of the article 30 of the consolidated construction law, that "the above provisions" i.e. those of the previous paragraphs, are not applicable, among other acts mentioned therein, to hereditary divisions, did not intend to absolutely exclude the possibility of a deed subdivision in the presence of an inheritance division deed, but it only wanted to establish that the symptomatic indices of the subdivision referred to in the first paragraph of the article are not applicable to these legal acts 18. The legislator considered that the family nature of these divisions protected them from the speculative intent of those who want to create a subdivision. In reality, even an hereditary division can mask an illegal land development. Then, But, the parcelling intent, when divisibility is permitted by law and is not inconvenient, it cannot be deduced from simple fractionation, which can be determined exclusively by the need to dissolve the hereditary community, but a quid pluris is needed that highlights the desire to subdivide (Cass. Pen., sez. III, judgment 28 September 2005, n. 38632).