Administrative, Town Planning, Regulations, Disapplication, Council of State, II, Judgment of 09.01.2020 n. 219

Regulations – Disapplication – Conditions – Identification.

The non-application by the administrative judge of the secondary regulation for the purposes of deciding on the legitimacy of the contested administrative provision is a tool for resolving the antinomies between sources of law which is based on the principle of graduation of the strength of the various regulatory sources all abstractly applicable and, therefore, presupposes that the precept contained in the regulatory provision is in direct contrast with that contained in another source of a higher degree.

There is no conflict between provisions of different rank that must be resolved through the non-application of the antinomal regulatory provision with respect to the primary legislation if the contrast between primary and secondary provisions does not concern the regulatory precept upstream of the contested provision, but the system of competences (in the present case, the possibility was discussed for the building regulation of a municipality, equipped with a regulatory plan, to attribute to the building commission the function of adopting opinions also on the architectural value, decorum and setting of the works despite this thesis, it would not have been allowed by art. 33 of the town planning law).

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