Swimming pool in a restricted area: even if appurtenant, landscape authorization is required

Urban relevance

From an urban planning point of view, administrative jurisprudence has dealt on many occasions with the question of the qualification of the swimming pool, highlighting that the concept of urban relevance is narrower than the civil one and is applicable only to works of modest size, which are accessory to a main work and not to those which, from a point of view of size and function, are characterized by their own autonomy with respect to the main work and are not coessential to the same(1).

Therefore, it is not only necessary to consider the functional relationship of ancillary nature with the main thing, but also the characteristics of the work itself in terms of the autonomous urban planning impact on the territory, the absence of autonomous destination of the appurtenant building, the impact on the urban planning load and the modification to the territorial structure (2).

Urban relevance must, therefore, be understood in a restrictive sense, as it refers only to works of modest size and accessory to a main work, such as for example small artefacts for the containment of technological systems and the like, but not also works which, from the point of view of size and function, are characterized by their own autonomy with respect to the so-called main work and susceptible to different economic use, as they are equipped with a independent market value(3).

The appurtenant swimming pool

In line with the restrictive notion mentioned above, the nature of urban relevance of a swimming pool has been recognized only when it does not have significant dimensions and has been built in a private property as an exclusive complement to the same(4), as in the case of a swimming pool simply placed on the ground surface, without the use of building material capable of transforming or affecting with invasive force the layout of the land, of modest dimensions, with a purposeful connection with the main building (5) or in the case of a swimming pool (even in-ground) with a volume less than 20% of the volume of the main house (6) or, again, in the case of a swimming pool 10 m long and 3 m wide. and 1.20 m high, intended for the exclusive use of the main building, since, not being susceptible to independent use and/or exploitation, they do not increase the urban planning load(7).

In other cases, however, the swimming pool was generally considered a new construction(8), due to the significant impact on the places and its autonomy.

The Salerno judges have qualified in appurtenant terms an appurtenant underground swimming pool (of type a skimmers) having a trapezoidal shape, with a length of 5.12 – 5.06 m, width of 1.60 – 2.39 m, depth of 1.20 m, and a tank surface of 10.10 m2; in this specific case, the project also involved the construction of a small technical room (prefabricated type 100x100x100 cm) completely underground and with an inspection hatch covered with approximately 10 cm of layer of grassy ground and the installation of a balustrade made of glass sheets mounted on small steel uprights with a center distance of approximately 1.5 m and a height of 1 m from the walking surface, for a length of m 10.83 + 3.19.

The landscape relevance of a private swimming pool

According to the judges, the qualification in appurtenant terms of the swimming pool, in the present case, must be considered recessive, for landscape purposes, compared to its undoubted nature of significant volume in an area in which there is an absolute constraint of non-buildability (in the specific case, the area affected by the intervention was subject to all the provisions of the third part of the Code of cultural heritage and landscape as a result of the Ministerial Decree of 23 January 1954, it fell within the scope of the Sorrento Amalfi Coast PUT approved with LR 35/87 and was classified in part in zone 2 “Protection of centralized ancient settlements of the PUT”, in zone “A” of the current PRG).

In this regard, it was reiterated that all the works carried out on the area subject to restrictions have an undoubted landscape relevance, even if they are technical volumes – even if they are a possible relevance – since the protection needs of the area subject to landscape restrictions – to be subjected to prior evaluation by the competent bodies – may also require the state of the places to remain unchanged (i.e. preclude further modification).

And in fact, as stated by jurisprudence in the case of a swimming pool of mt. 4.20 x m. 8.70,”The work in question (…) determines the creation of volume, or the increase of those already created, this is because the notion of useful volume (as well as useful surface area) must be interpreted (in the light of the circular of the Ministry for Cultural Heritage and Activities no. 33 of 26 June 2009, as well as the prevailing administrative jurisprudence) in the sense of any building work that can be walked on and/or that can be exploited for any use, given that the concept of utility has a different meaning in the legislation on landscape protection compared to building regulations. In this sense, the ban on increasing existing volumes, imposed for the purposes of landscape protection, refers to any new work involving the creation of a volume, without it being possible to distinguish between a technical volume and another type of volume, whether underground or not (Council of State, section VI, 24 April 2017, no. 1907; id. sentences no. 3579/2012, no. 5066/2012, no. 4079/2013, n. 3289/2015). Once it has been ascertained that it is a volumetrically significant work, for the purposes relevant here, the qualification of the same in terms of petinentiality or not is withdrawn. And indeed, even if the swimming pool (underground or raised above the ground) could be considered an appurtenant work, its construction could not in any case qualify as an extraordinary maintenance activity, given that this consists of interventions aimed at ensuring the survival or even total restoration of already existing artefacts, all the more so that it can be qualified as external arrangement or building renovation, while it must be completely excluded that it can be classified as a precarious work… (Council of State, fourth section, sentence 13 June 2023, n. 5807)”(9).

Notes

(1) Council of State, sec. VI, sentence. 29 July 2022, n. 6685.
(2) Council of State, sec. II, sentence. 20 July 2022, n. 6371.
(3) Council of State, sec. VI, sentence. 19 May 2023, n. 5004.
(4) Council of State, sec. VI, sentence. 3 October 2019, n. 6644.
(5) Council of State, sec. VII, sentence. 18 February 2025, n. 1376, according to which “A swimming pool simply placed on the ground surface, without the use of building materials capable of transforming or impacting with invasive force on the layout of the land, of modest dimensions, with a purposeful connection with the main building is not a new construction. The jurisprudence is therefore applicable according to which the installation of a swimming pool of small dimensions, built in a private property as an exclusive complement to the same, not having real estate autonomy, must be considered as an appurtenance of the existing main building, being intended to serve it (Cons. Stato, Sec. VI, 3 October 2019, n. 6644). The tank, thus created, does not violate either the coverage indices or the standards, given that it does not increase the urban planning load of the area and that rooms for technological systems are always and in any case permitted (Council of State, section V, 16 April 2014, n. 1951). Having ascertained the appurtenant nature of the work, there remains no obligation for a specific building permit nor, much less, for landscape authorisation, given the unsuitability of the swimming pool to cause excavation of the land or alteration of the water regime.”.
(6) TAR Abruzzo, Pescara, sec. I, heard. 10 July 2024, n. 215: “A swimming pool, even underground, which does not exceed 20% of the overall volume, cannot be denied its appurtenant nature with respect to the main residence (see Regional Administrative Court of Palermo sentence 433 of 2019).
According to jurisprudence, in fact, “the installation of a swimming pool that does not have significant dimensions, built in a private property as an exclusive complement to the same, must be considered as an exclusive appurtenance of the existing property, being intended to serve it and (…) these considerations can only extend to the arrangement works and those concerning the service rooms” (see State Council, Section VI, 3 October 2019, n. 6644 and Sec. V, 16 April 2014, n. 1951)” (see also TAR Campania, Salerno, sentence no. 2407/2022).
The relevance, in addition to the modest dimensions, is characterized by an objective use of the main building: it is not susceptible to autonomous and separate use, and is of an accessory nature.
As for the dimensions, pursuant to art. 3 e.6) of Presidential Decree 380 of 2001, interventions that exceed 20% of the volume of the main building lose the relevance requirement; therefore, the jurisprudence, even recent, which refers the appurtenances to technical rooms or garden furniture does not appear to be acceptable, given that it would result in a repealing interpretation.
As for the objective constraint of accessory nature and functional dependence, in the absence of other elements (for example, construction of a swimming pool intended for the public and not for private use), it appears clear that the construction of a swimming pool in the open countryside would have no independent utility, so that this requirement cannot be easily denied, except in an abstract and apodictic way.
The characteristics of the relevance, on the building and urban planning level, do not determine whether or not a building permit is necessary to create it, but only the effect that the principal accessory sequitur, and in this sense article 3 e.6) of Presidential Decree 380 of 2001 must be interpreted, with reference to the relevances: they are not new construction interventions with autonomous relief, in the sense that their construction has no independent consideration on the urban and building level, therefore they follow the title and regulation of the main building to which they access; this means that, if the volume and type of main construction can be achieved in a given area, but a building permit is required, the swimming pool must be included in the request for a building permit but follows the absentability of the main building without adding the necessary volume.
All this, obviously, unless it concerns an area subject to landscape restrictions (as specified in letter e.6) cit.): in that case even the appurtenances take on autonomous importance, because they are suitable for impacting the landscape asset, which is different and additional to the mere urban planning and building structure.”
(7) TAR Basilicata, sec. I, heard. 8 May 2023, n. 268.
(8) TAR Lazio, Rome, sec. II excerpt, sentence. 31 August 2023, n. 13496, according to which a 120 m2 swimming pool is not a mere pertinence, taking into account its autonomous functionality, as well as its independent market value and its intrinsic ability to transform the territory in a lasting way; TAR Marche, section. I, heard. 21 July 2023, n. 487, according to which an in-ground swimming pool of 6 meters by 12 metres, with a maximum depth of 2 metres, cannot be qualified as mere relevance; TAR Puglia, Lecce, section. I, heard. 26 May 2022, n. 845, according to which an underground swimming pool having a total surface area of ​​approximately 62.50 m2. falls within the category of new construction interventions.
(9) TAR Campania, Naples, sec. III, sentence. 29 May 2025, n. 4116.