Pergotende with side closures: when do you stay in free construction?

The presence of lateral closing elements: the general principle

But what happens if suitable lateral elements are inserted to determine the closure? According to jurisprudence:

• “in the event that lateral infills suitable for creating volume are installed in the pergola, this is not a case of free building activity, but a real building permit is needed”(2);
• “The connotation of a pergola must also be excluded when the covering and/or perimeter closure present elements of fixity, stability and permanence, even for a limited portion.” (3).

From this the following general principle can be deduced: lateral closures are permissible and do not distort the nature of the pergola only if they are accessory, quickly removable and unsuitable, due to their characteristics, to create an enclosed space.

A recent concrete example

And in fact, the nature of pergotenda and its traceability within the framework of free building activity was reiterated by the Council of State, section. III, in the sentence. 23 September 2026, n. 7039, in front of the installation of “guide systems and lateral roll-up sheets suitable to allow the perimeter closure of the space below”: according to the judges, the presence of retractable side sheets that can be effectively and quickly removed constituted “symptomatic index of their accessory and precarious nature” and they contrasted “with municipal qualification in terms of stable building expansion”.

Side windows

The Council of State, section. VI, in the sentence. 27 January 2025, n. 607, stated that “the closure with the side windows, which can be opened and easily removed, does not undermine the external use of the space, of limited dimensions, thus delimited. In fact, the side windows do not make the structure lose its precarious nature nor do they transform the external space, as they only make it more liveable according to the indications developed by jurisprudence with reference to pergolas”.

The TAR Emilia-Romagna, Parma, section. I, in the sentence. 25 September 2023, n. 256, considered the nature of a pergola confirmed in front of thin vertical glass elements placed on the sides of the structure (qualified by the owner as windbreak doors) and which ran on tracks directly connected to it, which could be folded manually on themselves using a packing system. According to the judges, the complementary nature of the glass sheets with respect to the curtains above did not necessarily imply their suitability for the production of volume. The “packaging” therefore allowed us to exclude that it was a “closed space”, with the absence of a permanently configured closed space which, instead, would indicate the increase in volume and the need for the qualification. According to the TAR, the characteristic of packability had to be considered decisive with the consequence that the manufactured product maintained the characteristics of a free construction work(4).

Otherwise, the TAR Lazio, Rome, section. II bis, in the sentence. 4 August 2026, n. 14077, excluded the nature of a freely installable pergola in the case of closure on three sides “with fully opening package-type windows“; similarly, previously, the same section, in sentence 4 May 2020, no. 4581, had deemed an aluminum structure anchored to the wall and floor, closed on the sides by foldable and sliding glass panels not to be qualified in terms of a mere pergola, considering that the characteristics of the work determined a closure of the external space, suitable for creating an additional useful surface.

Plexiglas

The TAR Lombardy, Milan, section. II, in the sentence. 18 October 2023, n. 2376, held that a metal structure with an overlying sheet and plexiglass sheets bolted to the regularly installed wooden pergola, with consequent lateral closure, cannot be considered a mere pergola.

Aluminum and glass

The Liguria TAR, section. I, in the sentence. 20 December 2021, n. 1076, excluded the nature of a freely installable pergola in the case of a building closed laterally with aluminum and glass, elements considered suitable for stably closing the space, increasing the available surface and volume, determining an autonomous building organism.

Notes

(1) See, ex multisCouncil of State, sec. III, sentence. 17 February 2026, n. 1256: “The pergola or similar artefacts give life to a work which, due to its structural characteristics and the materials used, not only does not determine the stable creation of new useful volumes/surfaces, but must also be a light structure, not permanently fixed to the ground, substantially suitable for supporting a “tent” or a similar light covering, even in plastic material. In this regard, the following conditions have been developed: – it must, in fact, be a “tent” (in the aforementioned senses, therefore modern and adequate for the evolution of materials and aesthetic sense), or an element of protection from the sun and atmospheric agents, aimed at better use of the external space; the structure must represent a mere accessory element with respect to the covering tent, necessary for its support and extension; the covering and closing elements must not only be easily removable, but also completely retractable, made of plastic or fabric, in any case without elements of fixity, stability and permanence such as to create a closed, stably configured space that could alter the shape and façade of the “main” building. The work with the described characteristics therefore differs from the canopy in that it presents a lighter structure, not stably fixed to the ground and with a merely accessory function, consisting in the support and extension of the tent itself, presenting easily removable and completely retractable covering and closing elements (CdS, VII, 2.4.2025, n. 2834 and section IV n. 8199/2025)”.
(2) TAR Lazio, Rome, sec. II bis, sentence. 26 March 2019, n. 4030, recalling Council of State, sec. IV, sentence. 1 December 2014, n. 5934.
(3) TAR Marche, section. I, heard. 20 January 2020 n. 46.
(4) In this sense, the judges also recalled the ruling of 14 October 2019, n. 6979 of the Council of State, section. VI, which held that the retractable plastic pergola with sliding glass side panels that can be folded into a package does not present characteristics such as to constitute a significant building structure and therefore does not require a permit, given that the main work is not the frame itself, but the awning, as an element of protection from the sun and atmospheric agents, aimed at better use of the external space of the housing unit, with the consequence that the frame itself it qualifies in terms of a mere accessory element, necessary for the support and extension of the tent, and the latter, integrated into the load-bearing structure, cannot be considered a “new construction”, even where by hypothesis it is destined to remain constantly closed, given that it is made of plastic and retractable material, therefore it does not present characteristics such as to constitute a significant building organism, involving transformation of the territory; in fact, the covering and the perimeter closure that it creates do not present elements of fixity, stability and permanence, due to the retractable nature of the awning and the panels, therefore, due to the non-existence of a stably configured closed space, it cannot be spoken of as a building organism characterized by the creation of a new volume or surface.