Building abuse: private agreements cannot derogate the distances between buildings


Emma Potter

Legal distances between buildings represent a crucial issue in construction, regulated by strict regulations to avoid abuse and guarantee correct urban development.

The recent sentence no. 65/2023 of the Liguria TAR reiterated theobligation to respect these distanceseven in the presence of agreements between neighboring private individuals.

What are the implications of this decision for property owners? What are the risks of ignoring these rules?

No exceptions for private agreements

The Liguria Regional Administrative Court, with sentence no. 65/2023, clarified that the legal distances between buildings cannot be waived through agreements between private individuals. This decision confirms that failure to comply with minimum distances constitutes building abuseregardless of any agreements between the interested parties.

The judges underlined that these rules are intended to guarantee not only fair neighborly relations, but also respect for urban planning.

The ruling is based on art. 9 of the interministerial decree of 2 April 1968, n. 1444, which clearly specifies the minimum distances between buildings.

Article 9
Distance limits between buildings

The minimum distances between buildings for the different homogeneous territorial areas are established as follows:
1) Zone A): for conservative rehabilitation operations and for any renovations, the distances between buildings cannot be less than those between pre-existing built volumes, calculated without taking into account additional constructions of recent times and worthless historical, artistic or environmental;
2) new buildings in other areas: the absolute minimum distance of m is prescribed in all cases. 10 between window walls and walls of buildings in front;
3) Zone C): a minimum distance equal to the height of the tallest building is also prescribed between windowed walls of buildings in front; the rule applies even when only one
wall has windows, if the buildings face each other for a development greater than m. 12.
The minimum distances between buildings – between which roads intended for vehicle traffic are interposed (with the exclusion of dead-end roads serving individual buildings or
settlements) – must correspond to the width of the road increased by:
ml. 5 per side, for roads less than 1000 meters wide. 7;
ml. 7.50 per side, for roads with a width between m. 7 and ml. 15;
ml. 10 per side, for roads wider than 1000 metres. 15.
If the distances between buildings, as calculated above, are lower than the height of the tallest building, the distances themselves are increased until they reach the measurement corresponding to the height itself. Distances smaller than those indicated in the previous paragraphs are permitted in the case of groups of buildings which are the subject of detailed plans or subdivisions agreed with planovolumetric forecasts.

The objective of these provisions is to avoid harmful cavities and ensure adequate free space between buildings, thus promoting a healthy and orderly urban environment. Furthermore, this legislation aims to prevent conflicts between neighbors and maintain an aesthetic and functional balance within residential areas.

The case of the portico

The case dealt with by the Liguria TAR concerns the positioning of a portico in violation of the legal distances. The owner, after having built the portico without permission, subsequently requested the building permit under the amnesty.

The Municipality rejected the request because the portico did not comply with the minimum distance of 5 meters from borders. The appellant argued that the Municipality should have requested the consent of the neighbor to keep the work in its current position, arguing that the distance rules could be waived by private agreement.

However, the Liguria TAR rejected this thesis, reiterating that the rules on distances are mandatory and that any construction in violation of these rules constitutes building abuse.