Building a building by reconstructing it on the sedime of an existing one may seem like a simple intervention, but often hides technical and legal pitfalls. The question is more complicated if the property is located in a historic center, where each modification must respect very rigid urban and architectural constraints.
This is the case of a dispute that reached the Council of State, in which a resident challenged the approval of an implementation plan that provided for the demolition and reconstruction of an old rural building. The new building would have arisen in adherence to its property, according to a project approved through an alternative wake of the building permit. According to the applicant, however, the intervention violated both the minimum distances and the rules on volumetric calculation.
With the sentence no. 2477 of 25 March 2025the Council of State has clarified when and what conditions it is legitimate reconstruct in adherenceeven without the agreement between neighboring, offering an important reading of the urban planning rules in historic centers.
But when is it really possible to reconstruct “close” to another building? What limits must be respected? And what rights do those who live next to it?
Let’s find out in this study.
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The story: demolition, reconstruction and … controversy
It all began with the approval by the municipal council of an implementation plan of urban recovery which provided for the demolition of an abandoned rural building and the construction, on the same sedime, of a new single -family home.
The area subject to the intervention was part of the so -called “area A – nuclei of ancient formation”, where particularly restrictive urban planning rules apply, aimed at protecting the existing building heritage. The new building would have arisen in adherence to a bordering building, owned by a resident who, noticing the intervention in progress after the posting cartel, decided to challenge the implementation plan, the alternative trail to the building permit and the relative urban convention.
According to the applicant, the project violated several provisions of the municipal regulatory plan: the calculation of the gross floor surface would have included portions – such as arcades and lodges – that the legislation excluded; The minimum distances would not have been respected; And, above all, part of the intervention would have affected the valid buildingless areas.
The question thus transformed into a real legal battle, first in front of the TAR and then to the Council of State.
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Volumeties and arcades: what really matters in the SLP?
One of the central points of the dispute concerned the calculation of the gross floor surface (SLP)or the fundamental building parameter to determine how much volume can be reconstructed after a demolition. According to the applicant, the project would have unduly inflated the square meters available, including two arcades on the ground floor in the volumetric calculation which, according to him, had to be excluded on the basis of the local urban regulation.
The Council of State, however, confirmed the position of the Municipality: in that specific area of the country, the urban planning legislation allows the Tamponing of existing loggias and arcadesthat is, their closure with walls to transform them into internal spaces.
This means that, although not yet were buffered at the time of the request for intervention, those arcades were abstractly transformable in useful building volume, and therefore legitimately considered in the SLP. The fact that they had been condoned with regular building permit Over thirty years earlier he further strengthened the validity of the calculation.
In other words: if the regulatory plan allows to close a pre -existing porch, it is completely legitimate to count the volume for the purposes of the new construction, even if the rear -end collision has not been materially performed. An interpretation that favors efficiency and simplification, especially in historic centers where buildings are often the result of complex building stratifications.
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Build in adherence: when you can (even without consent)
Another strongly contested aspect concerned the construction in adherence to the neighboring building. The neighboring owner claimed that the new building should have compared the minimum distance of 3 metersprovided for by local urban planning rules, and that this construction would have requested an explicit Convention between Confinentinever stipulated.
But also on this point the Council of State considered the complaints unfounded.
According to the judges, the project provided for the construction in adherenceand not simply “on the border”, therefore the obligation to comply with the minimum distances nor the need for a written consent between the owners did not apply. The decision is based on article 873 of the civil code, which regulates the case of construction in adherence, based on the principle of building prevention: whoever builds first on the border establishes the conditions for the neighbor, who can then build in adherence.
In the case examined, the nearby building had already been built close to the border: this has legitimized the counterpart to carry out the new property in adherence, without the need for further authorizations. In addition, in historic centers, national regulations (such as Ministerial Decree 1444/1968) admit derogations from the distances to encourage the recovery of the compact urban fabric, provided that fundamental rights do not violate, which – according to the judges – did not happen.
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The final decision and its consequences
In light of all the assessments carried out, the Council of State – Fourth Section, with the sentence no. 2477 of 25 March 2025considered the entire accusatory system unfounded. According to the judges, the approved building project fully respected the local urban planning regulations, while the pre -existing building securities were legitimate and now no longer challengeablehaving been released and crossed over thirty years earlier.
The construction in adherence was allowed, the volumes had been calculated correctly taking into account the special provisions, and the transfer between contiguous mala expressly authorized from the rules of the municipal urban plan, in particular by art. 41 of the NTA, relating to the NP8 sector.
The appeal was therefore therefore definitively rejectedwith condemnation of the applicant to pay 4,000 euros of procedural expensesto be divided between the Municipality and the private individuals involved.
The pronunciation assumes a relevance that goes beyond the concrete case, clarifying fundamental principles on building recovery in historic centers, interpretation of urban planning regulations, value of previous construction securities And legitimacy of the construction in adherence even without formal consensus between neighboring.
A sentence that reiterates the importance of evaluating building interventions not only on the basis of general rules, but also considering The planned and approved derogations from municipal urban planning tools.
