Canopies and dehors in external areas: jurisprudence clarifies requirements and authorizations

The sheds

As is known, and as reiterated by the Campania judges, in the matter of canopies the general principle holds that “interventions consisting in the installation of canopies or other similar structures affixed to parts of pre-existing buildings as accessory protection or shelter structures of free spaces, i.e. not included within the volumetric coverages foreseen in an approved project, can be considered removed from the building permit regime only where their conformation and their small dimensions make their purpose clear and recognisable furniture or of shelter and protection (also from atmospheric agents) of the property they access” and that “these structures require a building permit when their dimensions are such as to cause a visible alteration to the building and the parts of the same on which they are inserted or, in any case, a lasting transformation of the territory with a corresponding increase in the urban planning burden”(1).

In this specific case, we were faced with one large canopywhich featured a perimeter closure involving a delimitation of the internal spacelikely to cause a significant volumetric impact on the territory, or an evident alteration of the state of the places affecting the previous building structure, with need for building permit(2).

Among the recent case studies, for example, we would like to point out that a new construction, requiring a building permit, was considered to be a shed that is open on two sides, resting the other two on concrete walls, giving life to a building with its own functional autonomy not attributable to the concept of relevance(3). In other words, thelarge extension of the covered surface of a shed already in itself fundamentally excludes the merely appurtenant nature of the works(4).

However, permission is not required before the cc.dd. canopies light, not laterally buffered on at least three sidesdevoid of autonomy and created for “enhance the use of the building by placing a temporary shelter from the sun, rain, wind and humidity which makes staying outside more pleasant for a longer period of time, without however creating an environment in any way comparable to the internal one, due to the lack of the necessary stability, of suitable thermal insulation and of adequate insulation from rain, humidity and related condensation phenomena”(5).

The outdoor areas

The second type of structures analyzed by the Campania judges was that of outdoor areaconsisting, in the specific case, in closed installations partially or totally supported by an existing building that is to say separated with autonomous structurebut anyway functionally connected to a public establishment of administration, to an artisan laboratory for the preparation of take-away products or, in any case, for all activities that carry out immediate consumption of food, equipped with a bathroom for customers.

According to the majority orientation of administrative jurisprudence, “the dehors, structures serving commercial activities installed on public land, which in fact take on a consistency that varies from the simple awning, or umbrella with wide pitches, to the box equipped with closed window frames such as veranda, can be installed freely where they meet the characteristics of referred to in the art. 6, paragraph 1, letter. e-bis), of Presidential Decree 380 of 2001, therefore having to possess two characteristics: one functional, i.e. consisting in targeting the needs of the businesswhich however must be «contingent and temporary“, meaning as such those which, in an objective sense, take on an ontologically temporary character, as regards their duration, and contingent, as regards the reason which determines their realisation, and which in any case (i.e. whatever the “contingency” may be) determining factor), however they do not exceed i one hundred and eighty days (a term which, it is worth reiterating, must also include set-up and dismantling times, thus reducing actual use to a period of less than the aforementioned 180 days); the other structural, i.e. the occurrence made with materials and methods that allow for rapid removal once the functional need no longer exists (and therefore at the latest within one hundred and eighty days from the day of start of the installation, coinciding with the day of communication to the competent administration)”(6).

In the specific case, although the dehors respected the existing maintenance deadline of 180 days provided for by the regulation, the judges considered that the structures could not be considered mere precarious elements, due to the building characteristics of the structures, from the strong impact on the state of places.

With reference to dehors, the orientation of the jurisprudence according to which these structures are functional to satisfy is clear permanent needs of the public establishmentshould be considered as artefacts that they alter the state of places and increase the urban planning burdennoting the precariousness of the artefact, the removability of the structure and the absence of masonry works to no avail, instead having to evaluate its use for contingent purposes, to satisfy long-lasting needsFor non-seasonal activity(7). Among the case studies, for example, we recall that it has been stated that it is not a precarious artefact but a new construction intervention requiring permission to build a “dehors-type” iron structure of rectangular shape, equal to approximately 54 m2 and of equal height at 2.40 m, with a PVC pavilion roof, resting on a masonry platform approximately 20 cm thick, closed by sliding glass doors and windows (8).

Notes

(1) Ex plurimis: TAR Campania, Naples, section. IV, sentence. 13 July 2022, n. 4706.
(2) TAR Campania, Salerno, sec. II, sentence. 12 March 2020, n. 363.
(3) Council of State, sec. VI, sentence. 3 April 2024, n. 3031.
(4) TAR Campania, Salerno, sec. I, heard. November 23, 2023, n. 2714.
(5) Council of State, sec. VII, sentence. 28 August 2023, n. 7999; section VI, sentence. 3 April 2024, n. 3031.
(6) Council of State, sec. II, sentence. February 13, 2023, n. 1489.
(7) TAR Tuscany, section. III, sentence. 17 April 2018, n. 556.
(8) TAR Tuscany, section. III, sentence. 3 December 2020, n. 1583.