The change of intended use (or change of intended use) is a relevant issue in construction law, especially when it involves a change between non-homogeneous functional categories. In particular, the transformation of a porch into a home cannot be considered a simple variation without urban planning relevance.
Let’s see the general rule and the recent concrete case.
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General rule regarding change of intended use
As stated by jurisprudence on several occasions, “The change of intended use of a pre-existing building it does not require any qualification only if it is built between homogeneous building categories; vice versa, if it occurs between functionally autonomous building categories among those provided for by the art. 23-ter of Presidential Decree 380/2001 and not homogeneous integrates a building modification with adverse effects on the urban planning load, subject to building permit”(1).
We remind you that the art. 23-ter mentioned, while allowing the Regions to legislate(2), provides for the following categories:
- a) residential;
- a-bis) tourist-accommodation;
- b) productive and directional;
- c) commercial;
- d) rural.
The change of intended use of a porch into a home
As recently recalled by TAR Campania, Salerno, section. II, in the sentence. 2 December 2024, n. 2336The Building permit is required for the transformation of window spaces, terraces and porches. In this specific case, an owner had presented a SCIA for the change of intended use(3) of the surface of a porch(4) in a home; said modification had been obtained through the closing of predicted porchincorporated within the property unit.
The judges stated that the SCIA does not constitute an abstractly suitable title to support the closure of a porch, while in such cases it is necessary to obtain a building permitbeing faced with non-homogeneous categories.
Due to the express provision of the art. 23-ter, paragraph 1 quid(5)of the Consolidated Building Act, the change of intended use can be obtained through SCIA only where it takes the form of attributable works and homogeneous building categories(6), requiring building permission in other cases. In particular, the building permit is required for the transformation of window spaces, terraces and, as in today’s case, porches; in this sense it has been stated that “It is clear that the change of destination of a non-residential volume or surface into a habitable surface and/or volume, integrating the extremes of the change of use between ontologically different functional categories, which, therefore, only create a increase in the urban planning burden of the arearequire a building permit, pursuant to articles. 23-ter and 32 of Presidential Decree 380/2001”(7).
And precisely with reference to cases similar to that covered by the sentence in question, in which the change of intended use involved the transformation of a portico, the Council of State specified that “The ancillary rooms and residential units belong to non-homogeneous building categorieswith the consequent need to issue a building permit so that the former can be used for residential purposes. This is because such a change affects the urban planning load and therefore the calculation of the urban planning standards, which must consequently be adapted to the greater anthropic pressure that arises as a result of the greater residential surface area and the increase in volumes that can be used for residential purposes.”(8).
Similar to the hypothesis analyzed in the sentence in question, we recall that, according to jurisprudence, even the transformation of a mere warehouse or warehouse into a real homeby installing systems and furnishingsaggravates the urban planning load already assessed and approved by the local authority when issuing the original building permit, with consequent need for the prior issuing of a building permit(9).
Obviously, once the need for the building permit has been established, in his absence the works must be considered illegal and subject to the demolition and restoration order (as happened in the specific case).
Notes
(1) TAR Campania, Salerno, sec. III, sentence. 25 September 2024, n. 1715; sent. 17 October 2023, n. 2328.
(2) In Lombardy, LR n. 12/2005 provides:
– that changes in compatible use without works are subject only to a communication by the interested party (art. 52, paragraph 2);
– that the building permit is needed for changes to the intended use, with or without works, aimed at the creation of places of worship and places intended for social centers (art. 52, paragraph 3-bis) or from the construction or expansion of game rooms, betting rooms and bingo halls (art. 52, paragraph 3-ter);
– that attics recovered for residential purposes cannot undergo changes to their intended use in the ten years following obtaining the usability (art. 64, paragraph 10);
– that in the case of the establishment of surface rights on areas of municipal property, the subsequent modification of the intended use is not possible (art. 68, paragraph 3).
In Tuscany, LR n. 64/2014 provides:
– seven functional categories, namely: residential; industrial and artisanal; retail commercial; tourist-accommodation; management and service; wholesale trade and warehouses; agricultural and related functions pursuant to law (art. 99);
– that the building permit is needed (art. 134, paragraph 1, letter e-bis), or the SCIA alternative to the building permit (art. 134, paragraph 2-bis) for changes from one category to another if falling in zone “A”
– that a change within the same category in the absence of building works is considered a free construction activity (art. 136, paragraph 1, letter b-bis).
In Liguria, LR n. 16/2008:
– requires the SCIA for changes of intended use without works within the same category (art. 13-bis);
– alongside the five categories envisaged by the national legislator, adds “garages and storage areas” And “services”.
(3) The expression “change of intended use” is used from an urban planning and cadastral point of view to indicate a change in the purpose of use of a real estate unit or part of it, such as to lead to its different use.
(4) “Covered building element on the ground floor of buildings, interspersed with columns or pillars open on one or more sides towards the external fronts of the building”: definition of standard building regulations.
(5) For the purposes referred to in paragraphs 1-bis and 1-ter, the change of intended use is subject to the issuing of the following qualifications:
a) in the cases referred to in the first sentence of paragraph 1, the certified notification of start of activity referred to in article 19 of law 7 August 1990, n. 241;
b) in the remaining cases, the title required for the execution of the works necessary for the change of intended use, without prejudice to the fact that, for changes accompanied by the execution of works attributable to article 6-bis, proceedings are carried out pursuant to the letter a).
(6) TAR Campania, Naples, sec. VII, sentence. November 3, 2021, n. 6938; in terms: Council of State, section. VI, sentence. 15 May 2017, n. 2295; TRGA Trento, sentence. 4 March 2022, n. 53; TAR Marche, section. I, heard. 20 July 2020, n. 467; TAR Sicily, Catania, section. IV, sentence. 12 July 2017, n. 1773; for example, the SCIA was deemed suitable in the event that, in an agricultural area, a room originally used as a manure heap/tool storage in the stable is transformed (TAR Valle d’Aosta, sentence 25 March 2019, n. 14) and in the case of transformation of a hotel into a tourist hotel residence (TAR Marche, section I, sentence 20 July 2020, n. 467).
(7) TAR Campania, Salerno, sec. II, sentence. 16 January 2020, n. 848; Naples, section. VII, sentence. 18 August 2022, n. 5444; TAR Lazio, Rome, section. I, sent, 4 April 2012, n. 3101; section II, sentence. 26 July 2018, n. 8452; sent. 30 August 2018, n. 9074; sent. 4 April 2017, n. 4225; section I, heard. 14 May 2018, n. 742; TAR Liguria, section. I, heard. 26 July 2017, n. 682; TAR Puglia, Bari, section. III, sentence. 9 March 2022, n. 356.
(8) Council of State, sec. IV, sentence. n. 6572/2023; in the same sense, sec. VI n. 2913/2023; TAR Campania, Salerno, section. II, sentence. 13 May 2021, n. 1185.
(9) TAR Piedmont, section. II, sentence. February 27, 2024, n. 199, according to which “In general, the change of intended use of a property must be considered urbanistically relevant and, as such, subject in itself to obtaining a building permit, with the obvious consequence that the unauthorized change of intended use which alters the urban planning load constitutes a situation of illegality in various ways, which must be detected by the Administration in the exercise of its supervisory power (Cons. Stato, IV, 13.7.2022, n. 5907)”.
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