A demolition order, a series of contested building modifications and the right to defend oneself: these are the elements underlying a recent ruling by the Campania TAR (n. 2196/2024), which dealt with the case of a property intended for business of catering.
The Municipality had ordered the demolition of the sheds and terraces, considering them illegal, but the owners contested the decision, claiming that they had acted in compliance with the building permits.
What was decided by the court? And what lessons can we learn to avoid similar disputes?
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The case in brief: dehors, canopies and plasterboard dividers
The legal matter originated from an ordinance of the Municipality of Mercato San Severino, which required the demolition of a series of works carried out on a property intended for catering activities. Among the disputed interventions were canopies used as restaurant rooms, dehors installed without the necessary permission and some internal modifications, such as the creation of a plasterboard partition and the change of intended use of some rooms.
According to the Municipality, these interventions did not comply with building and urban planning regulations, as they lacked valid authorizations or involved a volumetric increase not permitted. In particular, the Municipality argued that the sheds transformed into restaurant rooms and the dehors represented new buildings that would have required the issuance of a building permit, despite the owners having presented titles such as SCIA and CILA for extraordinary maintenance interventions or change of use. use.
The owners, for their part, challenged the ordinance, stating that all the works had been carried out in compliance with the regulations and the building permits in their possession. They also highlighted that the works had not led to an increase in the urban planning burden and that some modifications, such as the plasterboard divider, were minor interventions that did not require specific authorizations.
This situation brought the case before the Regional Administrative Court (TAR) of Campania, where the legitimacy of the demolition order and related documents was debated.
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The regulatory framework: between building permits and building permits
At the center of the controversy is the application of Presidential Decree 380/2001, known as the Consolidated Building Act and recently amended through the Salva Casa Decree, which regulates building interventions and the related authorization titles.
In particular, the decree distinguishes between works that can be carried out with certified notification of start of activity (SCIA) or sworn communication of start of work (CILA), and those that require a building permit, generally necessary for works of greater impact, such as new buildings or interventions that involve a volumetric increase.
The Municipality of Mercato San Severino claimed that some works, such as the sheds transformed into restaurant rooms and the dehors, resulted in significant changes to the volume of the building or a transformation of the territory. Therefore, according to the administration, these interventions would have required a building permit, as the building permits presented by the owners were not sufficient.
On the other hand, the appellants underlined that the interventions had been carried out in compliance with local regulations and the Municipal Urban Plan (PUC), which allows changes in intended use in some areas, and that many of the works fell into the category of renovation interventions. free construction, as required by art. 6 of Presidential Decree 380/2001.
The main legal question therefore concerned the qualification of the works: were they minor interventions or works capable of significantly altering the state of the places, therefore requiring more stringent authorisation?
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The TAR Ruling: building permit is required for volumetric modifications
The Campania TAR issued a complex sentence, only partially accepting the appellants’ requests. After analyzing the existing building permits and the characteristics of the disputed works, the court established that some demolitions ordered by the Municipality were legitimate, while others were excessive or unfounded.
In particular, the TAR confirmed the demolition obligation for the sheds transformed into restaurant rooms and for the dehors, since these works resulted in significant volumetric changes and were not covered by valid building permits. According to consolidated jurisprudence, structures of this type, which affect the urban planning load and alter the pre-existing building structure, require building permission.
The absence of this permit makes the municipality’s sanctioning intervention legitimate.
However, the court also upheld some of the appellants’ contentions. For example, the demolition order relating to the plasterboard divider carried out inside the bathroom, as this intervention had been correctly authorized through SCIA and did not involve an increase in the urban planning load or a significant change of intended use.
The ruling therefore drew a clear line between interventions that can be considered minor and those which, due to their scope, require more rigorous urban planning control.
