There construction of a fence It is a topic of considerable practical interest and often jurisprudence is called upon to express its opinion on specific cases. Two recent rulings of the TAR of Lombardy, Brescia, section II, offer us the opportunity to recall the principles now consolidated in the field.
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Fencing: When is a building permit required?
There sent. 27 June 2024, n. 569recalled that, according to a well-known orientation, “The construction of the fence does not require a suitable building permit only in the presence of a transformation which, due to the use of materials with little visual impact and the size of the intervention, does not cause an appreciable environmental, aesthetic and functional alterationwith the consequence that the distinction between the exercise of the ius aedificandi and the ius excludendi alios ex art. 831 cc must be traced in the concrete verification of the characteristics of the artifact. In particular, the building permit, while Not it is necessary for the mere fence with metal mesh supported by iron or wooden posts without a retaining wall, it is necessary when the fence is made up of a concrete retaining wall with metal mesh above, thus falling within the category of “new construction” interventions, a concept which includes any autonomous or modifying artifact of another pre-existing one, which is permanently fixed to the ground or to the walls of the pre-existing one, but in any case capable of transform in a lasting way the covered area, or rather any kind of work carried out on and in the soil, if suitable to modify the state of the places. In other words, the assessment regarding the need for a building permit for the construction of fencing works must be carried out on the basis of the following two parameters: nature and size of the works and their purpose and function”(1).
In the specific case addressed by the Brescia judges, we were faced with a fence permanently fixed to a 55 cm concrete wall, covered with bricks, and made up of almost entirely blind panels of a height of 1.23 m; therefore, in light of the above-mentioned jurisprudential principles, according to the judges, we were faced with a “new construction” or, at least, to a work of “Extraordinary maintenance”, suitable for transforming the covered area in a lasting way and, therefore, requiring a specific building permit.
The installation of a fence in an agricultural area regulated by the NTA
The second pronunciation that we would like to point out to our readers is the sent. 25 June 2024, n. 558in which the technical office had ordered the owner carrying out the works to demolition of the following works deemed to be abusive:
- installation of a boundary fence, built for an initial stretch (approximately 60.20 metres) with green wire mesh with rectangular mesh having a height of 1.60 metres on concrete poles having height of 2.75 metersfor a second section (approximately 38.00 metres) with green metal netting with rectangular meshes having height of 1.35 meters on an iron pole with a height of 1.35 metres, and for a third section (approximately 13.00 metres) with a green metal net with rectangular meshes having height of 1.45 meters on an iron pole 1.45 metres high;
- pose of 2 vertical elements in metal tubing having dimensions equal to 0.10×0.10 meters;
- pose of concrete slabs gritted to form paths inside the garden, which has dimensions of approximately 8.00 metres wide and 21.00 metres long;
- pose of a overhead aqueduct on metal pipes made of iron with a height varying from 3.00 to 4.00 metres for a length of approximately 120.00 metres.
In detail, fences in agricultural areas were specifically regulated by the PGT through a provision contained in the NTA, which established that “in agricultural areas the fences of buildings and their appurtenances with the exception of cultivated areas are permitted only by means of shrubs and/or wooden fences and/or green plastic-coated metal mesh with a maximum height of 1.80 m. (…) Fences for the closure of the land pursuant to art. 841 of the civil code are permitted exclusively with wooden posts no higher than 1.50 m, and must be placed in such a way as to do not obstruct the passage of wildlife. Other typologies are permitted depending on the agricultural activity to be carried out within the fenced space”.
According to the judges, this provision correctly balanced the right to fence recognized by the civil code with public interests of an urban and landscape nature. In the agricultural sector and, even more so, in areas of landscape and environmental importance, the right to fence can be conformed, up to the cancellation, to the purpose of do not interrupt the view of open spaces and do not create obstacles to the passage of wildlife. It is, therefore, reasonable, as the Municipality did with the provision contained in the NTA, to regulate separately:
– the fences that separate residential or production buildings and their appurtenant spaces compared to buildings of other owners;
– the fences that are placed in areas without buildings of different owners, cultivated or even naturalized.
The first type of fences could involve the use of relatively impactful materials, such as plasticized metal mesh, as it had a protective and closing function not dissimilar from that of fences located in urbanized areas. The second type of fences, on the other hand, required the use of less invasive materials (typically wood) and required a verification of compatibility with the naturalistic context and with the agricultural activity carried out and also construction solutions that did not hinder the passage of wild fauna.
According to the judges, since the assessments required imply the exercise of technical discretionthe installing fences does not fall within free building activity ex art. 6 of the Consolidated Building Act(2) but it demandsif not related to major building works, at least a CILA pursuant to art. 6-BIS same Consolidated Law; consequently, the removal order was deemed legitimate in the part in which it sanctioned the non-conformities of the fence with respect to the requirements of the provision contained in the NTA.
The remaining works, however, were not considered punishable.: from an urban planning perspective, the positioning of vertical elements in metal tubing and a suspended irrigation system could be considered a free building intervention, as it involved only minimal earth movement, without introducing permanent changes to the state of the places and (at least in the case of irrigation) strictly functional to the cultivation of the land.
Note
(1) Council of State, section VI, judgment of 17 October 2023, no. 9022; judgment of 7 March 2022, no. 1609; judgment of 19 December 2019, no. 8600; TAR Sicily, Palermo, section II, judgment of 26 February 2024, no. 776; Catania, section I, judgment of 13 October 2023, no. 3023; TAR Piedmont, section II, judgment of 30 September 2019, no. 1013.
(2) Presidential Decree 6 June 2001, n. 380.
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