The recent ruling n. 2178/2024 of the TAR Campania – Salerno section – brings the issue of building abuse back to the center of attention, focusing on the delicate balance between citizens’ rights and the obligations of local administrations. At the center of the story, a mezzanine built without the necessary authorizations, for which the Municipality issued a demolition order.
The case raised important questions: when can a building work, such as a mezzanine, be considered illegal? What are the parameters that distinguish a minor modification from a transformation relevant to urban planning?
The ruling not only defines the applicable regulatory framework, but also clarifies the powers and limits of administrative action against abuse.
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The case analyzed by the TAR
The case analyzed by the Campania TAR revolves around the construction of a mezzanine inside a private home, considered by the Municipality as an illegal work. According to technical findings, the mezzanine occupied an area of approximately 50 square metres, with an internal height of 2.65 metres, and was equipped with flooring, partitions, electrical and plumbing systems, as well as an internal access staircase.
These characteristics made him one autonomous structure and not a simple internal modification.
The Municipality of Scafati, after receiving reports from neighbors of alleged building abuses, had initially issued a demolition order, which was subsequently canceled by the TAR with a previous ruling. However, following further investigations, the municipal administration reiterated the demolition order, claiming that the building had been built without a building permit, violating the urban planning regulations set out in Presidential Decree 380/2001.
The owner, considering the new ordinance harmful to his rights, appealed to the TAR.
His defense was based on the alleged circumvention of the previous ruling, underlining that the Municipality would not have conducted a new adequate investigation to demonstrate the illegality of the work. Among other arguments, the appellant argued that the intervention could have been classified as extraordinary maintenance, which could be remedied with a SCIA (Certified Report of Start of Activity), rather than being subject to demolition.
The TAR, however, rejected these reasons, deeming the ordinance compliant with the law and based on correct assumptions, highlighting the mandatory sanctioning intervention by the Municipality in cases of building abuse.
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The regulatory framework: when a work becomes a building violation
To understand the TAR’s decision, it is essential to examine the relevant legislation. Presidential Decree 380/2001, known as the Consolidated Building Act, regulates building interventions by distinguishing between ordinary and extraordinary maintenance works, building renovation and new construction. In the case of works that involve a significant increase in useful surfaces, such as a large mezzanine, the building permit is mandatory.
In particular, article 31 of Presidential Decree 380/2001 establishes that works carried out in the absence or in total non-compliance with the building permit are subject to demolition, and imposes on the Municipalities the obligation to intervene. The legislation also excludes the administration from discretionally assessing the curability of the work in these situations.
To confirm this, jurisprudence has repeatedly reiterated that the mezzanine, if of significant dimensions and usable as a habitable space, is included among the urban transformation works that require specific authorization.
The sentence of the TAR Salerno fits into this framework, reiterating that, in the case of abusive works, the Municipality has not only the right, but also the duty to adopt sanctioning measures, even following the annulment of a previous ordinance, provided correct in his vices.
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The reasons for the TAR: an abuse that cannot be remedied
In rejecting the appeal, the Salerno TAR examined in greater detail the reasons which qualify the mezzanine as a building violation which cannot be remedied. The work, 50 square meters long and with an internal height of 2.65 metres, included flooring, systems, partitions and an access staircase. These characteristics go beyond the limits of a minor modification, fully falling within the building transformations that require a building permit.
Furthermore, the TAR observed that the mezzanine generated an increase in useful surface areasubstantially modifying the layout of the property and leading to a potential increase in the urban planning load, in terms of use and impact on the territory.
On the topic of SCIA (Certified Report of Start of Activity), the TAR clarified that this is applicable only for extraordinary maintenance interventions or minor internal modifications, which do not involve a significant change in the intended use or an increase in surfaces. However, in this specific case, the mezzanine could not be assimilated to an extraordinary maintenance intervention.
Jurisprudence has established that a work such as a mezzanine is subject to a building permit if it is habitable or usable, as in the case in question, where the building was served by a staircase and equipped with flooring and functional systems.
The TAR also underlined that it is not the administration’s task to evaluate the possibility of remedying an abuse when it comes to works that clearly violate regulatory requirements. According to articles 27 and 31 of Presidential Decree 380/2001, the municipal manager has the obligation to repress the abuse without any discretion in judging the curability of the intervention. This interpretation confirms that, in the event of substantial discrepancies, such as those found in the case of the mezzanine, the only viable option is demolition.
The decision therefore reinforces a fundamental principle: the SCIA cannot be used as a tool to regularize works that require a building permit, as this would be in conflict with the objective of the urban planning regulations, i.e. protecting the rational use of the territory .
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