The articles 49 and 60 of Presidential Decree n. 753/1980 contain the general rule regarding railway buffer zones and the possibility of authorization in derogation. In particular, the art. 49 provides that “1. Along the routes of railway lines it is prohibited to build, reconstruct or expand buildings or structures of any kind at a distance, to be measured in horizontal projection, less than thirty meters from the limit of the occupation zone of the nearest rail. 2. The rule referred to in the previous paragraph applies only to railways with the exclusion of other similar public transport services pursuant to the third paragraph of the art. 1”.
The art. 60 contains, however, the indication of the conditions for obtaining authorization in derogation: “1. When public safety, the conservation of the railways, the nature of the land and the particular local circumstances allow it, reductions to the distances prescribed by articles 49 to 56 may be authorized by the compartmental works offices of the FS, for the State railways, and by the competent offices of the MCTC, for the railways under concession. 2. The competent MCTC offices, before authorizing the requested reductions of the prescribed legal distances, give, by registered letter with acknowledgment of receipt, communication to the companies concerned of the requests received, assigning them a peremptory deadline of thirty days for the submission of any observations. 3.After this deadline, the aforementioned offices may authorize the requested reductions”.
>> Don’t want to miss articles like this? Click here, it’s free
Jurisprudence
The jurisprudence has clarified that “the provisions of article 60 of the Presidential Decree of 11 July 1980, n. 753 must be interpreted in the sense that, in the absence of the impeding causes envisaged therein (public safety, preservation of the railways, nature of the land and particular local circumstances), the administration is not at all obliged to issue the authorization in derogation, but is simply entitled to discretionally evaluate the opportunity to issue the authorization itself or not.”(1).
Consequently, it has been stated that “In the context of the assessment made by the Authority responsible for respecting the constraint in question (unquestionable where not manifestly illogical or unreasonable), the refusal may be supported by a concise justification, easily obtainable from the opinion, even where based exclusively on the excessive proximity of the artefact to the railway works, because it is objectively capable of affecting the safety of the network, especially in the presence of any accidents, and of precluding easier access to the network itself, in the event of interventions maintenance or accidents”(2).
A recent concrete case of illegitimate denial of authorization for the exemption
The recent ruling. 6 February 2026, n. 237, of the TAR Campania, Salerno, sec. II, offers us the opportunity to investigate the operation of the exemption. A first important aspect highlighted by the judges concerns the absence of the aforementioned impeding causes expressly provided for by the art. 60 (public safety, conservation of the railways, nature of the land and particular local circumstances), which constitutes a necessary but not sufficient condition for the acceptance of the derogation request(3).
Secondly, it was specified that the reasons underlying the refusal must be coherent and logical with respect to the investigation carried out by the Administration and the collaborative contributions offered by the interested parties.
Thirdly, the motivation for the denial of authorization in derogation must not be particularly widespread but, in any case, must be concrete and objective, since it cannot ignore the consideration of the state of the places(4): and in fact, as stated in the past by jurisprudence, “If the derogation must be adequately motivated in relation to the circumstances represented in this last rule, it is equally true that the denial of the same must also be motivated with reference to the factual circumstances and with an evaluation which, despite being an expression of technical discretion, can be reviewed and, above all, must be anchored to a correct representation of all the circumstances of the concrete case capable of reasonably justifying the denial”(5).
In the specific case analyzed by the Salerno judges, an authorization in derogation had been obtained for the reconstruction of a fence along the railway border and for “generate appurtenance of the attic as the only sub that cannot be separated from the connected apartment“. The owner, subsequently, with a variation, united the two floors making up the building (the first floor for residential use and the second floor as an attic) under a single sub-roof and carried out works in the attic so as to make it partially habitable, also requesting permission to build in amnesty and a new authorization in derogation pursuant to art. 60 of Presidential Decree no. 753/1980.
RFI denied the request, highlighting that works had been carried out consisting of the construction of internal partitions and systems, in order to make the attic portion functional and habitable. These interventions, although not involving external volumetric changes, had transformed the nature of use of the space, giving it a stable and continuous configuration that could not be traced back to mere maintenance interventions or technical adaptations; furthermore, the works and the change of intended use of the attic, effectively resulting in an increase in residential surface area, would have increased the number of people permanently exposed, as residents, to the risks and dangers associated with proximity to the railway line; finally, interference with the high-speed works underway and the intolerability of the perception of the acoustic and vibrational emissions caused by the railway trains could not be ruled out.
The judges considered the refusal illegitimate: and in fact, the modification made, which was contested by the RFI, was not among those identified by the law as urbanistically relevant, given that a change was made within the same category “residential“. In these cases, and this is the main innovation on the subject introduced by Legislative Decree no. 69/2024, paragraph 1 bis of art. 23 ter of Presidential Decree no. 380/2001 provides that “Changing the intended use of a single real estate unit within the same functional category is always permitted, in compliance with sector regulations, without prejudice to the possibility for municipal planning instruments to set specific conditions”.
There ratio of the provision is explained, and here is the relevance with respect to the matter evaluated by the judges, as the change, within the aforementioned limits, is not suitable to determine a significant increase in the urban planning burden. And even more so in cases similar to the one being evaluated in which the attic did not have its own functional autonomy, being entirely incorporated into the main apartment. Therefore, the activity had not caused any prejudice with respect to the perimeter of the interests protectable by RFI, regardless of whether works had been necessary to achieve the said change or not.
From the above considerations follows the erroneousness of the assumption underlying the denial, according to which the aforementioned change would have produced the transformation, however partial, of the nature of the attic “from an accessory and appurtenant space to a space with autonomous, or potentially autonomous, living functionality”.
Consequently, the refusal was deemed illegitimate due to excess of power in terms of the incorrectness of the assumption and the lack of investigation, as well as for excess of power due to misuse.
This last symptomatic element can also occur when the exercise of power is based on the reference to elements which, regardless of their validity, do not fall within the range of interests of which the proceeding Administration is the bearer. Moreover, even if said symptomatic element emerges, in general, when the act carried out was determined by an interest other than the public one, nevertheless the same defect may well consist of “in the actual and proven divergence between the act and its typical function, or in the exercise of power for purposes other than those enunciated by the legislator with the rule attributing the same“(6). This is precisely what happened in the matter evaluated by the judges, due to the fact that the impeding findings highlighted by RFI were not relevant to the competences and the list of interests protected by the latter company, but could rather be relevant with respect to the various considerations of municipal competence related to the exercise of the supervisory power pursuant to art. 27 of the Consolidated Construction Law.
>> If you want to receive news like this directly on your smartphone, subscribe to our new Telegram channel!
Notes
(1) Council of State, sec. VI, sentence. 6 October 2017, n. 4658.
(2) Council of State, sec. II, sentence. 9 January 2020, n. 171; TAR, Puglia, Lecce, sec. I, heard. 3 November 2025, n. 1451.
(3) Council of State, sec. VI, sentence. 6 October 2017, n. 4658.
(4) TAR Sicily, Palermo, sec. V, sent. 23 June 2025, n. 1369.
(5) TAR Sicily, Catania, sec. IV, sentence. 15 July 2021, n. 2327, which recalls TAR Tuscany, section. III, sentence. 11 March 2020, n. 297.
(6) (Council of State section V, 9/05/2025, n. 4030)
In collaboration with studiolegalepetrulli.it
Thank you for subscribing to the newsletter.
