Outdoor areas flooring: free building or not? The consolidated jurisprudence
The topic relating to the flooring of external areas has often been the subject of evaluation by the jurisprudence and has been stated, for example, that the works of flooring constituting free construction activities are configurable when they constitute accessory works of relevant buildings in building areas and, therefore, are of minimal entity, perform an accessory and essential function compared to the main asset and do not affect the territory in a significant way.
The same, however, cannot be traced back to the field of free building activity when:
- they have considerable extension,
- involve the permanent transformation of the unusified soil,
- They are functional to the change in the intended use of the soil (2).
For example, according to the jurisprudence, it is attributable in genus free construction, both for construction purposes, former art. 6 of Presidential Decree no. 380/2001, both for landscape purposes, pursuant to Presidential Decree no. 31/2017 – Annex A, the laying on the soil of “tiles”, for an overall surface of only 75 square meters which affect a bottom of over 30,000 square meters (3).
Two recent sentences offer us the starting point to confirm these principles.
The flooring of external areas is not a totally liberalized activity
The Tar Campania, Salerno, section II, in the sent. 9 September 2025, n. 1442, in considering not freely achievable, in the multiple area, a flooring of approximately square meters. 100 With the use of concrete screed, he recalled the jurisprudence of the Council of State, section. VI, in the sent. n. 1659/2024, according to which it must be excluded that, in indulging the construction regime free of the construction of interventions for the flooring of outdoor spaces, within the prescribed limits of permeability of the fund, the legislator intended to allow the right to cover freely and without any title of unavailad soil, except in respect of these limits. And this as the flooring of external areas:
- it is in itself suitable for permanently transforming portions of inevitable soil;
- It reduces the filter surface, with the consequence that – even if contained in the prescribed limits of permeability – it still affects the regime of the outflow of water from the ground;
- It is perceptible externally, so it has potential relevance from the point of view of the insertion of the works in the urban context;
- It determines the creation of a useful surface, although not of a new volume.
Similarly, the same Tar Campania, Salerno, in the section II, in the sent. 9 September 2025, n. 1436, confirmed that it cannot be considered free building activities in the case of a flooring, always in the bound area, of approximately square meters. 120 with the use of concrete betonelle.
Notes
(1) DPR n. 380/2001.
(2) TAR Toscana, Section III, sent. 1 August 2022, n. 972; Tar Campania, Naples, section II, sent. January 3, 2024, n. 57 (in the specific case, the nature of free building activity has been excluded in the case of a flooring of 850 square meters of surface); sent. September 20, 2023, n. 5145 (in the specific case the nature of free building activity has been excluded in the case of considerable extension of the area and the change of urban destination).
(3) Tar Campania, Salerno, section II, sent. 7 October 2022, n. 2613.
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