Two recent sentences from the TAR Campania, Naples, offer us the opportunity to better investigate the construction nature of the swimming pool and its assimilability or not to the world of appliances, also for the purpose of identify the building permit necessary for its construction.
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The notion of building relevance
As is known, according to peaceful jurisprudence, the civil meaning of relevance is broader than that applied in urban planning and construction matters.
In particular, it was stated that: “i) “the urban planning-building relevance can be configured when there is an objective connection that allows nothing other than the destination of the thing to a long-lasting useful use and there is a small and modest size of the artefact compared to the thing to which it belongs“; ii) “unlike the notion of relevance derived from civil law, for building purposes the artefact can be considered relevant when it is not only preordained to an objective need of the main building and is functionally inserted in its service, but also when it is without an independent market value and does not involve a so-called “urban planning burden” precisely because they exhaust their purpose in the functional relationship with the main building”(1).
In the same sense it has been stated that “the notion of urban relevance has its own peculiaritieswhich differentiate it from the civil one since the artefact must not only be pre-ordained to an objective need of the main building and functionally inserted in its service, but must also be without independent market value and in any case with a modest volume compared to the main buildingso as to avoid the so-called urban planning burden (see, ex multis, TAR Catania n. 4564/2010), so that the interventions which, despite being accessory to the main one, clearly affect the pre-existing building structure, determining a increase in urban planning burdenmust be considered subject to permission to build (TAR Campania, Naples, section VIII, 10 May 2018, n. 3115); this criterion was also applied with specific regard to the construction of a swimming pool in the area adjacent to the house, which, due to the autonomous function that it is able to carry out compared to that of the building to which it accesses, it cannot therefore be qualified as relevance in an urban planning sense (TAR Campania, Naples section III, 30 March 2018 n. 2033; TAR Campania, Naples, section III , 11 January 2018, n. 194; TAR Campania, section VII, 16 March 2017, n.“(2).
The swimming pool as an example of a non-pertinent artefact
With specific regard to the swimming pool case, the jurisprudence has clarified that “in particular, as regards the swimming pool, it does not appear unnecessary to specify that, according to shared jurisprudence: a) “all the structural elements contribute to the calculation of the volume of the building, whether they are underground or not, and the swimming pool must also be included among them, in How much not qualifyable as relevance in an urban planning sense due to the autonomous function it is capable of carrying out compared to that of the building to which it is accessed” (see TAR Campania, Naples, VII, n. 3358/2018); b) therefore, “the construction of a swimming pool can be configured as an intervention building renovation pursuant to art. 3 paragraph 1 letter. d), Presidential Decree 380 of 2001, to the extent that carries out the insertion of new elements and systemsand is therefore subordinate to building permit regime, pursuant to art. 10, paragraph 1, letter. c), of the same Presidential Decree, as it involves a lasting transformation of the territory” (TAR Campania, Naples, section IV, 14/11/2011, n. 5316)”(3).
In deference to the superior principles, therefore, the TAR Campania, Naples, section. VI, in the sentence. 25 March 2024, n. 1995, reiterated that a swimming pool – far from constituting a mere urban planning relevance – it certainly falls into the category of building renovation(4), taking into account its autonomous functionality, as well as its autonomy market value and his intrinsic ability to transform the territory in a lasting way. Consequently, according to the judges, the demolition order is legitimate due to the absence of the required building permit, identified in the building permit(5).
Similarly, the TAR Campania, Naples, section. VII, in the sentence. February 29, 2024, n. 1360, reiterated that, according to constant jurisprudence, the swimming pool cannot be classified as relevant in an urban planning senseas:
- involves lasting transformation of the territory;
- is able to carry out a function independent of that of the building it accesses;
- it is not necessarily complementary to the use of homes and It's not just a piece of recreational equipmentbut rather gives rise to “a building structure that invasively affects the site of its location and therefore requires the prior release of the appropriate title ad aedificandum, consisting of the building permit”(6).
In this specific case, however, there had been transformation of a mere ornamental fountain into a swimming pool: well, as correctly highlighted by the Neapolitan judges, this second artefact has a greater impact on the surrounding environment (due to the materials used, the necessary purification plants, the longer stay of people, etc.), involves a lasting transformation of the territory, does not exhaust its function by responding to an objective need of the main building; on the contrary, it can be used autonomously and has its own market value(7), especially when it accesses aextra-hotel activities (as in the specific case) and is susceptible (due to the shape of the bottom) of even wider use.
The exceptional nature of the appurtenant swimming pool
Only in a few sporadic cases has jurisprudence recognized the urban relevance nature of a swimming poolprovided that its dimensions are not significant and built on private property as an exclusive complement to the same(8): in particular, a prefabricated swimming pool of relatively modest dimensions in relation to the residential building, located in the area agricultural(9).
In collaboration with studiolegalepetrulli.it
Note
(1) Council of State, sec. VI, sentence. 26 April 2021, n. 3318; TAR Lazio, Rome, section. II, sentence. November 19, 2021, n. 11976.
(2) TAR Campania, Naples, sec. II, sentence. 30 May 2018, n. 3569.
(3) TAR Campania, Naples, sec. VI, sentence. 7 January 2022, n. 105.
(4) Or, according to other jurisprudence, as a new construction requiring building permit: see. TAR Puglia, Lecce, section. I, heard. 26 May 2022, n. 845; TAR Piedmont, section. II, sentence. 5 April 2023, n. 315 and sent. 2 August 2022, n. 703.
(5) On the need for a building permit for the construction of a swimming pool, see also TAR Lazio, Latina, section. I, heard. 13 July 2023, n. 544.
(6) TAR Campania, Naples, sec. III, sentence. 9 September 2020, n. 3730.
(7) Council of State, sec. II, sentence. 4 July 2023, n. 6519.
(8) Council of State, sec. VI, sentence. 3 October 2019, n. 6644.
(9) Council of State, sec. V, sent. 16 April 2014, n.1951.
