The general principle
This is a principle that is easily deduced from the incipit of the art. 6 of the Consolidated Construction Law (Presidential Decree no. 380/2001), according to which they are “Without prejudice to the provisions of the municipal planning instruments, and in any case in compliance with other sector regulations having an impact on the regulation of construction activity and, in particular, the anti-seismic, safety, fire-fighting, hygienic-sanitary regulations, those relating to energy efficiency, protection from hydrogeological risk, as well as the provisions contained in the code of cultural heritage and landscape, referred to in Legislative Decree 22 January 2004, n. 42 (…)”(1).
Criminal jurisprudence has also expressed itself on this point: the Court of Cassation, in fact, stated that “the particular regulation of free building activity is not applicable to interventions which, although falling within the categories mentioned by this provision, are in conflict with the prescriptions of urban planning interventions (ex multis, Section 3, n. 29963 of 02/08/2019; Section 3, n. 19316 of 04/27/2011, Rv. 250018; but also State Council, Section 6, n. 3667 of 07/27/2015). Specifically, it was noted, in this regard, that art. 6 of Presidential Decree 380 of 2001, allows the construction of the works indicated therein, under the regime of free construction activity, only – among other things and for what is of interest here – “in compliance with other sector regulations having an impact on the regulation of construction activity and, in particular, with the provisions contained in the code of cultural heritage and landscape” referred to in Legislative Decree no. 42 of 2004 (Section 3, n. 539 of 08/11/2022, not maximum). Therefore, the regime of free construction activity, i.e. not subject to any qualification, is not applicable to interventions which, although falling within the typologies of this provision, are in conflict with the provisions indicated in the incipit of the same, i.e., as far as this is concerned, with the legislation on landscape protection”(2).
Similarly, the Council of State stated that “the possibility of proceeding with interventions falling within the scope of the so-called ‘free building activity’ does not operate unconditionally, but remains subordinate (based on paragraph 1 of article 6 of Presidential Decree 380, cit.) to compliance with the provisions of the municipal planning instruments, and in any case to compliance with other sector regulations having an impact on the regulation of building activity”(3).
Urban planning compliance therefore constitutes a prerequisite for the execution of free building activities and not a consequence of the mere abstract traceability of the work, based on its typological characteristics, in the list contained in the art. 6 of the Consolidated Building Act (4).
The specific case
In the case being evaluated by the Ligurian judges, we were faced with the installation of a reed bulkhead on a railing of a property which, according to the municipal technical office, violated a rule of the NTA of the master plan, which, for the fences facing the public road, prescribed the use of iron or other materials “as long as it is transparent”; in this context, it was evident that the wattle made the fence non-transparent, disregarding the prescription of the plan standard.
As highlighted by the judges, even where “the installation of an outdoor furniture component, such as the reed mat“can be included in the category of ordinary maintenance, having the legal regime of free construction activity pursuant to art. 6 of the Consolidated Building Act, “the private individual is in any case required to comply with the provisions established by the local Administration to protect urban and architectural decorum”.
Consequently, the demolition order adopted by the municipal technical office was deemed legitimate by the judges; we remember, in fact, that when an intervention cannot be included within the scope of free building interventions, it always remains in the hands of the Administration, on the basis of the legal regime referred to in art. 27 of the Consolidated Construction Law, a supervisory power against abuses.
Further concrete cases
The need to comply with urban planning/building (as well as landscape) requirements even in the case of free building activity has been highlighted by jurisprudence on other occasions.
For example, the TAR Lombardia, Milan, section. IV, in the sentence. 15 April 2025, n. 1349, had recalled that free building activity must in any case comply with the provisions of the general urban planning instrument, the building regulations and sector regulations, as “free building” is by no means synonymous with “arbitrary private activity”(5).
Consequently, according to the Milanese judges, a wooden structure with the function of a barrel-shaped sauna, positioned on the relevant area to the north of the existing building, with an overall dimension of 2.17 m x 3.95 m, in an area classified as «B1 – Residential, pedestrian and commercial areas” with superimposed “Class 3 – Feasibility with significant limitations” and “Hydraulic network”» as well as subject to landscape restrictions, pursuant to Legislative Decree 42/2004, even if it were to be considered an artefact of free construction activity and not a new construction, it could not however be considered freely installable, given that the artefact in question did not comply with the requirements of an article of the PGT in force ratione temporisspecifically dedicated to the relevant areas, in accordance with which «the possibility of installing small wooden structures for saunas with a maximum surface area of 6 m2, a maximum height of 3.00 meters with a pitched roof, which respect the distances from the boundaries established in the various homogeneous areas is permitted; interventions are not permitted in E zones and standard areas» (in this specific case, however, the artefact would have required approval for installation by the authority responsible for protecting the landscape restrictions).
Similarly, the TAR Campania, Naples, section. III, sentence. 12 April 2023, n. 2238, highlighted that, even in the case of a free building intervention, the landscape authorization “must however be considered necessaryin the event that the work has a landscape impact, since building and landscape regulations have different purposes”(6).
Notes
(1) The same incipit is also found in the art. 6 bis of Presidential Decree 380/2001, which, in regulating interventions subject to sworn notice of commencement of works (so-calledwithout prejudice to the provisions of the urban planning instruments, the building regulations and the urban planning-building regulations in force, and in any case in compliance with the other sector regulations having an impact on the regulation of the building activity and, in particular, the anti-seismic, safety, fire-fighting, hygienic-sanitary regulations, those relating to energy efficiency, protection from hydrogeological risk, as well as the provisions contained in the code of cultural heritage and landscape, referred to in Legislative Decree 22 January 2004, n. 42”.
(2) Sec. III, sentence. n. 2384 of 21 January 2025.
(3) Council of State, sec. VI, sentence. 27 July 2015, n. 3667.
(4) Council of State, sec. VI, sentence. 13 February 2026, n. 1503.
(5) See TAR Lombardia, Milan, section. II, sentence. 20 October 2022, n. 2289.
(6) See also TAR Liguria, sec. II, sentence. November 2, 2021, n. 917: “The circumstance that a work may fall within the scope of free construction, however, in general terms, does not in itself exempt the owner from the obligation to acquire landscape authorization – in the case of areas or properties of landscape interest and the intervention does not fall within those of minor importance referred to in Presidential Decree no. 31 of 2017 – because the urban planning-building regulations and the landscape regulations have different purposes, as confirmed by the art. 167, co. 4, of Legislative Decree no. 42 of 2004, which among the cases suitable for landscape amnesty includes ordinary maintenance (which concerns free building works) as well as the same art. 6 of Presidential Decree n. 380 of 2001, which however remains without prejudice to compliance with the cultural heritage and landscape code (in these terms, see also TAR Lombardia, Brescia, sentence no. 528 of 2020 and TAR Campania, Naples, sentence no. 732 of 2017)”.
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