The recent ruling of the TAR Campania, Salerno
Let’s see the sentence of 11 July 2024, n. 1464, of the TAR Campania, Salerno, section II. In the case being evaluated by the Salerno judges, we were faced with a economic operator operating in the food and beverage supply sector who had presented a SCIA for extraordinary maintenance of a pergola awning to be used for the activity carried out. The municipal technical office believed that the planned intervention would determine a new construction (for which the SCIA was insufficient, requiring a building permit) and not just maintenance of the existing pergola awning.
In support, he stated that “The structure has a floor plan size of the above-ground footprint equal to 64 square meters; the foundations are made up of 4 plinths each having dimensions of 1.00 x 1.00 x 0.35 ml and underlying foundation concrete, connected with a grid of 4 reinforced concrete curbs with a cross-section of 0.25 x 0.20 ml and a reinforced concrete foundation slab measuring 8.60 x 8.60 x 0.15 ml; it has 8 foundation plates measuring 25 x 25 cm with a thickness of 2 cm in metal carpentry, each equipped with 8 tie rods with a diameter of 16 mm; the vertical load-bearing structure in elevation – reinforcing the 4 aluminium alloy pillars – made up of 8 HEB 160 metal carpentry pillars (it should be noted that an HEB160 profile weighs 42.6 kg per ml); the horizontal load-bearing structure at a height of approximately 3.5 metres – reinforcing the aluminium alloy uprights – made up of 16 IPE 160 metal carpentry beams and 4 HEB 160 metal carpentry beams; the 60 x 36 tubular metal carpentry profiles with a 50 cm centre distance which support a roofing sheet with a weight of 50 kg/m2; an overload acting on the roof of 300 kg/m2 and snow of 285 kg/m2. (…). The work as per the project becomes a fixed and stable structurein order to create a new venue in a closed spacecreating a real building work with a significant transformation of the territory. The following circumstances are decisive: a) the anchoring to the ground: the plinths driven in deep, cemented, and enclosed by perimeter curbs, cemented, and a cemented slab, extended for the entire dimension of the structure, constitute a building intervention that is certainly not precarious; b) the size and weight of the metal carpentry supporting the covering sheets and perimeter closure which in fact 5 incorporates the existing pergola awning; c) the considerable size of the pergola awning”.
The judges agreed with the municipal technical office. The pergola is, by definition, a lightweight structure designed to house retractable plastic panelsdoes not integrate these characteristics; the main work is not, in fact, the framework itself, but the curtainWhich element of protection from the sun and atmospheric agentsaimed at a better use of the external space of the housing unit, with the consequence that the framework itself is qualified in terms of a mere accessory element, necessary for the support and extension of the awning; the latter, then, integrated into the load-bearing structure, cannot be considered a “new construction”, even where hypothetically intended to remain constantly closed, given that it is made of plastic and retractable material, therefore it does not present characteristics such as to constitute a significant building organism, involving transformation of the territory.
Indeed the covering and the perimeter closure that it creates do not present elements of fixity, stability and permanencedue to the retractable nature of the awning and panels, therefore, due to the lack of a permanently configured closed space, it is not possible to speak of a building organism characterised by the creation of a new volume or surface; the above conclusion is also supported by the annex to the Ministerial Decree of 2/3/2018 concerning the “glossary containing the non-exhaustive list of the main building works that can be carried out under the free building activity regime, pursuant to article 1, paragraph 2, of Legislative Decree 25 November 2016, no. 222”, which, at no. 50, includes pergola awnings among the interventions that can be carried out under the free building regime”(1).
As is known, however, for “new construction” means any intervention that consists in an urban and building transformation of the territory, implemented through works of remodeling of the morphology of the land, or constructions lato sensu intese, which, regardless of the materials used and the degree of removability, present a simultaneous character of physical stability and temporal permanence, with this meaning any artifact that is physically anchored to the ground. The distinctive and qualifying trait is, therefore, assumed in thespace-time irreversibility of the intervention. The configurability of an urban-building pertinence requires, instead, not only the existence of a functional relationship constituted by the instrumental connection of the accessory work to the principal one, but also a structural element or a reduced and modest size of the artefact compared to the thing in which it is inherent; the smallness must be an unavoidable element, given that the work must not create an urban planning burden(2).
And indeed, translating the normative coordinates into the case examined, according to the judges it followed that in the specific case the extremes of a pergola awning were not identified. strict sensebut rather of a work which, although not intended to satisfy precarious needs, required enabling title taking into account the consistency, construction characteristics and its function(3). The building in question constituted a new construction and, as such, could be approved by means of a building permit and could not be built by means of a SCIA.
The recent ruling of the Council of State
Let us now look at the ruling of 23 July 2024, no. 6631, of the Council of State, section II. The Council of State reiterated the principle according to which, for a work to be considered a pergola awning, it must be a light structure and not permanently fixed to the grounddesigned to support a tent like weather protection element. Furthermore, the structure must be a mere accessory element to the tent and the covering elements must be easily removable and completely retractable, without creating an enclosed space that could alter the shape of the main building(4).
Furthermore, for a product to be included in the category of pergola awnings, characterised by the so-called free building regime, the main work must be constituted not by the structure itself, but by the awning, which element of protection from the sun or atmospheric agentswith the consequence that the structure must qualify in terms of mere accessory elementnecessary for the support and extension of the awning(5).
In this case, we were faced with “a wooden structure made up of pillars bolted to the roof terrace and inclined beams resting on them, on a surface area of approximately 25 m2, at an average height of 2.90 m”, all adjacent to a stair tower. The judges considered that it was a heavy structure, bulky, permanently fixed to the ground, designed to support not a tent but a real canopyof permanent impact and destination, in a restricted context; there was no tent as the main work, it was a roof impactful and stably anchored to the terrace and not just a pergola awning.
Note
(1) Council of State, section VI, judgment of 14 October 2019, no. 6979.
(2) TAR Campania, Naples, section II, judgment of 4 February 2020, no. 535; Council of State, section II, judgment of 22 July 2019, no. 5130; TAR Lazio, Rome, section II, judgment of 11 July 2019, no. 9223.
(3) TAR Campania, Salerno, section II, judgment of 19 February 2024, no. 458; Council of State, section VI, judgment no. 2206/2019, judgment no. 4777/2018, judgment no. 306/2017, judgment no. 1619/2016.
(4) Council of State, section II, judgment of 15 March 2024, no. 2503.
(5) Council of State, section VI, judgment of 2 November 2022, no. 9470.
