A strictly necessary rule?
The first question I asked myself when I started studying the new decree was: this is a strictly necessary rule? Probably not, given that the jurisprudence(2) is now clear in holding that in the case of pergo awnings, awnings, pergola awnings and the various variants that commercial practice has created over time, what matters is precisely the awning , while the structure is intended as a mere support.
By way of example only, the Council of State, sec. II, in the sentence. 15 March 2024, n. 2503, he recalled that in the pergola (but the reasoning seems to be extendable to the different tent variants):
- the main work consists, in fact, of the awning as an element of protection from the sun and atmospheric agents, aimed at better use of the external space;
- the structure represents a mere accessory element with respect to the tent, necessary for its support and extension;
- the covering and closing elements (the awning) must not only be easily removable, but also completely retractable, made of plastic or fabric, in any case without elements of fixity, stability and permanence such as to create a closed, stably configured space that may alter the shape and elevation of the main building.
The new rule is nevertheless useful because, positivizing the aforementioned orientation, helps to clarify.
Going into detail, let's remember some concrete cases taken from jurisprudence and which, in summary, are confirmed in the new rule:
- “The awnings, considering their “precariousness” from the point of view of both the materials – where the predominant element is constituted by the awning – and their use, limited to the summer period, fall within the free construction activity (…)”(3);
- a metal structure that acts as a mere accessory to a tent, which simply supports without permanently closing the space, does not require a building permit(4);
- “Roller blinds constitute furnishing accessories and cannot even remotely be classified as building works”(5);
- “The installation of plastic curtains that slide in small metal guides affixed to the wall (…) is not a work requiring a building permit, as it is a minor intervention – in which the prevalence of the curtain element is evident – and aimed at furnishing of an external space (…)”(6).
Equally useful is the clarification that the presence of movable and/or adjustable elements in the support structure it does not change the “free” nature of the tent.
Attached or attached: what does it mean?
The standard then specifies that the tent must be “attached or attached to buildings or real estate units”: the phrase deserves a brief insight.
The term “leaning” it should mean that the tent is fixed and/or placed against a wall of the building; the term “annexed”instead, would mean the connection with the building in terms of adjacency and, therefore, relevance.
The use of the disjunction “or” indicates theindifferencefor our purposes, of the occurrence of the first or second factual condition.
The second part of the rule, firstly, confirms the cited jurisprudencereiterating that curtains cannot lead to the creation of a stably closed space, with consequent variation in volumes and surfaces; secondly, he focuses on the structure of the curtains and the visual impact, specifying that “they must have ctechnical-constructive characteristics and aesthetic profile such as to minimize the visual impact and bulk apparent and must harmonize with the pre-existing architectural lines”.
This is a phrase that focuses on necessity, in line with consolidated jurisprudence(7):
- from the modesty of the tent compared to the reference real estate unit;
- of theuse of precautions (colours, materials, installation methods, etc.) that allow a harmonious insertion with the real estate unit.
Easy to predict evaluative differences between private individuals (and their trusted consultants) and the municipal technical office: a possible solution is that of adapt local regulationsin order to provide guidelines that are as objective as possible.
Note
(1) Presidential Decree no. 380/2001.
(2) See, for example, TAR Campania, Salerno, sec. II, sentence. 16 May 2024, n. 1080; TAR Lombardy, Milan, section. II, sentence. 18 October 2023, n. 2376; TAR Lazio, Rome, section. II bis, sentence. 25 January 2022, n. 830.
(3) TAR Campania, Salerno, sec. II, sentence. 2 August 2023, n. 1895.
(4) TAR Liguria, sec. I, heard. 20 December 2021, n. 1076.
(5) TAR Campania, Salerno, sec. II, sentence. 4 March 2019, n. 360.
(6) TAR Campania, Naples, sec. IV, sentence. 5 January 2020 n. 48.
(7) On the need for modest dimensions see. TAR Campania, Salerno, section. II, sentence. 16 May 2024, n. 1080; Council of State, sec. VI, sentence. 11 April 2014, n. 1777; TAR Marche, section. I, heard. 20 January 2020, n. 469; TAR Calabria, Reggio Calabria, sentence. 4 July 2019, n. 439; in this it seems to confirm what was stated by the Council of State, section. VI, in the sentence. 5 October 2018, n. 5737, with reference to the pergotenda, according to which it is not such “if the main structure is solid and permanent and, above all, such as to determine a clear variation in the shape and elevation of the building”.
