From pergola to closed veranda
The matter that came to the table of the Council of State arises from the Municipality’s appeal of the ruling of the TAR of Puglia which had accepted the appeal of a private individual, owner of a property intended for a restaurant and pizzeria. Anchored to this, the private individual had been authorised, via a building permit issued in 2020, to install a pergola-type product with an aluminum load-bearing structure and an openable roof with a waterproof sheet, measuring approximately 18.50 x 8.50 metres.
Following an inspection carried out on 26 October 2021 by the local police and the municipal technical office, however, the subsequent installation of sliding glass doors on tracks, without a frame, positioned on part of the perimeter of the authorized pergola was ascertained. Considering that this work had resulted in the hermetic closure of the surface with the consequent creation of a new volume that was not approved, the Municipality had issued the demolition injunction, i.e. the removal of the last closure added. However, the owner of the pizzeria challenged the injunction, and the TAR ruled in his favour.
The first yes from the TAR and the Municipality’s appeal
The judge of first instance initially accepted the private individual’s reasons, canceling the demolition injunction in consideration of the fact that the windows in question, as they slide on tracks and positioned on only one side of the structure, did not determine a permanent or stable closure of the space. Consequently, according to the judges, even once installed, the area did not undergo changes in its essential features (volume, shape, commercial surface area) nor did it show a volumetric increase or a different use compared to the already existing one of outdoor catering.
The Municipality appealed, arguing instead that the installation of the glass had led to the total closure of the space. The structure of the pergola, in fact, was already delimited by masonry walls on three sides: the placement of the movable glass window on the fourth side, although structurally flexible, completed the tax perimeter, effectively determining the closure of the building. Appeal fully accepted by the Council of State, which overturned the TAR ruling on the basis of the evaluation of the work within the real estate context in which it had been inserted.
Overall evaluation always mandatory
In fact, the Council of State recalled the now consolidated jurisprudential orientation according to which to evaluate the abusive nature of a building work it is necessary to relate it to the real estate context in which it is inserted, in order to appreciate its overall impact on the territory, therefore not limiting itself to the evaluation of the individual work itself but looking at the overall result of the sum of the various installations. And, in this specific case, the technical and photographic checks carried out by the office had confirmed that the pergola was not configured as an isolated element in the void, but insisted on a space delimited by pre-existing walls on three sides. The installation of the mobile glass window on tracks on the only side that remained open, therefore, completed the perimeter of the building, so that its nature changed from an open space to a totally closed volume.
The intervention thus generated the emergence of a new volume, an operation for which the building code requires the prior issuing of a building permit. In the absence of a suitable qualification, the demolition order and the related restoration of the state of the places are duly and legitimate actions on the part of the public administration.
Summary table and sentence in pdf
Based on the ruling, which can be consulted in full and downloaded below, here is a summary table with the distinction between the legitimacy of the structure without new building permits and the need for a building permit:
|
Type of Intervention / Condition |
When the work does NOT require new titles (open structure) |
When you NEED a Building Permit (new volume) |
|---|---|---|
|
Configuration of the surrounding real estate context |
When the structure is installed in an open space that does not undergo stable or total closure, keeping its essential features unchanged (shape, surface and volume). |
When the work is inserted in a context in which the area is already delimited by walls on three sides and the intervention closes the only side that remains open. |
|
Installation of sliding glass doors |
The installation of only the authorized pergola with an opening canvas or elements that do not create a permanently closed environment. |
When the addition of movable glass doors sliding on tracks (even if without a frame) determines, together with the pre-existing walls, the total closure of the perimeter. |
|
Volumetric impact and transformation of the state of places |
When the intervention does not involve any volumetric increase or an undue extension of the useful surface area for commercial purposes. |
When the final effect of the intervention involves the transformation of the structure from open to completely closed, resulting in the creation of a new volume. |
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