The pergotende they continue to be Matter of litigationdespite the stitches reached by the jurisprudence in recent years and recently codified by the legislator in the new text of art. 6, paragraph 1, lett. B-ter, of the Consolidated Building Text (DPR no. 380/2001).
We point out to readers two pronunciations in which they have had Two cases with opposite solutions.
Tent with tensile structure at the restaurant service: it is not a freely installed PergotenDa
As mentioned by TAR Lombardy, Milan, Section IV, in the sent. January 18, 2025, n. 185so that we can correctly talk about freely installed pergotendas, “It is necessary that the work, for its structural characteristics and for i materials used, does not determine the stable realization of new volumes/useful surfaces. It must therefore be a light structure, not permanently fixed to the ground, suitable to support a “tent”also in plastic material (CD “Pergotia”), provided that:
– the main work is constituted by the “tent” as an element of protection from the sun and from atmospheric agentsaimed at a better use of the outdoor space;
– The structure represents a mere accessory element with respect to the tent, necessary for the support and entertainment of the same;
– the coverage and closing elements (the “tent”) are not only easily removable but also completely retractablein plastic or fabric material, however without elements of fixity, stability and stay such as to create a closed space, permanently configured that can alter the shape and prospect of the “main” building (Cons. State, section IV, 1 July 2019, n. 4472; 2016. N. 1619). In other words, in order to have a “pergotenda” and not already a “canopy”, it is necessary that any plastic coverage is completely retractable, that is “Packable”so as to exclude the realization of new volume (on this point, see Cons. State, Section VI, April 27, 2021, n. 3393; Cons. State, Section II, 28 January 2021 n. 840)“(1).
Consequently, according to the Milanese judges, It is not a freely installable pergotenda a retractable curtain to shade a part of the courtyard of relevance of a restauranthaving dimensions of about 15.55 mx 2.55 me a height variable from 2.45 but 3.25 me consisting of “1) sliding plastic curtain; 2) with plastic frame without locking with a fan opening; 3) wooden fence consisting of pallets positioned vertically; 4) Aluminum tensile structure fixed to the ground and attached to the building“.
The structural configuration of the artifact and its destination for permanent needs over time do not allow to qualify it as a precarious work falling within the free construction, but subordinate its realization to the acquisition of a Building permitalso considered the Functional connection with the catering activity carried out in the premises of the property it accesses. Nor can we speak of precariousness (2) of the asset, considering its structural characteristics and the functional destination impressed on the same, that is, theattitude to meet stable needs over timealso of periodic nature; The artifact in question is not in concrete terms to use for contingent purposes, but is intended for a prolonged and repeated use over time, or the carrying out a commercial activityand therefore falls within the list of new buildings (3), having to respect the rules related to these interventions and requesting the issue of the building permit (in the specific case, building permit).
Pergotends with precarious lateral windows
As reiterated by Council of State, section VI, in the sent. January 27, 2025, n. 607the pergotendas represent free construction interventions If the pre -existing external use of the places remainsof which it comes only enhanced the use with a temporary shelter from the sun, rain, wind and humidity making the permanence outside (4), more pleasant for a longer period of time, without creating an environment in any way similar to the internal onedue to the lack of necessary stability, an suitable thermal insulation and adequate isolation from rain, humidity and connected condensing phenomena (5). In fact, in such cases, Pergotenda does not present characteristics such as to constitute a relevant building organism, involving transformation of the territory, due to the non -existence of a permanent closed space (6).
Even in the face of jurisprudential oscillations, the Council of State has already stated that Pergotenda to which a precarious perimeter closure is added can also be included in the free building activity(7). In fact, art. 6 of Presidential Decree 380 of 2001 establishes that the free construction activities include the Furnishing elements of the pertinent areas of the buildings, category in which, in the indications of the Annex to the Ministerial Decree of 2 March 2018 “Glossary containing the non -exhaustive list of the main building works that can be achieved in free building activity regime”, At n. 50, the pergotendas are included, whose characteristics are reported by the jurisprudence to the lack of elements of fixity, stability and permanence of closing the outdoor spaces aimed at a better use of the same.
According to the judges of Palazzo Spada, The side windows do not lose the structure the characteristics of precarious delimitation of the outdoor space nor transform the outdoor spaceas they make it only greater the livability, according to the indications developed by the jurisprudence with reference to the pergotendas. In fact, in this case, that transformation of the building body that characterizes building renovation is missing, as the terrace maintains its original function of outdoor space and comes made more accessible precisely as a pertinent area of the apartment.
The case in which the external area, as well as delimited by strict and removable windows, is connected to the apartment plants and equipped with heating or other ventilation systems, as, in this case, the functional destination of the space.
The retractable coverage and the closure with the side windows, openable and easily removable, does not fail the external destination of the spaceof contained dimensions, thus delimited. In fact, the lateral windows do not lose its precarious nature to the structure nor transform the outdoor space, as they only make it greater the livability according to the indications developed by the jurisprudence with reference to the pergotendas.
Notes
(1) Council of State, section II, sent. June 6, 2023, n. 5567 and sent. March 15, 2024, n. 2503; Section VI, sent. November 20, 2024, n. 9332; sent. October 18, 2024, n. 8349 and sent. 23 July 2024, n. 6631; cf. also Cass. Pen., Section III, sent. October 28, 2024, n. 39596.
(2) According to the consolidated jurisprudence, “The precariousness of the work, which exempt from the obligation to have the building permit, pursuant to art. 3, paragraph 1, letter e. 5, DPR n. 380 of 2001, in fact, postulates a specific use and temporally delimited of the asset and does not admit that the same can be aimed at satisfying (not exceptional and contingent needs, but) permanent over time. In fact, they cannot be considered artifacts intended to meet merely temporary needs those intended for a persistent use over time, so that the alteration of the territory cannot be considered temporary, precarious or irrelevant“(Council of State, Section VII, sent. 12 December 2022, n. 10847; Section VI, sent. 5 July 2024, n. 5977; sent. March 4, 2024, n. 2086; sent. 27 May 2021, n. 4096; 1529;
(3) Council of State, section II, sent. March 15, 2024, n. 2503.
(4) Council of State, section VI, sent. December 28, 2022, n. 11530.
(5) Council of State, section VI, sent. April 27, 2021, n. 3393.
(6) Council of State, section VI, sent. November 29, 2019, n. 8190; sent. May 25, 2020, n. 3309; sent. April 3, 2019, n. 2206.
(7) Council of State, section VI, sent. April 3, 2019, n. 2206; sent. October 14, 2019, n. 6979; sent. November 29, 2019, n. 8190.
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