Distances and attic recovery: general rule
Even in the case of attic recovery, the distance requirements must be respected contained in Ministerial Decree no. 1444/1968: this is what was stated by the TAR Lombardia, Milan, section IV, in the sentence of 8 July 2024, no. 2087.
Administrative jurisprudence has in fact now clarified that:
- «“where there is a even just changing the height of the building (as in this case) the extremes of the new construction, to be considered as such also for the purposes of calculating distancescompared to the adjacent buildings” and that “theaccording to the distance rule legal between constructions referred to in paragraph 2 of art. 9 cit. It is also applicable to superstructures”, having to be respected even in the case of recovery of attics (cfr. State Council, Section II, 10/19/2021 n. 7029; in the same sense, ex multis, State Council, Section II, 10/25/2019, n. 7289; 05/18/2021, n. 3883)»(1);
- «the intervention, although aimed at recovering the attic, is still subject to compliance with state regulations regarding distances between buildings. (…) There is a need to respect the distances of 10 m between windowed walls of facing buildingsgiven that the derogation provided for by the regional law (art. 64, paragraph 2, LR n. 12/2005) to the limits and requirements of the municipal planning instruments “cannot be considered to be extended to the civil law provisions on distances, nor can it operate in cases in which the urban planning instrument reproduces higher-ranking regulatory provisions, of a mandatory nature, such as those of art. 41 quinques of law 17 August 1942, n. 1150, introduced by art. 17 of law 6 August 1967, n. 765, and art. 9 of Ministerial Decree n. 1444 of 1968, in the part in which they regulate the distances between buildings (Council of State, section VI, 05/03/2014, n. 1054)»(2).
Nor does the circumstance that the real estate unit being recovered and those in front are part of the same building comprising several independent dwellings exclude the application of the rules on minimum distances, since the minimum distances are prescribed by art. 9 of Ministerial Decree no. 1444/1968. referable to all walls (of which at least one has a window) that face each othereven if they refer to different portions of a building in the unitary complex. On this point, the jurisprudence has clarified that the referability of the aforementioned provision to the hypothesis of two buildings forming part of the same property cannot be excluded, since the hygienic-sanitary purposes of the regulatory discipline requires its application even in similar cases. Indeed, since art. 9 of the Ministerial Decree no. 1444/1968 is aimed at “to establish a suitable cavity between buildings in the public interest, and not to safeguard the private interest of the owner of the building in privacy (see Cass. Civ., Sez. II, 261.2001 n. 1108), the circumstance that they are bodies of the same building or of distinct buildings cannot have any distinctive effect”(3).
The minimum distances, therefore, find application – as they are functional to the protection of general interests connected to collective needs for hygiene and safety and not of individual property rights – even in the case in which the two facing buildings belong to the same owner, or in the case in which the opposing window walls belong to the two bodies of a single construction(4).
Confirmation by the Council of State
In confirmation of what has been reported so far, we point out what was stated by the Council of State, section II, in the sentence of 29 July 2024, n. 6804.
As highlighted by the judges of Palazzo Spada, according to the legitimate jurisprudential orientation(5), art. 9, second paragraph, of the aforementioned decree, having been issued by delegation of art. 41-quinquies of the law of 17 August 1942, n. 1150 (so-called urban planning law), added by art. 17 of the law of 6 August 1967, n. 765, has the effect of State Lawso that its provisions on the subject of mandatory limits on density, height and distance between buildings they also impose themselves and prevail over any conflicting provisions of subsequent local regulationswhich are replaced by automatic insertion.
Those mandatory limits of density, height and distance between buildings provided for by art. 9, paragraph 2, of Ministerial Decree 2 April 1968, no. 1444, also apply to superstructures integrating new constructions(6); the consolidated administrative jurisprudential direction(7) is also in the same sense, according to which the applicability of Ministerial Decree 1444/1968 must be affirmed also in relation to changes in heightas the addition must also be considered as a new construction and can therefore only be carried out in compliance with the regulations on legal distances from existing buildings on the bordering land.
On this point, jurisprudence has recently established that where there is a modification even just in the height of the building, the following are identifiable: extremes of the new constructionto be considered as such also for the purposes of calculating distances, with respect to adjacent buildings and that the rule of legal distances between buildings referred to in paragraph 2 of art. 9 cit. is also applicable to superstructures, having to be respected even in the case of recovery of attics(8).
This provision is also applicable even in the case in which only one of the two facing walls has windows and regardless of whether this wall is that of the new building or the pre-existing building, or whether it is at the same height or at a different height to the other(9), without any derogation, not even in the case in which the new construction is intended to be maintained at a lower level than that of the windows opposite(10). Consequently, the provision must be applied regardless of the height of the buildings opposite and the parallel course of their walls, provided that there is at least one segment of them such that the advancement of one or both facades leads to their meeting, even for that limited segment(11).
Notes
(1) Council of State, section II, judgment of 19 November 2021, no. 7741.
(2) TAR Lombardia, Milan, section II, judgment of 24 December 2019, no. 2743; judgment of 23 April 2021, no. 1037.
(3) TAR Lombardia, Brescia, section I, judgment of 8 July 2010, no. 2461; Milan, section II, judgment of 24 December 2019, no. 2743; section IV, judgment of 30 March 2022, no. 714.
(4) Council of State, section IV, judgment of 8 May 2013, no. 2483; TAR Florence, section III, judgment of 24 March 2020, no. 360.
(5) See Cass., SU, sentence no. 14953 of 7 July 2011.
(6) See, among many others, Civil Court of Cassation, section 2, sentence no. 3739 of 15 February 2018.
(7) Council of State, section II, ruling no. 7741/2021.
(8) Council of State, section II, judgment of 19 October 2021, no. 7029; in the same sense, ex multisjudgment of 25 October 2019, no. 7289; judgment of 18 May 2021, no. 3883.
(9) Cass., sect. II, sentence 1 October 2019, n. 24471.
(10) Council of State, section IV, judgment of 30 October 2017, no. 4992.
(11) Council of State, section V, judgment of 11 September 2019, no. 6136.
