A building intervention consisting of reconstruction of the first room of the portion of the collapsed stone masonry vault, in rehabilitation of the barrel vault of a second room, in the creation of reinforced concrete platbands on all openings existing, in the creation of waterproofing on the extrados and in ancillary interventions it cannot be traced back to the notion of building renovation former lit. d) of the art. 3, paragraph 1, Presidential Decree no. 380/2001, but rather to that of conservative restoration referred to in the letter. c) of the same article.
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The sentence
The traceability of the intervention described above to conservative restoration was highlighted by TAR Campania, Salerno, section. II, in the sentence. 3 October 2024, n. 1789not sharing the thesis of the municipal technical office which believed it could qualify the intervention in question in terms of restructuring.
Pursuant to the last cited provision, “restoration and conservative rehabilitation interventions, building interventions aimed at preserve the building structure and ad ensure its functionality through a systematic set of works which, while respecting the typological, formal and structural elements of the organism itself, also allow the change of intended use provided that with such compatible elementsas well as compliant with those envisaged by the general urban planning instrument and the related implementation plans. These interventions include the consolidationThe restoration and the renewal of the constituent elements of the building, the insertion of the accessory elements and systems required by the needs of the use, theelimination of foreign elements to the building body“.
The difference between renovation and restoration and conservative rehabilitation
As stated by the Salerno judges, restoration or conservative rehabilitation consists of recovery interventions that preserve the pre-existing structuresensuring compliance with the typology, structure and conformation of the artefact, i.e. based on respect and maintenance of the typological, formal and structural elements of the building, without changes in identity, structure and physiognomy of the same, and without expansion of volumes and surfaces (the increase in surface area or volume entails, on the contrary, a transformation of the building which requires the issuing of a building permit and exceeds the limits of the intervention category (1)).
The jurisprudence is quite clear in limiting the indicative parameters of the category of building renovation. It is assumed, in principle, that, within the scope of building renovation, those interventions “aimed at transforming building organisms through a systematic set of works that can lead to a building structure that is completely or partially different from the previous one; these interventions include the restoration or replacement of some constituent elements of the building, the elimination, modification and insertion of new elements and systems”(2).
To establish whether an intervention should be ascribed to the field of building renovation rather than that of restoration or conservative rehabilitation, it is necessary to carry out a overall and systemic evaluation of the sameverifying whether or not the works carried out have involved the renewal of constituent elements of the building and an alteration of the original physiognomy and physical consistency of the same, incompatible with the concepts of restoration and conservative redevelopment which instead presuppose the creation of works that leave the original structure unchanged(3).
In order for it to be recognizable as a building renovation intervention and not a conservative restoration one, it is sufficient that the distribution of the internal surface and volumes or the order in which the different portions of the building were arranged are modified, for the sole purpose of making it easier the existing intended use; this determines the renewal of the constituent elements of the building and an alteration of the original physiognomy and physical consistency of the property, incompatible with the concepts of extraordinary maintenance and conservative restorationwhich presuppose the creation of works that leave the structure of the building and the internal distribution of its surface unchanged(4).
The need for the pre-existence of the building
If it is true that conservative renovation interventions are, by regulatory definition, exclusively those aimed at “preserving” the existing building organism, it follows that, when the building collapses, it is not possible to qualify the reconstruction intervention as rehabilitation and restoration, but as a building renovation interventioneven if aimed at restoring the pre-existing consistency of the building (5). And in fact, the art. 3, paragraph 1, letter. d), of the Consolidated Building Act, has expressly classified as building renovation interventions aimed at restoring buildings, or parts of them, which may have collapsed or demolished, through their reconstruction, provided that it is possible to ascertain their pre-existing consistency.
Administrative jurisprudence has, in this regard, stated that restoration or conservative rehabilitation consists of recovery interventions that preserve the pre-existing structures, ensuring respect for the typology, structure and conformation of the artefact, and “conceptually presupposes the existence of a building on which to intervene, with the consequence that, if the building itself has collapsed, whether voluntarily or accidentally, the reconstruction could never constitute restoration or conservative rehabilitation (TAR Tuscany, III, 8.3.2012 , no. 437). It follows that the disappearance of the ruined building to which the planned recovery intervention refers has determined the extinction of the object of the trail and the impossibility of carrying out the work envisaged therein; the reconstruction of the collapsed building could not in fact be ascribed to the category of restoration or rehabilitation, but, if anything, to that of building renovation”(6).
Notes
(1) TAR Tuscany, section. III, sentence. November 29, 2021, n. 1595; TAR Campania, Naples, section. III, sentence. 7 June 2024, n. 3612; TAR Lazio, Rome, section. II excerpt, sentence. 16 February 2024, n. 3160.
(2) TAR Campania, Salerno, sec. II, sentence. 20 July 2022, n. 2107.
(3) Council of State, sec. V, sent. 12 November 2015, n. 5184; TAR Campania, Salerno, section. II, sentence. 20 July 2022, n. 2107.
(4) Council of State, sec. V, sent. 17 March 2014, n. 1326; sent. 17 July 2014, n. 3796, sec. IV, sentence. 14 July 2015, n. 3505.
(5) TAR Campania, Salerno, sec. II, sentence. 3 October 2024, n. 1789.
(6) TAR Tuscany, sec. III, sentence. 25 June 2018, n. 934.