The building permit necessary for the construction of a swimming pool it’s a topic often the subject of judicial controversy: this is demonstrated by two recent rulings that we would like to point out to our readers, considering the practical relevance of the matter.
>> Are you interested in articles like this? Click here to receive them directly
A 20 m2 swimming pool is not a mere appliance
The Council of State, section. II, in the sentence. 2 October 2024, n. 7937, recalled that, by peaceful jurisprudence, there qualification of urban planning relevance is not applicable to works that are functionally characterized by their own autonomy with respect to the main work and are not co-essential to the same. It can only be configured when an objective exists functional servitude of the artefact compared to the main work, together with its reduced size (1).
For the purposes of qualifying a building as having urban relevance, not only the “quantitative” aspect is important, i.e. the modest size of the same, but also the qualitative and functional one inherent to the close accessory relationship compared to the main work. From a building point of view, in fact, a work can be qualified as relevant only if it is pre-ordained for aobjective need of the main building and functionally inserted at his serviceas well as without an independent market valueprecisely because it exhausts its purpose in the functional relationship with the main building. This notion “it can be invoked for works of modest size and ancillary to a main work, such as for example i small artefacts for the containment of technological systems and the like. Conversely, these are not the artefacts which, due to size and function, have their own autonomy with respect to the so-called main work so as to have a potential aptitude for a different and specific use.”(2).
Not a building used as a swimming pool, whether underground or not, can be traced back to the notion of relevance, as outlined by the jurisprudence mentioned above, since it, regardless of its size, lacks the functional requirementin its dual dimension of the close accessory relationship with the main building and the lack of an independent market value, as happens, however, for the technical volumes.
In this regard, jurisprudence has consistently established that “The swimming pool is a building type structure that affects with invasive works on the site where it is created, so configure one new construction ex art. 3, paragraph 1, letter. e), of Presidential Decree no. 380 of 2001 and not, as claimed by the appellant, an urban planning relevance of the residential building”(3) and that “swimming pools are not appurtenances in an urban planning sense as they involve lasting transformation of the territory”(4).
Consequently, according to the judges of Palazzo Spada, a swimming pool is not a mere relevance not small dimensions (20 m2 and 23.40 m3) which occupies almost all of the area intended for garden, enhancing both quantitative and qualitative datadue to the autonomous function performed by the work compared to the main building.
Swimming pool that does not exceed 20% of the total volume: it is relevant
To a swimming pool, even underground, which does not exceed 20% of the total volumethe appurtenant nature with respect to the main residence cannot be denied: this is what was stated by the TAR Abruzzo, Pescara, section. I, in the sentence. 10 July 2024, n. 215.
According to jurisprudence, in fact, “the installation of a swimming pool that does not have significant dimensions, built on private property as an exclusive complement to itmust be considered as an exclusive appurtenance of the existing property, being intended for its service and (…) these considerations can only extend to the fitting-out works and those concerning the service rooms”(5).
Relevance, in addition to modest dimensionsis characterized by a destination serving the main buildingobjective type: it is not susceptible to autonomous and separate use and has an accessory nature.
As for the dimensions, pursuant to art. 3 e.6) of Presidential Decree 380 of 2001, interventions that exceed 20% of the volume of the main building lose the relevance requirement; therefore, the jurisprudence, even recent, which refers the appurtenances only to technical rooms or garden furniture does not appear to be acceptable, given that it would result in a repealing interpretation.
As for the objective constraint of accessory and functional dependence, in the absence of other elements (for example, construction of a swimming pool intended for public and not private use), it is clear that the construction of a swimming pool in the open countryside would have no independent useso this requirement cannot be easily denied, except in an abstract and apodictic way.
The characteristics of the relevance, on a building and urban planning level, do not determine whether or not a building permit is necessary to create it, but only the effect that principal accessory sequiturand article 3 e.6) of Presidential Decree 380 of 2001 must be interpreted in this sense, with reference to the appurtenances: they they are not new construction interventions with independent reliefin the sense that their realization has no independent consideration on the urban and building plan, therefore they follow the title and discipline of the main building they access; this means that, if the volume and type of main construction can be achieved in a given area, but building permission is required, the swimming pool must be included in the building permit request but follows the accessibility of the main building without adding the necessary volume.
All this, of course, unless it concerns an area subject to landscape restrictions (as letter e.6) cit. specifies): in that case even the appurtenances take on autonomous importancebecause they are suitable for impacting the landscape, which is different and further than the mere urban and building structure.
Notes
(1) Ex multis, Council of State, sec. VII, sentence. 12 April 2024, n. 3341; sent. 19 August 2021, n. 5948; section VI, sentence. 13 January 2020, n. 309; section II, sentence. 22 July 2019, n. 5130.
(2) See, ex multisCouncil of State, sec. VI, sentence. 19 May 2023, n. 5004; sent. 4 January 2016, n. 19; sent. 24 July 2014, n. 3952; section V, sent. 12 February 2013, n. 817; section IV, sentence. 2 February 2012, n. 615; section VII, sentence. 3 April 2023, n. 3422.
(3) Council of State, sec. VII, sentence. 2 January 2024, n. 44.
(4) Council of State, sec. VI, sentence. 12 April 2024, n. 3341.
(5) See Council of State, section. VI, sentence. 3 October 2019, n. 6644; section V, sent. 16 April 2014, n. 1951; TAR Campania, Salerno, section. II, sentence. 20 September 2022, n. 2407.
In collaboration with studiolegalepetrulli.it
