The building qualification of the swimming pool as a new construction: two recent sentences


Emma Potter

The swimming pool cannot be considered a mere appurtenance but, by virtue of theimpact on the state of the places and of his potentially independent use with respect to the main residencemust be qualified as new construction requiring the prior release of the permission to build: is the summary of two recent sentences that we report to our readers.

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The swimming pool cannot be classified as an appurtenance in an urban planning sense

The TAR Lombardia, Milan, section IV, in the sentence of 27 June 2024, n. 1992he considered excluding the appurtenant nature of a swimming pool of significant size (a portion equal to 10.10 metres by 6.10 metres to which is added a portion measuring 1.95 metres by 4.65 metres, with a depth equal to 1.20 m.), with Bolted galvanized steel structure coated with plasterboard panel that protrudes from the ground level for 0.65 meters) and for thefunctional autonomy with respect to the owned buildinggiven the use of an area different and further than that occupied by the house, from which it was separated by a public road and equipped with a direct and independent access.

As is known, administrative jurisprudence circumscribes the notion of urban relevance providing a narrower definition than the civil one. The pertinent nature “can be recognized, for building purposes, in the presence of a objective functional and instrumental connection between the accessory thing and the principal thing, a connection such as to exclusively allow the thing to be used for a lasting appurtenant purpose, which emerges if the appurtenant work has a small and modest size with respect to the thing to which it pertains, such as to make the work without an independent market value And not involving an urban planning burden or a significant alteration of the land use; therefore, an abuse cannot be considered merely appurtenant if, although having a significantly reduced proportion compared to the main work, it is independently usable, has undisputed characteristics of significant size, of independent market value, of significant urban planning load, and occupies a different and additional area compared to that already occupied by the pre-existing main building. Therefore, in building matters, the appurtenant nature refers only to works of modest size and completely accessory to the main one, such as small structures for containing technological systems and the like, but not also to works which, from the point of view of size and function, are characterised by their own autonomy compared to the one considered principal and are not coessential to it”(1).

It was observed, in particular, that “swimming pools are not appurtenances in the urban planning sense as they involve lasting transformation of the territory. The functional aspect relating to the use of the artifact is also shared by other recent jurisprudence, according to which all the structural elements contribute to the calculation of the volume of the artifacts, whether they are buried or not, and among them must be understood also the swimming pool, as it cannot be classified as an appurtenance in the urban planning sense due to the autonomous function that it is able to perform with respect to that of the building to which it accesses. The swimming pool, in fact, unlike other artifacts, cannot be attracted to the urban planning category of mere appurtenances, as it is not necessarily complementary to the use of the homes and is not only a leisure equipment, but integrates the extremes of the new construction, as it gives rise to a building structure that invasively affects the site of its location and therefore requires the prior release of the appropriate title ad aedificandum, consisting of the building permit“(2).

The swimming pool as a new construction

Similarly, the non-attributability of the swimming pool to the list of appurtenant works was reiterated by the Council of State, Section II, in the sentence of 21 June 2024, n. 5538(3), who confirmed that the concept of relevance in the urban planning and building sense is completely different from the civil one and the swimming pool, considered abstractly, cannot be considered as such, being a building-type structure that affects invasive works on the site where it is made; said artifact, therefore, configures a new construction former art. 3, paragraph 1, letter e), of the Consolidated Building Law (Presidential Decree no. 380/2001) and not an urban planning appurtenance of the residential building.

The judges of Palazzo Spada recalled that all structural elements contribute to the calculation of the volume of the artefacts, buried or notand the swimming pool must also be included among them, as it cannot be classified as an appurtenance in an urban planning sense due to the autonomous function that is able to perform compared to that of the building it accesses. In fact, the swimming pool cannot be included in the urban planning category of mere appurtenances, since, on a functional level, it is not necessarily complementary to the use of housing and it is not always a mere piece of recreational equipment like a swing or a slide installed in gardens.

Furthermore, the qualification of the swimming pool as an appurtenance is also prevented by the consideration that it entails a lasting transformation of the territory and, from an urban planning perspective, it has an autonomous function with respect to that of the building it accesses; for this reason there is no coincidence with the relative civil law concept.

In this regard, reference can be made to the case law(4) on the concept of urban planning relevance according to which this concept can be invoked for works of modest size and accessory to a principal work, such as for example small structures for the containment of technological systems. and the like; vice versa, such are not the artefacts which, due to their size and function, possess their own autonomy with respect to the so-called principal work, so as to have a potential aptitude for a different and specific use. These latter concepts appear to be well suited to the specific case which is the subject of the Palazzo Spada ruling, in which there was a swimming pool measuring 6.60 x 12.60 m, with surrounding paved area in stoneware measuring 13.70 x 15.00 m.

If the pool is a new construction, it follows that need for prior release of building permitwith necessary compliance with urban planning and landscape protection provisions. In this specific case, for example, such compliance could not be found, given that:

  • the area was classified as “E1” agricultural – periurbanwhich the PUC had designated for agricultural uses, in which only the construction of agricultural buildings and structures and interventions for the recovery and reuse of existing building heritage were permitted;
  • The NTAs only allowed the maintenance and the strengthening of productive activities connected with agriculture;
  • there was a previous deed of easement, according to which the land relating to the building would have been used solely for greenery.

Among the case law, we recall that the quality of new construction has been recognized in the following cases:

  • 6m x 12m in-ground swimming pool, with a maximum depth of 2m(5);
    private swimming pool, uncovered and for recreational purposes, partly underground (approximately 1.00 m) and partly above ground (approximately 0.50 m) with dimensions of 25.20 m2 (5.60 x 4.50 m) and a constant height of 1.35 m”(6);
  • inground swimming pool with a total surface area of ​​approximately 62.50 m2.”(7);
  • swimming pool measuring 11.00 x 6.40 m x max height 2.32 m”(8);
    a 120 m2 swimming pool(9).


(1) Council of State, Section VI, judgment of 14 March 2023, no. 2629; Section II, judgment of 11 November 2019, no. 7689; Section VI, judgment of 7 March 2022, no. 1605 and judgment of 9 June 2023, no. 5680.
(2) TAR Campania, Naples, section III, judgment of 9 September 2020, no. 3730; Council of State, section VI, judgment of 21 November 2023, no. 9955; TAR Piedmont, section II, judgment of 5 April 2023, no. 315; judgment of 7 October 2022, no. 826; judgment of 2 August 2022, no. 703; TAR Lazio, Rome, section II extract, judgment of 21 June 2022, no. 8325.
(3) See, in this sense, Council of State, section VII, judgment of 2 January 2024, no. 44.
(4) Council of State, section VI, judgment of 7 January 2020, no. 100; judgment of 29 November 2019, no. 8192; judgment of 4 January 2016, no. 19 and judgment of 24 July 2014, no. 3952; section V, judgment of 12 February 2013, no. 817.
(5) TAR Marche, section I, sentence of 21 July 2023, n. 487.
(6) TAR Puglia, Lecce, section I, sentence 18 January 2022, n. 76.
(7) TAR Puglia, Lecce, section I, sentence of 26 May 2022, no. 845.
(8) TAR Campania, Naples, section VIII, sentence of 21 December 2020, no. 6324.
(9) TAR Lazio, Rome, section II, extract, sentence of 31 August 2023, no. 13496.

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