The recent sentence of the Tar Sicily n. 415/2025 raised a fundamental question in construction law: When can a work be considered abusive and subject to demolition?

The case concerned a commercial activity to which the Municipality had imposed the demolition of some structures deemed irregular. However, the Court partially accepted the appeal, recognizing that Not all contested works required a building permitsince some included in the context offree construction.

According to the TAR, the structures precariously installed, easily removable and free of volume do not require building authorization and cannot be considered abuse. Conversely, permanent extensions and stable closures that modify the shape of a building are subject to more stringent rules.

But what are the criteria for distinguishing a building abuse from a free construction intervention? And when a demolition order can be contested?

Let’s find out in detail.

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The contested works: between building abuse and free building

In the case examined by the Tar Sicily, the Municipality had ordered the demolition of various works carried out within a commercial activity, considering them abusive since they are without a valid building permit. However, the Court has distinguished between the various contested structures, evaluating their effective nature and their urban impact.

Some of the interventions concerned the creation of light roofs, such as shading sheets and sails, installed to improve the use of the outdoor spaces. The TAR recognized that these works, being without stable and easily removable closures, fall within thefree construction and do not require any authorization. Their function, in fact, is exclusively to protect against atmospheric agents, without involving an increase in the volume of the building.

This interpretation is in line with previous judgments of the Council of State, which have clarified as similar interventions, such as Pergotende, do not constitute new constructions if they do not permanently change the structure of the main building.

The case of the permanent extensionsmade through the closure of spaces with windows and the installation of fixed systems. These interventions determined an increase in the volume of the building and an expansion of the useful surface, with a significant urban impact.

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The decision of the Tar Sicily: an important precedent

With sentence no. 415/2025, the TAR Sicily partially accepted the appeal of the company owner of the commercial activity, partly canceling the demolition order issued by the Municipality. The Court recognized that some of the disputed works were actually illegal, as they created a stable expansion of the building without the necessary building authorization.

However, he deemed the demolition of light and temporary structures illegitimate, such as the covers in the towel and shadow sails, considering them Free construction interventions not subject to building permit.

A central element of the decision was the principle of proportionalityaccording to which the public administration must take adequate and not excessive measures compared to the objective to be achieved. The TAR censored the work of the Municipality for imposing an indiscriminate demolition, without distinguishing between permanent works and removable structures. According to the Court, a less invasive intervention – such as the limitation of the demolition order only to volumetric extensions – would have been more in accordance with the principles of good administration.

The sentence is part of a consolidated jurisprudential framework, which provides for a clear distinction between the real building abuses and the minor interventions that do not significantly alter the structure of the territory. This pronunciation could constitute a reference for similar cases, clarifying the limits within which municipalities can exercise the power of repression of building offenses.

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Can the “save house” decree stop a demolition? The TAR clarifies

One of the topics raised by the applicant concerned the so -called “Save Home” Decree (Legislative Decree 69/2024)recently received in Sicily with the Regional Law n. 27/2024. The defense argued that some of the disputed works could have been healthy in the light of the new provisions, which provide for greater flexibility in the regularization of small building abuses.

However, the TAR rejected this thesis, stating that The legislation cannot have retroactive effects. The Court specified that the demolition measure had been adopted before the entry into force of the new law and, therefore, had to be evaluated according to the legislation in force at the time of the facts.

This means that, although it is possible for the applicant to present today a sanatorium request on the basis of the new rules, this possibility does not affect the legitimacy of the demolition already arranged. The sentence therefore reiterates a fundamental principle of administrative law: regulatory changes they cannot retroactively cancel deeds already adoptedunless expressly provided for by law.

The case demonstrates how the “save house” decree can represent an opportunity to regularize certain situations, but only If the amnesty applications are submitted before the Administration adopts definitive demolition measures.