They are not mere precarious works those that perform continuous function

The reference rules

According to art. 3, letter e), of Presidential Decree no. 380/2001 (entitled “Definitions of building interventions“), Are” interventions of new construction“, Those of building and urban planning transformation of the territory not falling within the categories defined for previous letters. However, the construction of above -ground or underground building artefacts are to be considered such, or the expansion of those existing outside the existing shape, without prejudice, for the relevant interventions, the provisions of letter E.6).

The following article 6, paragraph 1, e-bis letter) instead includes, in theFree building activitythe works aimed at satisfying objective needs, contingents and temporaryas long as they are destined to be immediately removed from the cessation of the temporary need and, in any case, within a term not exceeding one hundred and eighty days.

The notion of precarious work according to administrative jurisprudence

From these forecasts the jurisprudence has deduced the notion of precarious worknot subject to qualifying. In particular, it was stated that regarding the requirements that must have a construction work to be considered precarious, two discreet criteria can be hypothesized in the abstract:
1) structural criterionby virtue of which precarious is what is not permanently fixed to the ground;
2) functional criterionby virtue of which precarious is what is destined to satisfy a temporary need.

The jurisprudence is concluded in the sense that To identify the precarious nature of a work, the structural criterion must be followed but the functional criterionso a work may not even be permanently fixed to the ground. However, if it presents the characteristic of being created to meet non -temporary needs, it cannot benefit from the regime of precarious works (2). It is therefore a building title is requiredaccording to the sentence now recalled, for the realization of “(…) all those artifacts that, even if not necessarily fixed in the soil and even if they are simply adhering to this, Alterino the state of the places in a stable way, not irrelevant and not merely occasional(…) where they entail the execution of works to which the permanent transformation of the inevitable soil is achieved “.

Hence the conclusion that the precarious nature of an artifact cannot be deduced from the temporary nature of the destination subjectively given to the work by the manufacturer, but must be linked to theintrinsic material destination of it to a truly precarious and temporary use, for specific purposes, contingent and limited over time, since it is not sufficient that it is possibly a removable and/or not fixing to the ground (3).

In the same sense it was clarified that “The precariousness of the work, which exempt from the obligation to have the building permit, pursuant to art. 3, paragraph 1, letter e. 5, DPR n. 380 of 2001, in fact postulates a specific use and temporally delimited of the good And it does not admit that the same can be aimed at satisfying (not exceptional and contingent needs, but) permanent over time. In fact, they cannot be considered artifacts intended to meet merely temporary needs those intended for a persistent use over time, so that the alteration of the territory cannot be considered temporary, precarious or irrelevant“(4).

The jurisprudence of legitimacy

According to the jurisprudence of legitimacy (5), the precarious work, for its very nature and destination, does not involve permanent and definitive effects on the original structure of the territory such as to require the estimate of a qualification; The precarious intervention must necessarily have some specific characteristics:

• Its precariousness cannot be deduced from the temporary nature of the destination objectively given to the work by the user;
• I am the construction characteristics are irrelevant to the materials used and the easy removability;
• must have an intrinsic material destination to a really precarious use for specific purposes, contingent and limited over time;
• it must be intended for a solicit elimination to termination of use.

Notes

(1) TAR Lombardy, Milan, section IV, sent. June 28, 2024, n. 2010: “Art. 3, c. 1, lett. E.5) Qualification new construction “The installation of light artifacts, including prefabricated, and of structures of any kind, such as caravans, Campers, mobile homes, boats, which are used as homes, work environments, or as deposits, warehouses and the like, with the exception of those that are aimed at satisfying merely temporary needs or are included in outdoor accommodation facilities for the parking and the stay of tourists, previously authorized under the authorized. Urban planning, building and, where envisaged, landscape, in accordance with regional sector regulations “.
A container, two caravans and a swimming pool cannot be considered aimed at meeting temporary needs: these artifacts are intended for living use, even more so where the presence of water and electrical systems is found.
For constant jurisprudence, the precariousness of an artifact, whose realization does not require a building permit, not involving a transformation of the territory, does not depend on its easy removability, but on the temporaryity of the function, in relation to needs of a contingent nature (see, among many, Cons. State, section IV, 15 May 2009, n. 3029).
The precariousness must therefore be excluded when – as in the case in question – these are works intended to give prolonged utility over time.“
(2) Council of State, section V, sent. March 27, 2013, n. 1776.
(3) Tar Lazio, Rome, section The excerpt, n. 18266/2023.
(4) See Council of State, section VII, sent. 12 December 2022, n. 10847 and jurisprudence recalled there; Council of State, section VI, sent. November 17, 2023, n. 9865.
(5) Cass. Section III, n. 15455 of 13 April 2023.