An apparently simple story turned on the spotlight on an often underestimated theme: the installation of small artifacts such as gazebo or pergolas within private spaces. Everything starts from an assessment of the Municipality, which disputes to a town the construction of some building works – including a gazebo – in an external area in front of its home.

According to the direct concerned, it is a modest, removable, and therefore exempt from authorizations. But the Municipality disagrees, and the case ends up in front of the Sicily TAR.

The court was called to decide whether that installation falls within the“Free building” or if requires a real Building permitwith all the implications of the case, including sanctions.

When is a work really “light” and removable? And how far can we change our courts or gardens without asking permissions?

Let’s find out what administrative justice has established.

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A “historic” gazebo and a disappeared cadastral particle

The controversy was born from an administrative sanction issued by the Municipality following an inspection carried out by the municipal police. The object of the dispute is an area in front area in front of a house, on which various works were present: one Perimeter fence with walls and Orsogrill networka Carbile gate supported by reinforced concrete pillarsone Cement beaten flooringa flowerbed with a lemon tree and – above all – a gazebo equipped with plastic sheetconsidered by the owner a light and removable element.

In the appeal, it is argued that this Court was historically annexed to the property and turns out to be already fenced for decadesas a sedime area of ​​an old building collapsed in the 1908 earthquake. It is also stated that the works carried out did not change the state of the places in a significant way, and that the intervention should be qualified as “Free building” Pursuant to Presidential Decree 380/2001, or at the maximum subject to communication of the start -up start -up (Cila).

Another key point raised by the defense was the error of identifying the cadastral particle: the provision contested the works in reference to a particle now suppressedand owned – according to the defense – of the Municipality itself. The technical advice filed in court stressed that the indicated particle had dimensions not compatible with the contested effective area (about a hectare against the 100 real square meters), aggravating the uncertainty of the provision.

Despite this, the TAR deemed not decisive This formal error. The reason? The works had however been described punctually From the Municipality and the recipient of the provision he had understood clearly What it was, as shown by the content of the appeal itself.

In other words, according to the court, the dispute was substantially valid, even if inaccurate in the cadastral references.

In addition, the judges recalled that, in construction, sanctions are real nature: apply not only to the ownerbut also to anyone has performed the illegal workregardless of the ownership of the land. Therefore, the fact that the applicant was not formally holder of the contested particle did not raise him from responsibility.

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Gazebo, gates and cement: free construction or new construction?

One of the central arguments of the appeal concerned the nature of the intervention: according to the applicant, they were modest and removable works, falling within the so -called free constructionthat is, those realizations that do not require permission to build neither other qualifications, pursuant to art. 6 of Presidential Decree 380/2001.

In particular, both the national rules and the most recent transposition by the Sicilian Region were referred to with the LR 27/2024that to art. 15 has expanded the list of interventions considered executable in free construction.

Among these, the Protective structures from atmospheric agentslike light and removable gazeboif annexed to properties and without elements of permanent stability.

But the Tar did not welcome this vision. According to the college, it is wrong to isolate a single element – like the gazebo – from the overall context. The works performed were to be evaluated as a wholesince it is a unitary intervention that included walls, gates with concrete pillars, flooring and other non -removable elements.

It was therefore not a simple “shady sheet” or an accessory light structure, but of a real intervention of new constructionwith urban impact.

In addition, the judges recalled the prevalent jurisprudence on the issue of “Pergotende” and gazebociting recent judgments of the Council of State, according to which to be considered free, these works must be:

  • Read and did not fix the soil permanently
  • Accessories to a retractable curtainand not autonomous structural elements
  • Free of volumes that can alter the shape and prospectus of the main building

In the case examined, the characteristics of the structure did not respect these criteria. Consequently, for the TAR, the release of a Building permitand the work was in the absence of a qualification, configuring a building abuse in all respects.

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No partial amnesty, the restoration or regularization of the entire intervention is needed

With sentence no. 289/2025 The Regional Administrative Court for Sicily rejected the appeal presented against the Municipality, confirming the legitimacy of the building sanction imposed on the construction of an unauthorized intervention on an private short area.

The judges clarified that the work – made up of masonry fences, metal network, concrete pillars, gates, cement -beaten flooring and a gazebo with plastic sheet – could not be divided and evaluated piece by piece.

Being a unitary interventionthe current legislation (art. 36 of Presidential Decree 380/2001) requires that any amnesty is requested for the entire complex of works.

According to the TAR, It is not possible to distinguish between “free” elements and “illegally made” worksif these are functionally connected. In the absence of valid building permit, therefore, the subject concerned has only two possibilities: submitting an amnesty for the intervention as a whole, or proceeding with the demolition and restoration of the state of the places.

The sentence also confirms a significant principle: The sanction can be applied not only to the owner of the soil, but also to those who have materially performed the abuseregardless of formal cadastral data. Any errors in the indicated particle do not cancel the measure, if the interested party has clearly understood which works are the subject of the dispute.