Council of State, Section VI, 21 July 2021 no. 5496
In this judgment, the Supreme Court ruled on the applicability of the principle of prevention in the event that the provisions of a local building regulation provide for compliance with a minimum distance.
The case originated from the appeal filed by the owners of an agricultural property against the rejection by the Municipality of an application for assessment of urban conformity.
In particular, the Municipality argued that the works standing on the property were in contrast with the provisions of art. 4.2. of the Technical Implementation Rules, which requires to respect the minimum distance of five meters from the border. Therefore, the Municipality ordered their demolition.
The Court of First Instance rejected the appeal for the annulment of the above-mentioned measures, deeming the objections raised to be lacking in merit.
For the purposes of such decision, the Court of Palazzo Spada preliminarily noted the illegitimacy of the contested measures in the part where they considered that the Technical Implementation Rules, prescribing the minimum distance of five meters from the border, prohibited the application of the principle of prevention.
According to a systematic interpretation of the provisions of the Italian Civil Code (articles 871, 872, 873 of the Italian Civil Code), the aforementioned principle would allow the neighbour, who builds first, the right to build i) respecting a distance from the border equal to half of the one imposed by the Civil Code; ii) on the border; iii) at a distance from the border less than half of the one prescribed.
Consequently, invoking the authoritative orientation of the United Divisions of the Supreme Court (Supreme Court of Cassation, United Divisions 19 May 2016 no. 10318) the Court recognized the application of the principle of prevention also in the hypothesis in which public law sources are applied.
In fact, it is true that local regulations may prescribe a minimum distance of constructions from the boundary or expressly deny the right to build in support or in adherence, however, the Council of State pointed out that art. 4.2. of the Technical Implementation Rules does not introduce a mandatory rule of minimum distance admitting, on the contrary, that such rules are subject to be modified even by an act of autonomous negotiation.
In reforming the appealed sentence, the Court ordered the annulment of the measures challenged in the first instance, based on the principle by which the Technical Implementation Rules cannot be assigned a value such as to exclude the application of the general principle of prevention.