Immissions and agricultural fund

In the area of neighborliness and the consequent necessary balancing of mutual rights, tensions are not infrequently encountered between neighbors, whether between private individuals or between private individuals and the public administration, regarding disturbances or alleged violations of the tolerability limits of immissions from the property of others.

On this point, Article 844 of the Civil Code textually provides that “the owner of a property may not prevent the immissions of smoke or heat, exhalations, noises, shaking and similar propagations arising from the neighbor’s property, if they do not exceed the normal tolerability, also taking into account the conditions of the places,” also specifying that “In applying this rule, the judicial authority must balance the needs of production with the reasons of property. It may take into account the priority of a particular use.”

With reference to noise immissions, in order to verify in a general way whether the limit of normal tolerability of such immissions is exceeded, the comparison of the average level of background noise with the level of noise detected at the place affected by the immissions should be used as a general criterion. Following this approach, the level will be considered exceeded for those immissions that are three decibels higher than the background sound level (see Trib. Rome, Feb. 16, 2011, No. 3210).

In applying the principle of balancing production needs and property reasons, therefore, the actual and objective impact that the complained of excessive immissions have on the fund will have to be verified in concrete terms (see Cass. civ., Sec. II, Nov. 9, 2012 No. 19520).

Based on this orientation, in fact, the Supreme Court has recently had occasion to further emphasize that the protection provided by Article 844 of the Civil Code. is also valid for rustic funds, without it mattering, for the purpose of the appreciation of the tolerability of noise immissions, how the property is stacked: even a rural building can be used for residential use of those who cultivate the fund and, in any case, even if it were intended exclusively for agricultural work, the need – inescapable – for the protection of the people who on the said fund carry out the aforementioned activities would not be undermined (cf. Cass. civ, Sec. II, Aug. 8, 2016, No. 16074).

With this pronouncement, it was reiterated that, in cases in which the objections of exceeding tolerable levels had as their source the noise immissions generated by the circulation of vehicles on major road infrastructures and if it was also ascertained that the thresholds provided by the sector regulations for the respect bands of road infrastructures (D.P.R. No. 142/2004, as amended), the above would not constitute a sufficient element for the immissions to be considered unquestionably lawful, not being valid – in fact – to preclude any further assessment of tolerability under Article 844 of the Civil Code.

Therefore, it seems to be safe to say that in the light of a constitutionally oriented interpretation, the satisfaction of the interest in a normal quality of life should be deemed to prevail over the needs of production (see Cass. No. 16074/2016, Cass. No. 8474/2015, Cass. No. 939/2011, Cass. No. 1418/2006).

Having made this premise and to complement the above, a concrete example may better clarify the impact that the examination of each individual case has on the proper application of the protective legislation.

In the case chosen, a fruit and vegetable company had appealed to the Supreme Court against the order on the grounds that-according to it-the intolerable nature of the inputs had been proven, and the fruit and vegetable company’s application had been rejected because it had failed to prove that it could not carry out its poinsettia cultivation elsewhere.

The fruit and vegetable company had, in fact, sued the property of the neighboring property on which stood a Sports Club equipped with outdoor tennis courts that were artificially lit even during the evening period, complaining that the excessive prolonged lighting (far greater than the natural lighting, which should have faded to almost absent after dusk) had created serious damage to the poinsettia crops carried out in the nearby greenhouses.

The Judgment no. 19520/2012 of the Supreme Court held that light immissions from the nearby tennis courts of the club were lawful and, therefore, not detrimental to the property right of the fruit and vegetable company, taking into account precisely the nature, the concrete manner in which the production activity was carried out and the size of the building in which it was carried out.

In fact, the Company could have concretely moved the cultivation of poinsettias-which, moreover, is seasonal and carried out for only a few months of the year-to another part of the shed, taking full advantage of its facility and without appreciable limitations on cultivation.

For this reason, artificial light from tennis courts was not deemed intolerable under the rule protecting the property rights of others.

A different interpretation, moreover, would have been in conflict with the principles of solidarity and equity with respect to the social function of the Sports Club, which would have seen, if the Company’s application were granted and without prejudice to the concrete possibility of alternative management of cultivation, intrinsically and illegitimately limited the right of the members to the full use of the sports facility, with unjustified sacrifice to them. (see Cass. civ. sec. II, 09-11-2012, no. 19520).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo