The Balancing of Interest Between Landscape Protection and the Promotion of Public Interest Activities

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COUNCIL OF STATE, SECTION IV, 12 APRIL 2021, NO. 2983

The judgement in question provides an interesting opportunity to reflect on the meaning of overriding interest and, specifically, on the possibility – or not – of qualifying as such the underlying interest to the protection of the landscape with respect to other possibly conflicting interests (for example, the interest in the production of electricity).

The sentence is based on a legal issue, originally brought before the Regional Administrative Court of Lazio by the Ministry of Cultural Heritage and Activities (hereinafter “the Ministry”) for the annulment of a single regional authorization issued pursuant to article 27-bis of Legislative Decree no. 152/2006 (the so-called Environmental Code), for the construction of a photovoltaic plant on a site where there were no specific archaeological or landscape restrictions.

During the consultation with local authorities (“conferenza di servizi”), all the Authorities involved expressed their approval, except for the competent Superintendence which, on the contrary, provided a qualified opinion of environmental incompatibility with regard to the realization of the above-mentioned plant, identifying – under the programmatic, environmental and design perspective – several critical issues in the proposed intervention.

Before the Regional Administrative Court, the Ministry complained, among other issues, that the above-mentioned project would lead to “a real break, discontinuity, interruption and modification of the structural characteristics of agricultural land, which to date has been totally intact and uncontaminated“, in utter disregard of the specific agricultural context and the wider objectives of landscape protection.

In addition, according to the Ministry, the Region, in balancing the conflicting interests, had unlawfully given priority to the economic interest over the landscape, which, in the light of the well-established interpretation of case law, should be included in the broad concept of environment laid down in article 9 of the Italian Constitution.

In the logical-argumentative path followed by the Judge of first instance for the purposes of assessing the prevailing positions and the comparison between the various interests was crucial:

(i) the absence – which is not contested – of specific preservation measures for the area concerned by the project, which made the contrary opinion of the Ministry “intrinsically” not an obstacle to the project;

(ii) the reference in the single authorisation to the specific guidelines of the Ministry for Economic Development, which had stated, for the Region concerned by the project, the binding objective of satisfying the energy requirements, by 2020, with a specifically indicated percentage of energy deriving from renewable sources.

Based on the above-mentioned considerations, the Lazio Regional Administrative Court rejected the appeal and concluded that the public interest underlying the project’s implementation was predominant.

The Ministry appealed against the first instance judge’s decision complaining, inter alia, about the part of the judgement in which the Regional Administrative Court ruled that the assessment of the overriding public interest in the construction of the photovoltaic plant was supported by sufficient reasoning.

In rejecting the appeal, the Council of State found that the positive final decision and, therefore, the issuance of the single authorisation was fully admissible in this case, given the Ministry’s failure to indicate objectively appreciable indicators on the basis of which the Region’s decision could be assessed as unreasonable or illogical.

In the present case, the final decision was in fact the result of a broad assessment of the interests involved and, in particular, of the balance between the protection of the territory and the favour given to the construction of RES plants by the national and European Union legislation.

In conclusion, the Supreme Council of Administrative Justice has set out important principles which, in line with the National Energy and Climate Plan, may give a significant stimulus to the construction of plants for the production of energy from renewable sources, stating that for such projects the balancing of interests must be carried out bearing in mind that “the production of electricity from renewable sources is in fact an activity of public interest which also contributes not only to the protection of environmental interests but, albeit indirectly, also to that of the landscape values”.

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