As is known, in exercising its functions and, even more so, in taking authoritative orders, the Public Administration is subject to strict obligations to state reasons, infringement of which allows a private person to have recourse to administrative courts for cancellation of the unlawful measure.
Such fundamental principle of the Italian legal system has been recently confirmed by the Regional Administrative Court of Tuscany, by judgment No. 289 of 23 February 2017.
In the case submitted, the Administrative Court, applying the aforesaid principle, ordered cancellation of the orders whereby the Municipality of Livorno had designated for expropriation a number of private areas in the port of Livorno used by a private concession holder for handling and storage of solid bulk and forestry goods in accordance with applicable planning provisions.
In particular, under the Court’s reasoning, there are two sets of reasons that justify the cancellation of orders of the Public Administration, namely, on the one hand, the absence of an accurate description of the public works for which an expropriation procedure is ordered and, on the other hand, the current compatibility of the business of the private person concerned with the use of the port area as foreseen by the Municipality in agreement with the Port Authority.
That being said, the key point of the above judgment is not so much (and only) the fact of having imposed precise obligations to state reasons upon the Public Administration, but the fact of having assessed and benchmarked such obligations (also) in light of the actual activity carried out by the private person in the expropriated area.
In the view of the Court of Tuscany, the objective compatibility of private property and of a current business with the designated use set out in port and planning regulations as a matter of fact imposes on public authorities a more burdensome obligation to state reasons for expropriation purposes.
In other words, “the compatibility of the private entrepreneurial activity with the functional use of the area” that characterises the area designated for expropriation under planning regulations, involves the Port Authority having to duly justify the reasons (including from a practical standpoint such as in terms of localising any public works or public utility works pursuant to Articles 1, 10 and 11 of Presidential Decree No. 327/2001) why the public interest underlying the expropriation procedure can only be achieved by turning a private area into a State-owned one.
In the absence of a comprehensive statement regarding the actual existence of public interest, any restriction of a private person’s right is therefore unlawful. Indeed, subject to compliance with the principles of reasonableness and affordability, the elements, albeit minimal (such as urbanisation layout, identified as a precondition for expropriation) must be present that allow sufficient understanding of the preconditions for the proper exercise of the technical discretionary power of the Public Administration in designating certain land for expropriation.