In a recent judgment, the Italian Council of State (i.e. Consiglio di Stato) has specified that refusal of landscape construction permit (even partial) must be based on reasonable and rigorous grounds, especially when it is issued in relation to construction of plants producing energy from renewable sources. That means that it is not sufficient to ground a refusal of landscape construction permit on a generic decrease of the aesthetic dimension of landscape (Council of State, Sec. VI, 23 March 2016, n. 1201).
The Council of State has affirmed this principle of law on the assumption that, pursuant to Legislative Decree 29 December 2003, no. 387, plants producing energy from renewable sources are to be classified as public utility works. Production of clean energy is subsidized exactly in view of the paramount goals to protect the environment and ecosystem. What is more, to make it easier to achieve such goals through the construction of renewable plants, article 12 of the above cited Legislative Decree 29 December 2003, no. 387, has introduced a simplified single procedure for issuing authorizations necessary for the implementation of infrastructures instrumental to the production of energy from renewable sources.
That given, and considering that in general any new work produces some effect on the landscape, it follows that the judgment of compatibility, that the authority in charge to perform it must perform, cannot be reduced to the examination of the mere impact the new construction produces on the aesthetic dimension of landscape, nor it can be limited
Given the above, and considering that in general any new work produces some effect on the landscape, it follows that the judgment of compatibility, that the responsible authorities are called to perform, cannot be restricted to detecting the objectivity of novum on the existing landscape nor can it be reduced to the examination of ordinary opposition public interest / private interest which generally connotes the theme of landscape compatibility in ordinary construction projects. The landscape permit for the construction of a renewable source energy production plant should rather be an expression of an analytical examination of the complexity of the interests involved. Under the provisions mentioned above in fact, the production of energy from renewable sources is itself an activity that contributes, albeit indirectly, to the preservation of landscape values.
In line with the reasons given by the Consiglio di Stato in the decision at hand, can therefore be concluded that the administration responsible for the protection of the landscape, including through the simultaneous display of technical features on allocative mode of plants for the production of energy in the landscape, must try to promote the solution that allows the implementation of the intervention with the least scenic interest sacrifice in its aesthetic declination. If the landscape interest appears prevalent, the responsible authority shall provide a compelling motivation to support the refusal to allow the construction of plants producing energy from renewable sources.