“Reclamation should have the result of restoring the usability of a property having regard to its use at the time when the reclamation work must be authorised and not to the characteristics of the site at the time of pollution. Such approach safeguards the dynamic condition of land and is the direct consequence of the nature as a ‘permanent tort’ of the conduct of the person responsible for pollution”.
In the context of a reclamation procedure, account must be taken of the planning use in existence at the time of approving the reclamation work.
After a long-standing and complex arm wrestling between those responsible for pollution and public authorities, in a proceeding that has been going on for many years and has not yet ended, the Consiglio di Stato, in a concise but appropriately reasoned judgment, provides a point of clarity and certainty for many future works.
The factual situation at issue is common in many urban areas in which productive activities have fallen into disuse and value enhancement processes have been initiated. In the case to which the judgment at issue relates, the situation is further aggravated by the circumstance that value enhancement was implemented in a disorganised manner, without following a unitary scheme and, especially, without appropriately supervising the performance of the obligations involved in the reclamation work.
The area at issue was parcelled out and, as often happened in some years, certain third-party purchasers, after announcing the development of warehouses (for production use) ended up building lofts, which they then sold unlawfully for residential use. After a change in management, the authorities on the one hand resumed the reclamation procedure that had already started in certain areas of the site not yet sold to third parties and, on the other hand, found out about the residential use of the premises developed in certain plots of land not yet reclaimed but sold, and which were supposedly to be used as warehouses.
We will not delve into the merits of the “loft case”, which would require specific in-depth analysis. What is relevant for the purposes of commenting on the judgment is the evident fact that a large site used for productive purposes has changed over time as a result of the development of housing, schools and service facilities, which are typical signs of an urban city context. Such change of the site has also been reflected in the general land use planning instruments that have been renewed and approved in the meantime and have involved a definitive change to the planning use of the site.
In light of such changes, the authorities deemed it appropriate to impose reclamation targets in accordance with the new planning uses, which would allow starting the procedures to remedy building violations and, especially, satisfying the need to protect the health of those using and living in nearby areas.
The Regional Administrative Court of Lombardia first, and then the Consiglio di Stato, confirmed the legitimacy of such choice. In the appeal judgment it is indeed stated that reclamation “should have the result of restoring the usability of a property having regard to its use at the time when the reclamation work must be authorised and not to the characteristics of the site at the time of pollution”.
The objective is, therefore, that of reverting a property to its true use, bearing in mind the changes that have in the meantime occurred in land use and conditions, including in the surroundings of polluted sites. Consequently, the (permanent) obligation to carry out land reclamation that is incumbent on the person responsible for pollution reflects and safeguards “the dynamic condition of land”. As properly recognised by the Regional Administrative Court of Lombardia (Fourth Division, judgment No. 1116 of 29 April 2014) in first instance, reclamation has indeed as its primary purpose the protection of the right to health of the people living nearby.
The above ruling has a number of operational implications.
Postponing reclamation works not only damages land, but also those responsible for taking action, involving more stringent (and, therefore, more time- and cost-expensive) action on their part as well as an increased level of liability in cases where the passing of time causes contamination to extend to other resources (e.g. in case of groundwater), which could likely be avoided by prompt action.
Any failure by authorities to control cannot be a reason for reducing the level of protection required by law. There are tools available to complain about delays and infringements as well as about any collusion by public players in respect of omissions or even unlawful acts. On the other hand, it is always dangerous for a private person to let everything happen with the prospect of receiving advantages. The judgment of the Consiglio di Stato is clear on this, saying that any timely (or untimely) punishment of illegal conduct on the part of Municipal authorities shall not affect the legitimacy of any deeds issued at a later stage on lawful grounds. As stated by the Regional Administrative Court in first instance, no (or untimely) action against illegal development may, at the most, involve compensation, provided however that the private person who is supposed to do reclamation work promptly makes a complaint and derives no advantage from that.