Tar Puglia, sentence n. 1204, dated 6th August 2015

The Administrative Regional Tribunal (TAR) of Puglia has recently ruled that with reference to the Single Authorization (Autorizzazione Unica) for renewable energy installations the EIA (Environmental Impact Assessment) does not include the landscape authorisation. Such authorisation remains an autonomous act for the protection of cultural heritage.

Here is a summary of the most salient points of the judgment which partially upheld an appeal by a wind energy production company against the refusal of the Single Authorisation from the Region.

  1. The plaintiff raised the violation of Article 26 para 4 of the Law 152/2006 by means of which the EIA (VIA) absorbs any other administrative authorization.  The TAR considered the plea unfounded, as the EIA / VIA concerns only the environmental aspects and not the landscape aspects that have different nature. Therefore, it needs to be legislatively implemented a form of coordination between the procedures of environmental licensing and the landscape, so that the two processes can be carried out jointly.
  2. The plaintiff also complained that the opinion of the Service Land Use Authority had been issued when the steering committee (Conferenza dei Servizi) designed for this purpose had already concluded its work. The Tribunal has however ruled that the works of the steering committee could not be considered concluded, as the committee itself had asked for the integration of the documentation provided by the applicant. In addition, the delay of the publich authority in expressing its opinion does not determine the loss of its power, since the applicant can trigger the appropriate action against the implied default of the publich authority.
  3. The Administrative Tribunal upheld the plea of the plaintiff, who complained about the inconsistency and unreasonableness of the choice of energy service to deny the Single Authorization, closing the steering committee, on the sole ground that the Service Land Use Authority had given a negative opinion, outside the steering committee and in any case before its conclusion. The assessment of the opinions of a public authority, in fact, must always be performed in the commitee and following discussion and shared opinions, possibly also using the so called “Dissenting Opinion” under Article 14ter of the law n. 241/1990. The public authority, therefore, would have to deepen the provisions issued outside the committee and renew the invitation to Service Land Use Authority to attend the committee.
  4. The TAR has not even accepted the plea of lack of referral of the decision to the Council of Ministers, because of the veto of the Service Land Use Authority. The Council of Ministers becomes competent, instead of the steering committee, only when the public administration intends to insist in dissenting. Only the contrast between the public authority directly responsible for the preservation of a significant interest and the authority in charge of the decision, delegitimize the steering committee and makes responsible directly the Council of Ministers.
  5. The TAR has also shared the reason about the incompetence of the Service Land Use Authority to attend the steering committee. At the steering committee attended by all the public authorities which are severally competent to issue the individual acts. Authorities belonging to the same organization and representing the same public interest assigned to its care are therefore precluded from participating in the steering committee.
  6. Finally, the Administrative Tribunal stated that the opinion rendered by the Service Land Use Authority contains assessments exorbitant the powers of such administration. In fact, at the time of issue of the landscape opinion, the opinion on the landscape compatibility shall concern only the plant to be built and the area object of scenic transformation after the works, unless specific provisions authorize the exercise of other powers to protect the landscape, in a broader sense with respect to the legislation on the management of individual constraints on the landscape.