With sentence no. 7439/2024, the Council of State has redefined the limits of liability of property owners in the event of waste abandoned by third parties in their properties. The case involved an industrial warehouse, leased, where approximately 600 tons of waste illegally deposited.
The Municipality had issued an order to force the owner, together with the tenant, to remove the waste and restore the environment, citing an alleged joint liability for lack of supervision.
The Council of State, however, overturned the first instance judgment, establishing that the owner’s liability cannot be presumed simply by virtue of owning the property. Instead, it must be proven by demonstrating elements of intent or negligence.
This decision raises very important questions: how can owners protect themselves from similar situations? What are the real boundaries of their responsibilities?
Advertisement – Advertising
The legal framework of reference
The heart of the controversy is based on the application of article 192 of Legislative Decree no. 152/2006, known as Consolidated Environmental Law. This law prohibits the abandonment and uncontrolled storage of waste and provides that anyone who violates these prohibitions is obliged to remove the waste and restore the condition of the places.
However, paragraph 3 of the same provision specifies that this obligation can be extended to the owner of the area only if the offense is attributable to him through willful misconduct or negligence.
This principle is intertwined with the more general community principle of “the polluter pays”, enshrined in Article 191 of the Treaty on the Functioning of the European Union (TFEU).
The law requires that the costs related to environmental restoration be borne exclusively by those directly responsible for the damage, avoiding attributing responsibility automatically or simply by owning a specific asset.
Advertisement – Advertising
The details of the concrete case
The case originated in 2018, when authorities discovered around 600 tonnes of waste illegally deposited inside a industrial warehouse located in a peripheral area. The property, owned by a private company, had been regularly leased to a third-party company, which had full availability.
Following the discovery, the local authorities initiated an administrative procedure which culminated in the issuing of a municipal ordinance, requiring both the tenant and the owner to remove the waste, dispose of it and restore the area.
The Municipality’s reasoning was based on an extensive interpretation of article 192 of the Consolidated Environmental Law, according to which the owner of the property is obliged to guarantee the supervision and correct use of his assets by the tenant. This argument, according to the municipal administration, was justified by the seriousness of the environmental damage, the continuity of the offense and the apparent inertia of the landlord.
The owner company, however, rejected the accusations, claiming that it had no contractual obligation supervision of the activities carried out by the tenant and that she was not involved in any way in the management of the warehouse. After an initial rejection of the appeal by the TAR, the matter was submitted to the Council of State.
Here, the judges accepted the owner’s appeal, recognizing that the mere quality of lessor does not automatically imply co-responsibility for the actions carried out by the tenant, in the absence of demonstrated fault or willful misconduct on the part of the owner.
Advertisement – Advertising
The reasons for the sentence
The Council of State, overturning the first instance ruling, clarified that the owner’s liability for the illicit storage of waste cannot be automatic or derive simply from ownership of the property. The judges underlined that article 192, paragraph 3, of Legislative Decree no. 152/2006, requires the demonstration of malicious or negligent behavior on the part of the owner in order to be held jointly responsible.
In this specific case, the investigations conducted had already identified those materially responsible for the illicit storage, excluding any active involvement or significant negligence of the landlord.
The ruling also highlighted that the supervisory and custodial obligations attributed to the landlord are limited to the state of conservation of the property and systems, without extending to the control of the activities carried out by the tenant. To believe otherwise, the judges explained, would mean imposing a sort of “objective liability” on the owner, in contrast with the community principle of “the polluter pays”.
Furthermore, the Council of State cited consolidated jurisprudence according to which the liability of the owner in similar cases can only exist in the presence of concrete elements demonstrating a culpable omission or negligent behavior, such as the failure to fence the area or the absence of checks in situations of obvious risk.
