The Council of State recently issued a ruling of great importance, rejecting the appeal presented by a catering company operating in Polignano a Mare. The dispute concerned a municipal regulation governing thetemporary occupation of public landwith particular reference to the historical and landscape areas of the territory.
According to the company, this regulation would have violated its acquired rights, limiting the use of existing state concessions on which it relied for its business.
The Council of State confirmed the legitimacy of the municipal regulation, underlining how it fully falls within the planning autonomy of the Municipality, aimed at protecting the decorum and urban landscape structure.
But what does this decision mean in concrete terms? What are the implications for other businesses operating in similar contexts?
Advertisement – Advertising
The context of the dispute
The dispute between the appellant company and the Municipality of Polignano a Mare originates from the new “Regulations for the temporary occupation of public land“. This regulation, adopted to guarantee a more orderly and uniform management of public spaces, was conceived to respond to the growing demand for outdoor structures, but also to respect the landscape and historical protection requirements of valuable urban areas.
The appellant company manages two restaurant businesses located in amaritime state areacharacterized by a historical and natural context of significant value, where the Municipality has established stricter rules for theinstallation of dehors and temporary structures.
In the municipal regulation, the territory has been divided into zones: particular restrictions apply to areas with high historical, environmental and architectural value (classified as “yellow zone”), while in other areas, with less landscape value, the authorization procedures are more slim.
According to the regulation, structures located in state-owned areas must undergo an ordinary landscape authorization procedure. This means that every outdoor area in these areas must comply with more restrictive aesthetic and structural criteriaas well as obtaining the necessary landscape authorizations from protection bodies, including the Superintendency.
In this context, the appellant company brought an appeal claiming that the municipal regulation violated the rights acquired through the concessions in its possession and that it imposed new restrictions that made it difficult, if not impossible, to use outdoor spaces for the administration of food and drinks.
The company therefore contested that the regulation, in practice, introduced changes not only to the methods of use of public land, but also to the very validity of existing state concessions, creating a sort of “implicit revocation” of the authorizations already granted. According to the appellant, this would have undermined its right of custody and compromised the possibility of operating in continuity with the already authorized structures, generating serious economic damage.
Advertisement – Advertising
The reasons for the appeal and the objections raised
In the appeal, the appellant company raised several critical points regarding the municipal regulation, contesting its legitimacy from various legal aspects. One of the first grounds of appeal was the alleged violation of the right to be heard. The company complained that the decision of the Regional Administrative Tribunal (TAR) was based on deeds and documents that had been filed shortly before the public hearing, preventing it from responding adequately.
Another issue raised concerns the obligation of collaboration and transparency between entities. The company claimed that the Municipality and the Superintendence had not respected the principle of correctness and good faith, failing to adequately involve interested parties in the decision-making process.
Specifically, the Superintendence, with a previous note, had expressed the opinion that state-owned areas were excluded from the simplified authorization regime, instead recommending the ordinary process for landscape authorizations.
The appellant argued that these requirements had not been respected and that their interpretation had not been officially clarified, creating uncertainty about the scope of the regulation.
A crucial point of the appeal was the alleged “excess of power” of the Municipality, which, according to the company, would have imposed changes to existing concessions without the necessary legal bases. The appellant declared that the regulation imposed a reorganization of the structures, forcing it to remove or modify the dehors already authorized, violating the principle of legitimate expectations, since the concessions in its possession were still valid and effective.
In summary, the company argued that the new rules could not be applied retroactively to existing structures, but only to newly installed ones.
Advertisement – Advertising
The decision of the Council of State
The Council of State, with sentence no. 8474 of 2024, has the company’s appeal was rejectedconsidering the objections raised to be unfounded. First of all, it established that the municipal regulation complied with the landscape requirements established by the Superintendence, confirming that the subdivision of the zones and the related types of permitted terraces adequately responded to the protection of urban and landscape decorum.
The court clarified that the regulation was not intended to cancel existing state concessions, but it only required an adaptation by a pre-established deadline, i.e. 31 December 2023.
Furthermore, the Council of State underlined that the regulation, as an urban planning act of a general nature, does not entail direct individual effects and, therefore, cannot be considered as an implicit revocation of existing concessions. On the contrary, the requested adaptation falls within the regulatory power of the Municipality, which has the right to establish general rules for the improvement of safety and liveability in the city.
The court highlighted how the regulatory intervention is aimed at standardizing and harmonizing the structures present in the municipal territory, with the aim of protecting spaces of historical and cultural value and ensuring compliance with the aesthetic lines desired by the local authority.
Finally, the decision reiterates that the regulation, far from requiring the removal of the structures, only requires adaptation to the new aesthetic and functional directives dictated by the Municipality. In this way, the balance between entrepreneurial freedom and the protection of collective values is safeguarded, allowing economic activities to operate in a context that enhances the urban and landscape heritage.
