An example of stereotyped motivation
A concrete case in which the motivation was not considered sufficient was evaluated by the Council of State, sec. II, in the sentence. 5 June 2024, n. 5046; in the specific case, in particular, in the denial the Administration confirmed the existence of reasons preventing the assessment of the landscape compatibility of the intervention «for locations, dimensions, morphological, material and chromatic characteristics»therefore expressing a negative opinion «as the works are not landscape compatible with the context of insertion and do not comply with the provisions contained in the Landscape Plan of the Tuscany Region and that, in consideration of the significant impact the works carried out involve a substantial alteration of the landscape values constituting the raison d'être of the protection measure».
According to the judges of Palazzo Spada, a motivation that denies landscape compatibility with generic references to “locations, dimensions, morphological, material and chromatic characteristics» of the work must be considered stereotypedWhy could abstractly be suited to heterogeneous interventions, even different from the one examined; on the contrary, the Administration should have specified which of the concrete characteristics of the intervention (in the specific case, photovoltaic panels installed on part of the roof of the building) entailed a detriment to the protected landscape values.
The relevance of renewable energy sources
The sentence deserves to be highlighted also for another peculiar aspect, of extreme relevance, namely the landscape compatibility of plants that produce clean energy (remember that, in this specific case, the intervention concerned the installation of photovoltaic panels).
As observed in case law(3), «the production of clean energy is encouraged by law in view of the pursuit of pre-eminent public purposes related to the defense of the environment and the eco-system», with the consequence chand the reasons for a denial of landscape authorization for the construction of an energy production plant from renewable sources «must be particularly stringentfor this purpose it cannot be considered sufficient that the authority responsible for protecting the landscape constraint notes a generic lower usability of the landscape in terms of decreasing its aesthetic dimension» (also because, if the judgment of landscape compatibility were limited to detecting the impact in the context, «each new work, as a body foreign to the pre-existing landscape framework, would in itself not be authorised») and it is therefore necessary «a more severe one comparison between the different interests involved in the issuing of qualifications – including the landscape one – to the construction (or, as in the present case, the maintenance, since it is an amnesty procedure) of an electricity system from a renewable source (in this case from a solar source)“, also remembering that “the production of electricity from solar sources is itself an activity that contributes, albeit indirectly, to the protection of landscape values».
This orientation, according to the judges of Palazzo Spada, deserves to be confirmed also in light of the fact that, as recalled on several occasions by the Constitutional Court, the protection of the rights and values recognized and guaranteed by the Constitution must be “systemic and not fragmented”, preventing one of them from becoming a “tyrant” towards the others(4), especially when, as in this case, we are dealing with goods – the environment and the landscape – both having the same rank of fundamental principles, pursuant to of the art. 9 of the Constitution as integrated by constitutional law n. 1 of 2022, a finding from which it follows that the Superintendence, in pursuing the mission attributed to it by law, cannot express an “all-encompassing” position that entirely sacrifices the environmental interest that cannot be deferred to the ecological transition (5).
Another case of insufficient motivation
A concrete case of lack of adequate motivation also occurred in sent. 20 April 2023, n. 214, of the TAR Abruzzo, L'Aquilain which the object of the judgment was the refusal, in the face of the planned installation of photovoltaic panels on the roof of a building, motivated by the Superintendence in the following terms: “it is believed not compatible with the traditional image in brick tiles. Due to the particular location of the building and the orientation of the aquifer involved, in fact, the intervention would be significantly perceptible as well as landscape-relevant in consideration of the values of the rural landscape and the natural landscape represented above”.
According to the judges, the opinion was illegitimate for two reasons, given that the Superintendence:
- it had limited itself to inferring, automatically and apodictically, the alteration of the landscape balance of the territorial context of reference from the mere circumstance of the planned installation of photovoltaic panels, without taking care of the due balance between landscape protection and sustainability needs energy;
- rather than suggesting the feasibility of alternative solutions to the positioning of photovoltaic panels on the roof pitch which do not interfere with the panoramic views, he expressed a assessment radically hindering the implementation of the project intervention, considering the installation of photovoltaic panels absolutely precluded and effectively inviting interested parties to opt for technologies and methods of exploitation of renewable energy sources other than solar energy which may have less impact on the landscape.
He seems absentin the motivation, a concrete evaluation of the landscape compatibility of the intervention, since the stated non-compliance of the photovoltaic panels with landscape protection seems to be found mainly in the chromatic aspect and in the “traditionality” of the roofs used in the area, so that the introduction of “technological” elements (such as photovoltaic systems) would inevitably and, in any case, be precluded. For the effect, what is prescribed is not the use of a color or shape more suited to the context, but of don't use the panels at allthus reaching a conclusion based on apodictic and general assumptions, divorced from a concrete evaluation referring to the specific landscape context(6).
Among other things, in this specific case, the owners had identified a solution that sought to reconcile the general interest in landscape protection with the equally general interest in developing the use of renewable energy sources, through theadoption of specific precautions aimed at minimizing the impact of the installation what this is about: positioning parallel to the roof pitch; the use of colors of the materials used is identical, or in any case compatible, with that of the structure of the pitch itself; the non-reflective characteristic of the same to camouflage the system as much as possible, thus reducing its impact on the structure to a minimum and harmonizing with it precisely with a view to respecting the surrounding area.
Note
(1) Council of State, sec. II, sentence. 21 November 2023, n. 9981.
(2) Council of State, sec. II, sentence. 15 December 2023, n. 10877.
(3) Council of State, sec. VI, sentence. 23 March 2016, n. 1201.
(4) Sent. n. 264/2012, n. 85/2013, n. 10/2015, n. 58/2018, n. 2, no. 27 and n. 54/2022.
(5) In these terms see also Council of State, sec. VI, sentence. 23 September 2022, n. 8167.
(6) TAR Lombardy, Brescia, sec. I, heard. March 29, 2021, n. 296.
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