Nature of the observations to the PRG and consequences on the motivation of the rejection
As highlighted by Council of State, section IV, in the sent. March 24, 2025, n. 2413the observations presented on the occasion of the adoption of a new territory planning tool constitute a mere Private contribution in the process of training of the instrument itself, not giving rise to particular expectations (1), resulting absence for the administration competent of a punctual obligation of motivationin addition to that evincible by the criteria deduced from the illustrative report of the plan itself, regarding their choices discretionary assumed for the destination of the individual areas; Therefore, although the administration is required to examine The observations received, however, cannot be obliged to an analytical refutation of each of them (2).
Similarly, the TAR Lombardy, Milan, Section IV, in the sent. March 31, 2025, n. 1101he reiterated that “the nature of mere contribution of private individuals in the process of formation of the instrument itself, with consequent absence of the administration to this competent one of a punctual obligation of motivation in addition to that evident by the criteria derived from the illustrative report of the plan itself regarding its discretionary choices taken for the destination of the individual areas; therefore, even if the administration is required to examine the observations received, obliged to an analytical refutation of each of them, being The mere contrast with the inspiring principles of the plan is sufficient for their rejection“(3).
The only apparent motivation of the refusal
However, according to what was stated by the Council of State in the reported sentence, The Administration cannot ignore the examination of the observations received nor can it adduct as a valid reason for rejecting the observations, the mere consideration according to which the approval of the observations would have led to a lengthening of the times of entry into force of the new PUC or that in any case the observations presented could have found recognition in the urban variant; All the more reason this applies when the municipal offices had expressed themselves favorably in the preliminary investigation on some of the observations.
Consequentially, The motivation behind the refusal of observations must be considered contradictory and apparent – and not actually congruous as it should (4) – the procedural participation of the private individual, on the basis of elements (delays in the approval of the new municipal urban instrumentation) who exist from the availability of the private individual and which are exclusively attributable to the proceeding administration.
The merger of the observations for the purpose of evaluation
The Milanese judges further specified that The municipal administration is allowed to proceeddiscretionally, to their merger for homogeneous groups(5), especially where you are in the presence of a significant number of observations and the same are extremely parcelized, in order to facilitate the work of the offices and of rationalize the approval process of the planning toolalso in order to avoid disparity of treatment between homogeneous situations (6); However, There may be no merger in a single block(7), both because each point can well lend themselves to different assessments by the individual councilors, even if members of the same board majority, both to allow the directors who possibly pay in conflict of interest to refrain on the choices in which a conflicting situation is presented, instead voting for those where there is no reason for abstention.
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Notes
(1) Tar Veneto, section II, sent. 4 September 2023, n. 1241; Tar Lombardia, Brescia, section II, sent. February 27, 2023, n. 174.
(2) Council of State, section II, sent. April 5, 2024, n. 3153; Section IV, sent. 20 July 2023, n. 7131; sent. January 2, 2023, n. 21.
(3) TAR LOMBARDIA, MILAN, SEZ. IV, sent. November 20, 2024, n. 3263; sent. February 22, 2024, n. 492; sent. February 19, 2024, n. 423; Council of State, section IV, sent. 12 September 2023, n. 8275; sent. June 5, 2023, n. 5464.
(4) Council of State, section IV, sent. May 2, 2024, n. 3988. By way of example, we remind you that the Council of State, section IV, in the sent. March 21, 2024, n. 2742, considered the motivation according to which:
– “observation does not concern a variant of the adopted PGT“;
– “The area falls into the agricultural area of landscape-environmental interest and would constitute an expansion of the urbanized sphere“;
– “The area is a wooded area belonging to an ecological corridor in the forecast of the PTCP. The important environmental value that it covers in the municipal area and the lack of urbanizations lead to confirm the choice made“.
(5) In this sense, cf. TAR Lombardy, Milan, Section IV, sent. 13 December 2023, n. 3029.
(6) TAR Lombardy, Milan, section IV, sent. February 19, 2024, n. 428; sent. 13 December 2023, n. 3029; Section II, sent. January 25, 2022, n. 165; sent. 23 July 2021, n. 1816; sent. August 20, 2019, n. 1897; Council of State, section IV, sent. March 22, 2021, n. 2417.
(7) TAR Lombardy, Milan, section II, sent. September 18, 2007, n. 5813.
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