Public land occupation between discretion and balancing interests: two recent sentences

Provision authorization for public land employment: discretionary nature

So much the Council of State, section V, in the sent. January 7, 2025, n. 87as much as the Tar Lazio, Rome, section The excerpt, in the sent. January 2, 2025, n. 56they reiterated that the public land employment authorization provision has discretionary nature(1), given that the granting body must take a balance of the interests involved.

The pursuit of a pre -eminent public interest

In particular, as highlighted by the Council of State in the aforementioned sentence, the subtraction of the public good to collective use (like one street) in favor of private use, through the provision for granting the property, must be justified by the pursuit of a pre -eminent public interest For the entity and in any case it must not conflict with other interests worthy of protection.

The administration is required to verify that the concession takes place in pursuing a pre -eminent public interest and that it does not resolve in the injury of other public interests, beyond the comparison between the public interest pursued and the private one; it follows that It is legitimate to deny the provision of employment of public land If its release compromises the public interest to the livability of citizens or to road traffic.

In the specific case addressed by the Council of State, it was faced with a request for employment of public land which, where granted, would have determined a distance of 2.90 meters between the occupation of the public space with tables and chairs required for the activity of catering and windows of a condominium placed on the ground floor, which highlighted the evident disturbance of the residential environment of the condominiums and therefore of the livability of the houses. Furthermore, the granting of the use of the denied area would have reduced the maneuvering space To access the boxes of the condominium and would have requested the need to carry out more maneuvers for the cars, and as the blind and endangering road is ended in front of the condominium, the concession of the portion of public space in front of the condominium until the end of the road would have caused Difficulty of maneuver and inversion for emergency vehicles.

As highlighted by the judges of the Lazio Tar, Rome, it is upsetTherefore, to the Administration to count the various public and private interests which emerge in the provision of employment of public land; This implies that the refusal of granting the use of public land, requested for the satisfaction of a private interest, must be congruously motivatedas a generic motivation is not sufficient that does not allow to understand the reasons for the refusal.

Need conduct an investigation case by case In order to exaggerate in concrete terms if the conditions exist to allow the employment of the public space, ascertaining whether the private interest based on the application does not harm the public interests that should be safeguarded. The adoption of the refusal measure must be preceded by the communication of the impedimental reasons to the acceptance of the OSP application (art. 10-bis of law no. 241/1990); Failure to communicate the impedimental reasons instantly prevents the administration with the administration on the content of the final refusal measure. In the specific case addressed by the judges of the Lazio Tar, no communication had been before the refusal: this circumstance had determined the illegitimacy of the refusal itself.

Further relevant aspects

The body can always establish limits and methods of using public land occupationas long as not manifestly illogical or unreasonable (2): for example, in the case of granting the public land required in order to be declared to carry out political propaganda activities, according to the jurisprudence (3), the work of the Administration is corrected in requesting , in order to evaluate the absentability of the application, a preventive declaration of adhesion to the constitutional values ​​of anti -fascism and repudiation of fascism and Nazism: in this way, the administration has correctly balanced the applicant’s private interest in carrying out activities of political propaganda with the public interest to that this happens in dutiful and conscious respect for constitutional values.

Is excludedFurthermore, given the absence of an explicit regulatory provision in this sense (4), that the institution of the CD silence-assent can operate on the application for public land(5), taking into account its concession nature, of the significant public interests connected to the correct planning of the territory (6) and the irrepressible and obvious needs of public interest to the full control of the municipal body about the use of its roads (7) . As correctly highlighted, the concession procedure presupposes the exercise of a discretionary power above all on theanwhich excludes the applicability of the silence-assent regime at the root (8).

Notes

(1) Once the concession relationship was established, the body still retains a large discretion, considering that it can proceed with the revocation of the concession of public land for non -fulfillment, for non -compliance with the requirements provided for in the field of road safety, for surviving reasons for public safety; for abuse, as in the hypothesis in which the concessionaire has occupied a higher surface than the authorized one.
(2) Tar Campania, Salerno, section I, sent. February 24, 2022, n. 550.
(3) Tar Piedmont, section II, sent. April 18, 2019, n. 447.
(4) Tar Emilia Romagna, Bologna, section II, sent. February 3, 2022, n. 122.
(5) Tar Lazio, Rome, section II ter, sent. 23 July 2021, n. 8905; Section II, sent. April 16, 2020, n. 3994; Tar Campania, Salerno, section II, sent. June 23, 2020, n. 712; TAR Lombardy, Milan, Section I, sent. February 7, 2018, n. 350.
(6) Tar Lazio, Rome, section II ter, sent. 12 July 2021, n. 8292 and n. 8303 and sent. 31 December 2013, n. 11192; TAR Lombardy, Milan, Section I, sent. February 7, 2018, n. 350; Tar Puglia, Lecce, section I, sent. March 12, 2021, n. 389; Tar Molise, section I, sent. January 21, 2021, n. 16; Tar Sicily, Catania, section III, sent. December 14, 2017, n. 2898; Council of State, section V, sent. May 9, 2017, n. 2109; Tar Campania, Naples, section III, sent. June 3, 2016, n. 3316.
(7) Tar Lazio, Rome, section II ter, sent. January 20, 2021, n. 841.
(8) Council of State, section V, sent. November 6, 2019, n. 7564.