The following is a review of the most relevant recent rulings on authorization procedures for the construction and operation of plants for the production of energy from renewable sources.
1. Plants on industrial areas, former quarries and landfills - Authorization with DILA without the need to obtain other opinions.
In its decision no. 1922/2024, the Veneto Regional Administrative Court held that, according to Article 22 bis, Legislative Decree no. 199/2021, introduced by Article 47 paragraph 1 letter b) of Decree-Law no. 13/2023, being the installation of ground-mounted photovoltaic plant and the related connection works in areas for industrial, handicraft and commercial use or, again, in landfills or closed and restored landfill lots or lots or portions of quarries not susceptible to further exploitation, an ordinary maintenance activity, is not subject to the acquisition of any permit, authorization or act of consent. In such cases, any rejection measure adopted by the competent authority at the outcome of the PAS, (erroneously) activated by the operator, must be deemed unlawful. This also applies in the event that the aforesaid procedure was activated (in this case appropriately) prior to the entry into force of the aforementioned Article 22 bis, since, by virtue of the principle tempus regit actum, the new provision, in the absence of different transitional provisions, also applies to proceedings already pending at that date.
2. PAS in suitable areas - Related works may also be authorized in PAS where they are located in unsuitable areas.
With order no. 605/2024, the Regional Administrative Court of Palermo, referring to the provision set forth in paragraph 1 ter, Article 22, Legislative Decree no. 199/2021, noted that the interconnection works of RES plants “may benefit from the simplified authorization rules provided for suitable areas, regardless of their location”. This implies that, even where such interconnection works are located in non-suitable areas, they can in any case - in abstract - be treated as insisting in suitable areas, with the procedural simplifications that comes therefrom, thus leaving it up to the Administration to justify the incompatibility of the works with the area in which they are to be located, having regard to the specific characteristics of the territory and the constraints that insist on it. The Regional Administrative Court comes to these considerations also by virtue of the well-established jurisprudence according to which areas not included in the list of suitable areas “cannot be declared unsuitable for the installation of renewable energy production plants, at the territorial planning stage or within the scope of individual proceedings, simply because they are not included in the list of suitable areas” (see ex multis, Palermo Regional Administrative Court, orders no. 3272 of 8 November 2023, no. 3814 of 20 December 2023, no. 95 of 11 January 2024 and, most recently, no. 87 of 22 February 2024).
In the same order, moreover, the Palermo Regional Administrative Court took the opportunity to give prominence to the periculum deriving from the delay that the competent Administration accumulates in the issuance of the authorization title, having to consider both the fact that the construction of the plant itself is connected to the grid capacity booked by the proponent through the acceptance of the interconnection solution, and the limited duration of the same reservation, equal to only 270 business days from the acceptance of the solution, failing which the reservation would lose its validity and the consequent exposure of the proponent to the risk of the possible exhaustion of the grid capacity.
3. Authorization in suitable areas - The opinion of the Superintendence is not binding.
In its decision no. 867/2024, the Regional Administrative Court of Sardinia ruled that “if the EIA application concerns a project to be located in suitable areas according to the applicable law, as in the case now under examination, the opinion of the Superintendence is not binding, which is why the competent Ministries must adopt the final act of the procedure on the basis of an autonomous motivation, They cannot merely transpose the opinion expressed by the Superintendence itself, especially when, as in the case now under examination, its opinion is contradicted by the ones expressed by other offices that participated in the preliminary investigation”. In this case, the Court observes, the rejection measure adopted by the MASE is unlawful as it merely recall the negative opinion of the Special Superintendence for the PNRR, without adding anything and without even referring to the favourable opinions that had been expressed by other offices during the preliminary investigation, in particular the Technical VIA-VAS Commission of the same MASE.
4. Authorization in suitable areas - The Municipality cannot introduce new restrictions for the construction of RES plants.
With ruling no. 3464/2024, the Lombardy Regional Administrative Court found that “the introduction, at a merely local level, of a system of rules aimed at restricting the scope of the areas concretely usable for the establishment of photovoltaic plants, without clear reasons justifying the introduction of such measures in function of the protection of potentially impaired competing interests that are equally worthy of protection as well as in breach of the principle of strict proportionality in relation to the protection requirements pursued, also runs counter to the favour expressed by European Union legislation, in particular Regulation (EU) 2022/2577 of 22. 12.2022, according to which ‘the planning, construction and operation of installations for the production of energy from renewable sources, their connection to the grid, the grid itself, and storage facilities shall be regarded as being in the overriding public interest and in the interest of public health and safety when balancing the legal interests in individual cases’”. Censuring the rules set forth in the municipal building regulations, the Regional Administrative Court specified that if the site chosen for the installation of the photovoltaic plant falls on an area declared suitable by law, the local authority has no chance for assessment as to the installation of the work. The only discretionary margin that remains to the municipal administration is the possibility of introducing a merely building regulation relating to construction aspects, which must, however, move within strict boundaries and be declined according to a principle of strict proportionality in order to remain so and not provide for criteria that prevent the installation of such energy sources.
5. Priority criterion in the EIA - The peremptory nature of the terms of the EIA procedure for non-priority projects does not disappear.
In judgement no. 9793/2024, the Council of State reaffirmed the peremptory nature of all the terms of the EIA procedure (cf. art. 25, paragraph 7, Legislative Decree 152/2006). Questioning the interpretative scope of art. 8, paragraph 1, of Legislative Decree. 152/2006, as amended by Decree-Law 17/2022, in the part in which it establishes a criterion of priority in the assessment of projects with a significant economic and employment impact or with expiring authorizations, the Council of State, in fact, held that “in any case, even regardless of the methods used by the administration to give concrete expression to the legislative criterion of priority the Ministry should have adopted, under the legislation in force, organizational measures such as to allow the examination of priority projects, without prejudice to the observance of the deadlines for the conclusion of proceedings relating to non-priority projects inasmuch as they are not derogated from by any provision of law”. The criterion of priority thus assumes, therefore, mere internal relevance for the purposes of an orderly and effective management of the authorization procedures by the bodies deputed thereto, “but it is not such as to assume, at the same time, a derogatory scope to the legal regulation of the time limit for the conclusion of the proceedings”.
6. Tempus regit actum - Article 22 bis also applies to proceedings pending on the date of its entry into force.
In its decision no. 790/2024, the Sardinian Regional Administrative Court upheld the appeal against the refusal of a single authorisation pursuant to Article 12 of Legislative Decree no. 387 of 2003 concerning the construction of a photovoltaic plant with a capacity of 104.076 MW in an industrial area, on the basis of the tempus regit actum principle, since, during the authorization procedure, Article 47 of L.D. no. 13 of 24.2.2023 (conv. L. no. 41 of 23.4.2023) entered into force, introducing art. 22 bis into the L.D. no. 199 of 2021, entitled ‘Simplified procedures for the installation of photovoltaic plants’.
In the opinion of the Court: “The regional refusal, in view of the new legislation, is not lawful”, since “the project in question is no longer subject to the single authorization regime” with the consequence that the procedure for its issue should have been closed since the activity can be qualified as ordinary maintenance not subject to authorization and, therefore, “free building activity” by virtue of the entry into force of Article 22 bis.
7. State EIAs - The priority criterion for the treatment of certain projects does not invalidate the peremptory nature of the deadlines for the conclusion of the proceedings for ‘non-priority’ projects.
With decision no. 830/2024, the Regional Administrative Court of Sardinia declared the illegitimacy of the MASE's silence with respect to the obligation to proceed in relation to the adoption of the Environmental Impact Assessment (EIA) measure within the terms provided for by Article 23 et seq. of Legislative Decree no. 152 of 2006 on the basis of the assumption that “the introduction of a priority criterion in the processing of applications based on the greater power of the plant (art. 8, para. 1, legislative decree no. 152/2006) cannot in itself legitimize the failure to comply with the deadline for the conclusion of the proceeding (art. 25, para. 7, legislative decree no. 152/2006) for other projects, also in view of the circumstance that they are aimed at satisfying interests attributable to the operation of the business”.
8. Cost-effectiveness of administrative action - Sardinian Moratorium - The operator may ask the municipal administration to correctly qualify its application in the light of the legislation that has come into force.
In its decision No. 844/2024, the Sardinian Regional Administrative Tribunal observes that, following the entry into force of Law No. 5/2024 (the so-called Sardinian Moratorium), the operator may ask the municipal administration to correctly classify its application in the light of the legislation that has come into force, providing the necessary documentation according to the clarifications provided by the regional law itself on the characteristics of the so-called ‘agri-voltaic’ projects exempt from the moratorium.
The different opinion, expressed by the administration, that the applicant could have made a new application in accordance with the new law, thus giving rise to a new procedure, is in contrary to concentration, economy and efficiency principle of administrative action requiring that when a procedural-communication channel is already open between the administration and private individuals, and a different and relevant piece of legislation comes into force, the same channel should be used to specify - in the light of the change that has taken place - the contents and characteristics for the recognition of the authorization / right that has already been requested.
9. In the case of areas to be acquired through an expropriation procedure, the non-availability of the areas is not an obstacle to the establishment of the tacit authorization.
In judgment No. 847/2024, the Sardinian Regional Administrative Court deemed the authorization to construct the repowering works for a wind farm consisting of 27 wind turbines with a total capacity of 121.5 MW to have been tacitly obtained following the expiry of the 60-day period provided for by Legislative Decree No. 50/2022 from the submission of the application.
On this point, the competent Authority objected to the failure to demonstrate the availability of the areas by the applicant, pointing out that the expropriation procedure could not be considered tacitly concluded.
This assertion, however, according to the Court, is not compliant with the applicable law, given that Article 12, paragraph 4 bis of Legislative Decree No. 387/2003 provides that for plants other than those indicated in the first paragraph (which does not include wind farms) the operator “[...] when submitting the application for authorisation referred to in paragraph 3, may request the declaration of public utility and the attachment of the pre-ordained expropriation of the areas affected by the construction of the plant and related interconnection works”.
It follows that the competent Authority could not have objected to the non-availability of the areas as an obstacle to the recognition of the tacit formation of the authorization, given that their actual availability will depend on the performance of the expropriation procedures following the conclusion of the authorization procedure.
Nor can the tacit formation of the title be prevented by the Moratorium provided for by Regional Law No 5/2024, given that that law entered into force on 4 July 2024, therefore, long after the formation of the tacit authorization, on which it could not produce any preclusive effect.
10. The unsuitability of the areas due to the lack of the prerequisites for the application of one of the areas indicated in paragraph 8, Article 20, of Legislative Decree 199/2021, does not prevent the qualification of the areas as suitable due to the existence of the prerequisites relating to a different case under the same paragraph.
In this case, dealt with by the Regional Administrative Court of Tuscany with decision no. 1359/2024, the competent Authority had denied the authorization for the construction of a ground mounted photovoltaic plant, although it fell within a suitable area pursuant to letter c-ter, paragraph 8, of Article 20 of Legislative Decree 199/2021, as it did not fall within the suitable areas referred to in letter c-quater, since the area falls within the perimeter of a protected zone pursuant to Article 12, paragraph 1 of Legislative Decree 42/2004.
For the Regional Administrative Court of Tuscany: “The above provisions must be interpreted, as stated by recent jurisprudence (…), in the sense that they provide for two distinct hypotheses, cumulative among themselves, of ex lege suitability of territorial areas for the construction of photovoltaic plants. In other words, the ascertained existence of the prerequisites of one of the two provisions contained in letters c-ter and c-quater means that the area has to be deemed suitable. More specifically, with reference to the present case, the possible ineffectiveness of letter c-quater does not exclude that the plant is authorizable under letter c-ter, since the second of the two provisions (quater) adds a new hypothesis of legal eligibility, textually preserving the operability of the first provision (ter)’.
