Italian Supreme Administrative Court rules on Superintendence’s denial of photovoltaic installations in restricted areas

Council of State - Judgement no. 9778/2023

What happened?

The Italian Supreme Administrative Court (Division VI, judgment no. 9778/2023) issued a judgement regarding the powers of the Superintendence concerning landscape authorizations for rooftop photovoltaic plants. In the case at hand, the Superintendence for Cultural Heritage of Verona, Vicenza, and Rovigo (“Superintendence”) had issued a notice of preliminary denial and, subsequently, a definitive denial to a private company’s request for authorization to install photovoltaic and solar panels on the roof of a building subjected to cultural constraint – pursuant to Legislative Decree no. 42/2004 - in the city of Verona. In particular, the measure containing the final denial illustrated how the intervention proposed by the private company would have been incompatible with the nature of constrained property under Part II (Cultural Heritage) of Legislative Decree no. 42/2004 and under the Ministerial Decree of 25 October 1989. In fact, as indicated in the measure of denial, the intervention would have replaced an architectural feature of considerable interest, conveying a certain construction technique. Such intervention would have entailed a permanent replacement of the traditional roof, resulting in an alteration of the protected property. 

The company then challenged said measure before the Veneto Regional Administrative Court, which ruled in favour of the claimant, pointing out the nature of “public utility work” of plants producing electricity from renewable sources (“RES plants”).

This decision was appealed by the Ministry of Culture, which criticized the misinterpretation of Article 21, Legislative Decree no. 42/2004, headed “interventions subject to authorization”.

The Council of State noted that the Superintendence’s evaluation is an expression of broad discretion, which can be judicially reviewed only with regard to the logicality, consistency, and completeness of the assessment.  In the case at hand, the Superintendence’s denial measure was congruously and reasonably motivated. In ruling in favour of the claimant, the administrative court of first instance had invaded the domain reserved to the Public Administration, overstepping the limits of the control of legality of acts within which administrative judges may operate, with the exception of the matters of jurisdiction extended to the merits under Article 134 of the Code of Administrative Process.

Why is it important?

At first glance, the judgement in question downsizes - at least apparently - the scope of some legal positions adopted by the Council of State itself. In fact, the Council of State (judgement no. 2242/2022) had affirmed that the Superintendence cannot oppose “private initiatives that (...) do not directly stand (...) on areas of which the Administration has affirmatively demonstrated the subjection to landscape, archaeological, hydraulic, forest constraints (...)”.

However, upon closer inspection, indeed this ruling confirms the case law. In fact, it is implicitly stated that the Superintendence cannot oppose the installation of RES Plants if no protected areas are involved. On the contrary, if the area is subject to constraints - as in the case at hand - the Superintendence retains a certain degree of discretion, which is not amenable to merits review by administrative judges. In doing so, the Council of State seems to draw a well-defined demarcation line on the scope of competence within which the Superintendence may express itself in the context of authorization procedures for RES Plants (i.e., only those cases in which the areas concerned are constrained), at the same time highlighting that, where there is indeed competence of the Superintendence, administrative judges must restrict themselves to a control of legality and not on the merits.

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Piero Viganò.