Judgment TAR Abruzzo, Pescara, Sec. I, 26.10.2022, no. 421. Single authorization under Article 12 of Legislative Decree No. 387 of 2003 – Legitimacy of the issuance of the title despite the contrary opinion expressed by the municipality

Link to the judgment:

https://www.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza/?nodeRef=&schema=tar_pe&nrg=202200143&nomeFile=202200421_01.html&subDir=Provvedimenti

Summoned to rule on the measure by which the Abruzzo Region issued the authorization pursuant to Article 12 of Legislative Decree No. 387 of 2003 for the construction and commissioning of a photovoltaic plant with a capacity of 996 kW aimed at the production of green hydrogen, the Regional Administrative Court of Abruzzo – Pescara, with the judgment in question, rejected the appeal promoted by the municipality in which the plant is planned to be built.
The Municipality, at the Services Conference, had expressed a contrary opinion motivated by the location of the project in an agricultural area and the alleged non-compatibility of the intervention with the urban destination of the area, which would only allow the construction of works instrumental to the conduction of the agricultural fund. In its appeal to the Regional Administrative Tribunal, the municipality reiterated similar complaints, also claiming that the project area was affected by the presence of valuable agricultural crops; which would have supported the refusal expressed by the Authority in the authorization.
The Regional Administrative Court, on the other hand, found that the decision made by the Abruzzo Region to authorize the project despite the contrary opinion of the local authority was legitimate, due to the textual provisions of Article 12, paragraph 7, of Legislative Decree no. 387 of 2003, in the mind of which renewable energy production plants “may also be located in areas classified as agricultural by the urban plans in force,” and the fact that the Single Authorization “constitutes, where necessary, a variant to the urban planning instrument” where its forecasts are not consistent with local urban planning, pursuant to paragraph 3, first sentence.
In addition, the Regional Administrative Court. notes in the judgment under review that at the Services Conference the favorable opinions of all the other entities affected by the construction of the plant had been correctly collected, each for their respective competences; and that the contrary opinion of the Municipality, “based, as it turned out, on reasons of an essentially urban planning nature, was not unreasonably considered recessive, since the aforementioned Administration in any case did not give documentary evidence of the deduced valuable agricultural characteristics of the area affected by the construction of the plant; (… ) on the contrary, the land appears to fall within zone E1 ‘normal agricultural’ of the PRG.”