Judgment TAR Puglia-Lecce, Sec. II, 11.04.2022, no. 586 It is unlawful to deny authorization to an agrovoltaic plant without considering the technical differences that distinguish it from a traditional photovoltaic plant

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The Regional Administrative Court of Lecce found illegitimate the measure of the Province of Taranto by which a negative judgment of environmental compatibility was expressed (and therefore the release of the P.A.U.R. was denied) in relation to an agrovoltaic plant with a capacity of 68.475 MW to be built in the territory of the Municipality of Ginosa (TA).

In fact, the Administrative Judge saw evidence of lack of preliminary investigation in the activity carried out by the administration and recalled that in the authorization procedure for RES plants, several interests of equal rank (and not only the landscape) come into play. These interests must be fully assessed during the preliminary investigation: “the entities involved in the definition of the procedure under consideration ( first and foremost the Region and the Superintendence, which with their opinions inevitably influenced the final decision by the Provincial Administration) should have made a judgment of balancing the various interests involved […] The lesson to be drawn from the Constitutional Court’s assessments is therefore, in essence, that of balancing competing interests. That which the Administration has substantially lacked with reference to the project under consideration (agri-voltaic), and which for these reasons results in the alleged profile of illegitimacy of the challenged acts.”

The TAR also highlighted the central role of agri-voltaics, also in light of the current international landscape, in achieving decarbonization goals: “In evidence, the agro-voltaic sector constitutes the object of specific study and attention by the central and regional government, in the awareness that the balancing of interests of equal constitutional rank(the interest in the protection of the rural landscape, on the one hand; the interest in the implementation of energy supply systems from alternative sources to fossil fuels) is not implemented through the simplistic “zero option” (no to RES plants on a given area), but involves questioning the possibility of combining agricultural needs with those of energy production from “clean” sources. But, if this is the case, one cannot understand the choice of the Administrations involved, which, without questioning (except in a generic and marginal way) the benefits of the plant under consideration, have given decisive weight to the change in the “Texture ” of reference that would be realized with the implementation of the plant under consideration.”

The parameters with which the Administration must comply in the re-exercise of the preliminary proceedings were then dictated: “By virtue of the conforming obligations arising from this judicial pronouncement, it will be incumbent on the various Administrations involved in the proceedings under consideration, in the re-exercise of the power, to carry out in-depth investigations – which must obviously be fully accounted for in the reasoning – regarding:

(a) the possibility of localization of the plant on the area under consideration, taking into account that the one under consideration is not a “photovoltaic” plant, placed “on the ground”(see contested opinion no. 4177/21, p. 12), but an agri-voltaic plant, whose panels are detached from the ground (see the cited Reports in the record, with the relevant photographic evidence);
(b) to the shielding of the plant from the various arterial roads, as well as from the various reference views;

(c) to the balancing of the interest in the preservation of the reference agricultural plot, and the interest (of strategic importance, especially in light of the current international scenario) in the supply of energy from renewable sources; all taking into account, to this end, the objectives declaimed by the Region itself with DGR no. 1424/18, as well as those supported by the central government through the PNRR”.