Order T.A.R. Sardinia, Sec. II, 15.6.2023, no. 141. Single Authorisation ex art.12 of D. Lgs. no. 387 of 2003 in variation to the urban planning instrument

In the order in object, the Regional Administrative Court of Sardinia – by rejecting the interlocutory petition filed by the Municipality against the Single Authorisation issued by the Sardinia Region for the construction of a photovoltaic plant with ground-mounted modules in an industrial area – reiterated some general principles concerning the availability of the area necessary to submit the application, the correct procedures for the holding of the Services Conference necessary to acquire the opinions of the Administrations involved in the authorisation process and the effectiveness of the authorisation issued as a variation to the town planning instrument.

In particular, the Regional Administrative Court, rejecting the specific complaints raised by the applicant on this point, stated that:

  • even in the event that, during the course of the Services Conference held in asynchronous mode (i.e., held without a meeting but by means of the mere transmission between the participating administrations, by telematic means, of communications, applications and determinations), one or more negative opinions are issued, it is not necessarily necessary to convene the Conference in synchronous mode, if the proceeding administration deems the negative opinions to be surmountable in any case on the basis of the prevailing positions expressed during the Conference
  • the conflict with the local town planning regulations that preclude, in a given sub-zone of the industrial area, the construction of RES plants to the benefit of other production activities, can be overcome in light of the clear provisions of Article 12, paragraph 3, of Legislative Decree no. 387/2003, according to which the single authorisation constitutes, where necessary, a variation to the town planning instrument;

a preliminary contract for the establishment of surface rights is also fully eligible for the application for the issue of the Single Authorisation, as a title of “availability” of the land pursuant to Article 12, c. 4 bis, of Legislative Decree no. 387/2003.