Administrative, Urban planning, Relationship between urban planning tools and safeguard clauses, Cons. St., section II, Judgment of March 23, 2020 n. 2012
The urban design expressed by a general planning tool constitutes a manifestation of the planning power characterized by wide discretion which reflects not only choices strictly inherent to the building organization of the territory, but also pertaining to the broader and more comprehensive framework of possible options inherent in its partner development -cheap; it is articulated on various levels, according to the principles of subsidiarity, so as to try to ensure the level of government closest to the context to which the task of enhancing the local historical, economic and cultural peculiarities refers, together with the principle of adequacy and effectiveness of the administrative action (1).
In order to avoid that in the period between the adoption and the definitive approval of a plan, measures are issued that allow building activities (or in any case transformative) of the territory, in the same way as more permissive rules, compromising the structure for as “designed” and designed in the tools adopted, the “safeguard clauses” are used in urban planning; they materialize in the due suspension of the procedures aimed at obtaining the aforementioned qualifications, up to the approval of the new urban planning instrument, and pending its entry into force, as for which the definitive determination must be taken (2).
1) With the judgment in question, the Section addresses the problem of the relationship between the various territorial planning levels, highlighting that in identifying the contents, those of greater detail are referred to the measures adopted by the Authorities closest to the territory, in compliance with the principles of subsidiarity and effectiveness of administrative action.
The relationship between the various planning levels implies a specific scrutiny of their scope and potentiality immediately detrimental to the position of the individual, without waiting for a “specification” in the narrower territorial context.
Otherwise, in the absence of specific indications in the subordinate Plans, or, even earlier, once the correctness of the same has been ascertained, the interest in the autonomous appeal of the superordinate Plan would also disappear.
(2) In terms of intertemporal law, the so-called “Safeguard measures”, in an exclusively precautionary perspective, are the rules used in urban planning in order to avoid that in the period between the adoption and the final approval of a plan, the release of measures that allow building activities (or in any case transformative) of the territory, in the same way as more permissive norms, may compromise its structure as “designed” and conceived in the tools adopted.
They materialize in the due suspension of the procedures aimed at obtaining the aforementioned qualifications, up to the approval of the new urban planning instrument, and pending its entry into force, on the basis of which the definitive determination must be taken.
The need underlying the safeguard measures is therefore of a conservative nature and is identified in the need that the requests of private individuals – based on a planning deemed no longer current, as in progress, and therefore potentially modified – end up profoundly altering the situation of fact and, consequently, to definitively jeopardize the general objectives to which urban planning is aimed, making it extremely difficult, if not impossible, to implement the plan in progress (Cons. St., Section IV, 20 January 2014 , no. 257).
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