Administrative, Urban Planning, Strategic Relevance of the Overall Public Works Project, TAR Molise 06 June 2019 Judgment n. 209
Strategic relevance of the overall public work project and consequent need to submit it to administrative procedures in environmental matters
Environment – Strategic environmental assessment – Public work – Strategic relevance for urban mobility – Public utility declaration – Master Plan – Variant – Omitted strategic environmental assessment – Illegitimacy.
Environment – Strategic environmental assessment – Public works – Strategic relevance for urban mobility – Declaration of public utility – Verification procedure of being subject to environmental impact assessment – Limited to part of the work – Illegitimacy
Pursuant to the articles 5 and 6 of Legislative Decree n. 152/2006, must be submitted to the strategic Environmental Assessment procedure – SEA, the project approved by the Municipality that has dimensions and consistency of absolute importance since it is destined to affect the entire structure of the city road network and to transform a very large part of the structure urban; nor, in order to exclude this evaluation, the project can be split into the individual works that compose it, on the contrary having to be evaluated in its entirety and complexity (1).
The activity through which the administration verifies the subjectability of the EIA, even if characterized by wide technical discretion, can be syndicated in the jurisdictional context from the point of view of the lack of investigation, lack or absolute illogicality of the motivation, of the erroneous assumptions de facto and / or manifest inconsistency of the evaluation procedure; the activation of the EIA screening procedure cannot concern a limited part of the work but must refer to all the disputed interventions (2).
(1) The TAR has censured the omission of the SEA as a necessary and unavoidable phase of the urban planning procedure put in place by the Municipality for the declaration of public utility of a public work as a whole of strategic importance and the violation of a procedural procedure that , if properly activated, it would have allowed to better evaluate and weigh precisely the strictly environmental interests involved in it.
The TAR has considered that it cannot exclude the subjection of the project to the SEA procedure, due to the fact that it would be a single work located on a specific and limited portion of the municipal territory.
(2) The TAR, given that the possibility of anticipating the protection by challenging the refusal of submission to the EIA cannot lead to any forfeiture, has found that the activity through which the administration provides for the verification of the subjectivity of the EIA, although characterized by wide technical discretion, it can be syndicated in the jurisdictional context from the point of view of the lack of investigation, of the lack or absolute illogicality of the motivation, of the incorrectness of the assumptions of fact and / or manifest inconsistency of the evaluation procedure; in the case in point, illegitimately, the activation of the procedure of verification of being subject to EIA has concerned a limited part of the work instead of all the interventions in dispute.
Source Administrative Justice
