With an appeal lodged with the Sicily-Palermo TAR, an Agrigento owner of a plot of land located in Sciacca in the Belvedere-Pozzo di Gallo district has challenged the councilor’s decree no. 64 GAB of 30 September 2021 for the approval of the landscape plan of areas 2, 3, 5, 6, 10, 11, and 15 of the province of Agrigento, in the part in which the planning instrument has subjected the aforementioned fund to protection level 3 , given that it would be covered by a wooded area or subject to reforestation restrictions.
In particular, the appellant – represented and defended by the lawyers Gaetano Caponnetto and Vincenzo Caponnetto – criticized the further provisions of the same decree relating to the parcels relating to the land adjacent to that of his property, which would damage his dominion rights.
In detail, the lawyers Gaetano and Vincenzo Caponnetto entrusted the appeal to two sets of complaints which denounced the perplexed and contradictory motivation with which the appellant’s observations regarding the adopted plan were allegedly rejected, and the excess of power for lack of investigation, misrepresentation, unreasonableness and violation of the art. 97 of the Constitution which would affect the contested provision.
In summary, the appellant deduced that the areas owned by him would lack the characteristics corresponding to the landscape destination given to them, and that the motivation underlying the rejection of the observations presented would be lacking and ambiguous, given the reference contained therein to possible subsequent checks on the actual occurrence of wooded areas.
The respondent Regional Administration – duly brought before the court – requested the rejection of the appeal, noting that in drafting the part of the plan relating to the identification of the wooded areas, the landscape authority could only have taken note of the Regional Forestry Inventory, drawn up by the competent Forestry Corps.
The Sicily-Palermo TAR, with a ruling published on 11/06/2024, decided to accept the objections raised by the lawyers Gaetano and Vincenzo Caponnetto, regarding the lack of preliminary investigation of the contested decree, which does not take into account the circumstance that the land the appellant’s property is not characterized by the presence of wooded areas.
The Superintendency of the BB.CC.AA. of Agrigento has in fact taken note of the results of the investigations delegated to the local Forestry Department which found on the land concerned “… the presence of olive trees… The perimeter of the area… is the result of aerial photo interpretation of satellite photos and in this context the trees on the roadside of the SS. 115…consisting of Eucalyptus plants was erroneously extended also to cadastral parcels no. 121,156 and 157 of the Cadastral Map Sheet n. 109 of the CT of the municipality of Sciacca, who probably mistook the olive trees … for eucalyptus trees. Therefore the fruit trees in the cadastral parcels no. 121,156 and 157 of the cadastral map sheet n° 109 of the CT of the municipality of Sciacca… do not fall within the definition of forest”, thus starting the procedure for correcting the contested Landscape Plan.
Administrative judges have in fact considered that the initiation of this proceeding in itself confirms the investigative shortcomings reported on this point by the appellant party, given that the regional Authority was evidently content to carry out an exclusively paper-based assessment by making its own dated information, instead of take action to carry out new and updated checks on the state of the places, exactly as was done, belatedly, with the start of the correction procedure of the contested Plan which is currently underway.
In other words, documentary proof was given of the non-existence of the wooded area on the appellant’s land. In essence, the Sicily-Palermo TAR correctly highlighted that the findings concerning the areas of the Municipality of Sciacca considered wooded by the contested Landscape Plan were of such relevance and consistency as to require, before the approval of the plan, the necessary investigative investigations whose absence it is rightly denounced by the appellant.
In light of this, the Sicily-Palermo TAR accepted the appeal, annulling the contested provision only in the part in which the planning instrument subjected the land owned by the appellant to protection level 3, given that it would be covered by a wooded area or subject to reforestation constraints.
