Plenary Conference of the State Council Decision
December 3, 2008, No 13
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
the Council of State in the courts, the Plenary Conference, gives the following
DECISION
on appeals (appeal meeting) nn. 12 and 13 of 2008, proposed:
as the No 12, 2008, by Soc RANCO, in its legal representative pro tempore, represented and defended by the lawyers and the Roman Hercules Diego Vaiano, address for service in Rome, Lungotevere Marzio No 3, at the Chambers of Parliament;
as the No 12, 2008, by Soc RANCO, in its legal representative pro tempore, represented and defended by the lawyers and the Roman Hercules Diego Vaiano, address for service in Rome, Lungotevere Marzio No 3, at the Chambers of Parliament;
against the city of Ranchi, in the person of the mayor pro tempore, represented and assisted by Claudio Linzola Ramadori and Joseph, at the latter address for service in Rome , by Marcello Prestinari No 13;
and against the Lombardy Region, in the person of the President pro tempore, rappresentato e difeso dagli avv.ti Marco Cederle e Giuliano M. Pompa, elettivamente domiciliata presso quest’ultimo in Roma, via Boncompagni n. 71/c;
per la parziale riforma
della sentenza n. 182 del 2007 del TAR Lombardia- Milano, Sezione I, e per l’integrale l’accoglimento del ricorso di primo grado;
nonché
quanto al ricorso n. 13 del 2008, dalla Soc. RANCO, in persona del legale rappresentante pro tempore, rappresentato e difeso dagli avv.ti Ercole Romano e Diego Vaiano, elettivamente domiciliato in Roma, Lungotevere Marzio n. 3, presso lo studio di quest’ultimo;
contro
the city of Ranchi, in the person of the mayor pro tempore, represented and assisted by Claudio Linzola Ramadori and Joseph, at the latter address for service in Rome, Via Marcello Prestinari No 13;
and against the Lombardy Region, in the person of the President pro tempore, represented and assisted by Pierre Pujatti and Julian M. Pump, at the latter address for service in Rome, Via Boncompagni n. 71 / c;
for the annulment of the sentence no
217 of 2007 the TAR Lombardia-Milano, Section I, given in court for Complying with the final;
Given the actions by its attached;
In view of appearance in court of general intimacy
Given the order of Section Four of this Council on July 18, 2008 n.3615, which causes, after the meeting, the meeting examined were reassigned Plenary Council of State;
Views memories produced by the parties;
viewed the acts of all causes;
Rapporteur, public hearing on October 20, 2008 the cons. Luciano Barra Caracciolo;
heard also represented. Buccellato, as delegated by Att. Ramadori, lawyer. Pump Att. Romano.
Given the actions by its attached;
In view of appearance in court of general intimacy
Given the order of Section Four of this Council on July 18, 2008 n.3615, which causes, after the meeting, the meeting examined were reassigned Plenary Council of State;
Views memories produced by the parties;
viewed the acts of all causes;
Rapporteur, public hearing on October 20, 2008 the cons. Luciano Barra Caracciolo;
heard also represented. Buccellato, as delegated by Att. Ramadori, lawyer. Pump Att. Romano.
FACT 1. Before moving on to the particular dispute considered as resulting from the respective positions of the parties with acts of appeal and the pleadings of the respondents, it is appropriate to disclose the terms of the fact that they are the previous and the context where it takes place n the story itself, which was particularly articulation and complexity, even in relation to time elapsed since the beginning of the many contentious assumptions that here in relief.
On June 9, 1971, the appellant company and the city of Ranchi have signed a development agreement, the object of an area covering 54,500 square meters. to create a volume of about 37,000 cubic meters., implementing the then current manufacturing program. Subsequently, the permit was issued, imposed on the impact area of \u200b\u200ba geological constraint.
The Mayor of Ranco denied, with an initial decision of 8 August 1975, n.1312, the building permit application from the appellant, and that denial was rescinded its ruling of October 28, 1979 Tar Lombardia, No 800, on the ground that "the mere presence of the bond hydrogeological art. Lrn51 40 of 1975, did not entail a complete foreclosure of buildings ", subject to prior authorization of the regional, there is also the specification of the basis for refusal in respect of subparagraph a) or b) the same art.40, paragraph 2.
E 'state, then, first adopted (in 1977) and then approved, by the said resolution No regional 3 \\ 5970 of 31 March 1981, the general plan, and this, in adopting the municipality, had described the area as Guaranteed clear, because it is subject to geological constraints, and the region, upon approval, the technical standards had changed, returning to areas "a certain building rights" (cf., p. 12, Decision IV, No. 3 \\ 1988 cited). Taking the decision to run
No 800 of 1979, the mayor of Ranchi on 11 February 1980 issued a further denial, noting that the previous one must be understood in the sense that descended inedificabilità by the presence of tall trees, representing a wooded area in accordance with art. 40 of Regional Law No 51, 1975.
in favor of an additional deployment of the company, the TAR - with sentence no 385, 1985 - annulled the second denial, the incompetence of the Mayor identified as the management of the hydrogeological bond fell within the functions delegated by the Region of the mountain community. The same sentence no
385 of 1985 granted the application brought by the company against the variant lottizzante the plan and ordered the cancellation did not take into account the seniority of the existing development agreement. This ruling is
stata, appunto, confermata da questa Sezione con la decisione n. 3 del 1988, che ha respinto le censure formulate dal Comune e dalla Regione.
La società, previa notifica di una diffida, ha proposto il ricorso per l’ottemperanza alla sentenza n. 385 del 1985.
Con la sentenza n. 187 del 1990, il TAR ha accolto il ricorso ed ha nominato un commissario ad acta (rilevando che una nota trasmessa dalla Regione aveva osservato che spettava al Comune eseguire il giudicato).
Il commissario ad acta con “deliberazione” del 31 gennaio 1991, n.1, ha quindi adottato una variante al piano regolatore, tenendo conto della sopravvenuta legge n. 431 del 1985 e delle conseguenti normative regionali di coordinamento e di attuazione. La variante ha previsto la riduzione del contenuto del precedente piano di lottizzazione, sia in termini volumetrici (10.000 mc. invece di oltre 30.000 mc.), sia per la concentrazione in quattro lotti dei volumi.
L’atto commissariale non è stato approvato dalla Regione Lombardia, che – con la delibera n. 39033 del 16 luglio1993 - ha ravvisato la sussistenza della inedificabilità temporanea dell’area, ai sensi dell’art. 1 ter della legge n. 431 del 1985.
La società ha impugnato tale delibera regionale sia con un ricorso d’ottemperanza, sia con un ricorso di legittimità, invocando i principi formulati dall’Adunanza Plenaria, con la decisione n. 1 del 1986, sui rapporti tra il giudicato di annullamento exercise of planning powers.
The TAR - with sentence no 1146 of 1995 - brought together the applications and rejected them, arguing the legality of the regional powers exercisable by reason of the region. The sentence no
1146, 1995, was reformed by this Section by Decision No 2592, 2000, for which:
- the region was bound to respect the principles derived from the sentence no 385 of 1985 the TAR, the obligation of compliance borne by the Region itself, a necessary part of the main proceedings and to comply, despite the different and contradictory execution sentence and appealed the earlier ruling by the court, no.187 of 1990, contenente un “parziale ordine di esecuzione” indirizzato al solo Comune;
- in sede di approvazione della variante, la Regione non avrebbe potuto effettuare un sindacato sulle scelte del commissario ad acta, le cui statuizioni hanno tenuto conto di tutti gli interessi in conflitto, incombendo sulla Regione di far valere in sede di ottemperanza “l’esistenza di probabili vincoli di inedificabilità temporanea” legati alla subentrata disciplina paesaggistica, e spettando alla Regione non già un potere valutativo autonomo ma l’esercizio, quale parte del giudizio di merito e di ottemperanza, di un “dovere di esecuzione implicito, ma non attuale, perché comunque condizionato dalla preventiva attivazione the municipality or body that replaced "
- has ordered that the same Commissioner ad acta to finalize the process by adopting the procedure of approval and release of variant, where compliance with it, the requested building permits (and placing out of the region to pay for his further consideration). This decision
No 2592 of 2000 became final, because they have been declared ineligible - and by the United Sections of the Fourth Section - actions brought by the City and Region, respectively, for reasons of jurisdiction and for revision.
The company, therefore, with an initial appeal, asked the Administrative Court to determine further steps in the same assessment of compliance already "suspended" after the sentence no reformed 1146, 1995, and has also submitted a further appeal No. 209 of 2003, which seeks the condemnation of the Municipality and the Region to pay damages.
At the hearing on June 7, 2007, more than two applications, was also retained by the Administrative Court decision in appeal No. 2856, 2000, against the proposed plan, adopted by municipal No 15 of 1997 and approved by Resolution No regional 16 of 2000.
The TAR has thus decided:
- with sentence no 182, 2007, dismissed the appeal n.209 of 2003 proposed for the damages;
- with sentence no 216, 2007, upheld the appeal No. 2856, 2000, brought against the variant approved by the Region with Resolution No. 16 of 2000 for failing to take account of the previous sentence no 385, 1985 and subsequent decisions made in the implementation of res judicata;
- with sentence no 217, 2007, found that the Commissioner should have considered the importance of the landscape plan have occurred, approved by Resolution No regional 197, 2001, and appointed a different Commissioner ad acta (in the person of the Director of the Varese province or officer appointed by him).
2. No appeal against the sentence 182, 2007, which dismissed the claim for damages, the company brought the appeal No 4356 of 2007, entitled as No. 12 \\ 2008 in the role of the PA, deducting the following complaints:
A) misrepresentation of the facts. To appeal the ruling, the measures had been canceled by the administrative judge for lack of substantial justification and does not entail the guilt on the part of the PA, which does not lose the power to renew the act, from which the referral of ' subjective element to the outcome of adopting the new measure.
the appellant alleges that the refusal of planning permission had not been following the onset of variant PRG canceled for lack of motivation, but for different reasons and autonomous, that it was not one, but two denials, the second leading annulment of the first, that the sentence no 385, 1985, made the final, after his confirmation by the State Council, sect. IV, by Decision No 3 of 1988, had met and decided two appeals relating to a unit, one to the refusal of planning permission and the other variant to the PRG that had obliterated the existing development agreement.
It derives that the appellant, in terms of buildings, had already checked that assumption (reiteration of the exercise of power) that the sentence be considered eligible to claim the claims for damages.
addition, the appellant submits that the refusal of planning permission, canceled by the Lombardy Regional Administrative Court of the judgments nos. 800, 385, 1979 and 1985, were not canceled for lack of motivation, but because the City had considered that the occurrence rule in art. 40 of Law No 51 of 1975 had resulted in a substantial constraint inedificabilità land affected by the presence of tall trees. The TAR, with the sentence no 800 of 1979, had stated that the bond did not involve geological inedificabilità, but it was only necessary that the building was assisted by renewed clearance issued by the competent regional authorities. The Town Council had renewed the refusal, on the assumption that the first denial had been deemed deficient had integrated motivation and motivation in relation to the number of tall trees on the ground.
Hence the cancellation of the new TAR with sentence no 385, 1985, confirmed by Decision No 3 of 1988 of this Section.
According to the appellant, the second refusal would misuse the rules relating to the discipline of geological constraints and deliberately departed from the earlier decision would be referred to the decision No 800, 1979.
Hence the sustained violation of the rules of care, skill, prudence, fairness required that characterize the presence of a responsibly negligent conduct, punishable by condemnation damages.
B) In terms of planning, given the variation of the PRG that had obliterated the existing development agreement, The appellant contends that the fact that the defect is caducatorio involved a lack of motivation can not believe that such a defect would lead to the absence of fault compensation administration, we must assess the voluntariness or otherwise of such failure with respect to the relationship which administrative determination relates.
Call, in support of its argument, the sentence no 157, 2003 Cass civ., Sec. I, and as stated in Decision No Section 3 of this 1988, made inter partes.
C) The appellant complaint, then, the decision under appeal for what concerns the evaluation of the relevance of the previous assessment of compliance, wandering the Tar considered at fault in the exercise landscape of power on the part of the Region when the same sentence of Section IV n.2592 \\ 2000 had stated that the same should have been exercised by a different instrument (interlocutory proceedings on the enforcement court).
This is because the regional intervention that he had denied approval of the variant proposed by the Commissioner ad acta, in light of the sentence no 2592 of 2000 for the annulment of such resolution, reveals the fallacy of the contested decision, by arguing that you can not configure a crime in having the regional administration believed it could use its powers in its refusal to approve the variation, powers the rest regarded as legitimate by the ruling of first instance.
The appeal claims in this regard that the decision No 2592 of 2000 took the view that the region would have to behave in keeping with the decision of the TAR Lombardia n. 187, 1989 (compliance), compared to which the approval of new planning tools by the region arose as a result does not necessarily have an independent power evaluation, but as an exercise of an implied duty of enforcement, conditioned by prior activation of the City or body that replaced, and whether the region is excluded not only judged, but also requires the assessment of compliance, in which only he could speak, and evoked as a necessary part.
Region that had been held illegally out of compliance by the court, believing they can act as a proper and independent, that is released from the effects of res judicata for annulment and the ruling that had ordered the execution by denying the approval of the zoning plan Commissioner ad acta alleged in the application of Law No. 431 of 1985, substantial protection against subsequent acts of planning under the same law.
This behavior, which consists in subtracting the execution of a res judicata, would breach Article. 2909 cc, full of bad governance and administrative choice then exercised the power and violation of the rule in urban development from meeting in Plenary, by Decision No 1, 1986, which admitted the relevance of jus superveniens during the proceedings, but limit the need for reconciliation with the public interest underlying the new rules, if landscape, with the structure built above the interest claimed by the applicant victorious. Having the region opposite to variant planning commissioner, reductive volumes provided by development plan and adhering to the standards of protection introduced by Law n.431 paesaggitica \\ 1985, the temporary inedificabilità the area pending the formation of the regional landscape plans, constituted a negligent perception of the function, which actually had to be exercised.
Indeed, the fault of the governing body uses all the time in which the illegality of the measure is put in relation with the will of that body through the character negligent, reckless or empire of his action in this case.
D) The appellant company denies, then, in point of fact the decision under appeal in which the finding that there is a shared responsibility for art. 1227 cc of society itself, preserved in the inertia require further action by the Commissioner ad acta.
Indeed, immediately after the decision No 2592 of 2000 the company had to challenge a new legal challenge una ulteriore variante del PRG (D.G.R. n.16\2000), anch’essa non rispettosa della convenzione di lottizzazione. Detto ricorso è stato chiamato alla stessa udienza di merito e unitariamente discusso con quello della presente vicenda e con l’altro dell’ottemperanza, ottenendo l’accoglimento con la sentenza n. 216 del 2007. La presenza del nuovo PRG si poneva, quindi, di ostacolo alla prosecuzione del giudizio di ottemperanza.
Inoltre, la stessa decisione n. 2592 del 2000 aveva formato oggetto di ricorso per revocazione e di ricorso per motivi di giurisdizione (quest’ultimo deciso solo con la sentenza Cass. SS. UU. n. 5730 del 2002).
E) In conclusione, la difesa della società appellante affida al Collegio the definition of the relationship between the current assessment for Complying with the deemed action for damages, claiming that that, in relation to the quantum well and related securities, which can not achieve the outcome of the first, as it seeks the recognition of possibility to build the land, although within narrow limits by the variant adopted by the Commissioner ad acta.
It proposes, therefore, the questions raised at first instance, with the specification and the corresponding decrease in the outcome other than quantification of compliance in the event of the meeting of two actions or suspension of the present action until the conclusion of the first.
As for damages, seeking the power of the Board art. 35, comma 2, Decree no. 80/98, the plaintiff asks:
1) determine and enforce the responsibilities of the entities mentioned in court in the adoption of the contested and invalidated in the courts and in the overall outcome of the proceedings held various reviews;
2) find and declare that at that responsibility are achieved in economic losses borne by the company concerned, consisting of:
a) the foreclosure of exercising the right to build and, therefore, the loss of value of the land b) immobilization in self invested capital is the value of the land, and by the loss of possible negotiations, c) in the disposal area of \u200b\u200bthe City of mq.500 d) the costs and bureaucratic management of the development agreement and tax policy for the continued life of soc. Ranco, as well as any expenses for project activities;
3) order the Government agreed on an exclusive or inclusive to pay damages according to the titles on display, the amount that will result from espletanda CTU, and called the inquiry, exercising, if necessary , the power that art. 35, comma 2, Decree no. 80/98;
4) by way of investigation: 1) admit CTU to be heard in the compensable amount is determined according to the questions that the College will be determined, 2) admit witness evidence on the chapters indicated in the application.
3. The City of Ranco, set up in court, has argued for the inadmissibility of the claims in the - (as the company initiated a review of compliance together with the request for damages) - damages that could not be compared to measure residual satisfattoria 'specific performance. Therefore, the fate of these burdens that would depend on the claim of the company, of which, however, in this respect, dispute the validity.
Indeed, the regulatory patchwork that occurred, would have made a side Guaranteed clear for multiple profiles l’area di cui trattasi e dall’altro avrebbe introdotto elementi di oggettiva incertezza giuridica.
Nel 1993 la Regione non aveva approvato la variante proposta dal Commissario ad acta in quanto contrastante con il regime di cui all’art.1 ter della legge n. 431 del 1985, senza che in tale comportamento potesse essere ravvisata alcuna colpa del Comune.
D’altro canto, l’odierna appellante avrebbe dovuto attivarsi in sede di esecuzione di giudicato, ove avesse ritenuto di avere titolo ad edificare.
Ha segnalato, poi, che il D.Lgs. n. 157/06, modificando gli artt. 156 e 157 del Codice dei beni culturali e del paesaggio, ha fatto rivivere le cd. misure di salvaguardia di cui all’art. 1 ter D.L. n. 312/85, conv. in L. No 431/85, where, in the light of new provisions designed to protect landscaping, it requires the establishment of a new landscape plan or modifying the existing one, to take place by May 1, 2008. Therefore, at present, it is the will of the legislature to safeguard the areas covered by the construction art. 1 b cit, which is in question.
4. The Lombardy Region, established in court, pleaded the lack of interest of the applicant company, which has not yet applied for building permits required for the performance of edificatoria. It held that the City Council, in Resolution No. 7 of 2007, approved a variant its PRG, aimed at establishing a protected area, with a decision under appeal to the Administrative Court of Lombardy, Appl. No 2208 of 2007, but effective. This decision ruled on the applicant any expectations in relation to the volume of contention, much less in terms of Recoverability equivalent to having been guilty of inertia determined by the applicant. Neither is true of the argument from this side that concessions could not be obtained until 2007 due to the impediment of the variant adopted by resolution of the City Council No 15 of 1997 and approved by Resolution No regional VI/4934/00, removed only with the sentence no 216 of 2007, as No decision already 2592 Section 2000 of this declaration authorized the commissioner to conclude the procedure acta variant and release, where compliance with it, the requested building permits.
Region, then, in terms of cause of action, argues that there was no compensable interest held by the source, since, as noted by the first court ruling in the appeal, the administration has been the recipient of an obligation to provide on the matter of the litigation, not being in the presence of a ruling autoesecutiva (No. 385 of 1985), such that the applicant was forced to promote a review of compliance in this regard, terminated (Case No 187 of 1998) with the appointment a commissioner ad acta. In other words, this appointment was not caused by government inaction, but by the need for riesercizio of administrative power, its supposed to build the private sector remained conditioning.
The Region disputes, then the perfect nature and compensation for the right source from the development plan signed in 1971, having to assess specifically the Recoverability of injury caused to the interests of pretense (see Sent. Cass.SS.UU., No. 500 1999), especially where, as in this case there must be a further act of a discretionary nature, aimed at the instance riprovvedere edificatoria private.
Region excludes, then, that in light of subsequent events, the applicant can be entitled to compensation based on a prognosis of all detached from the events later, or be entitled to delay damages in relation to the small cube and then actually made.
In summary, without the principle that the protection of the pretentious allows a transition to a similar repairs only when the interest pretentious to assume its object the protection of interests of substantial prognostic protection could only be granted as compensation for the expectation in favor of the measure in this condition, and no alternative to a possible compensation for delays, but that would require the recognition of the importance, acknowledged by the measure before the riedizione del potere. Nel caso de quo nessuna prova sarebbe stata fornita circa la possibilità che la riedizione del potere, effettuatasi solo con la determinazione del commissario ad acta, si sarebbe risolta in senso favorevole alla ricorrente. Di conseguenza, ritiene la Regione che nessun giudizio di rimprovero potrebbe essere effettuato a carico delle Amministrazioni resistenti.
Esclude, poi, la sussistenza, oltre al danno risarcibile, degli elementi per la sussistenza della responsabilità aquiliana, specificando che, ove fossero rimproverati comportamenti omissivi, vi sarebbe difetto di giurisdizione del giudice amministrativo (dec. n. 204/04 Corte cost.). Per i censurati provvedimenti impeditivi, ne esclude la sussistenza, non potendosi believe that the arrangements have been adversely against the applicant by reference to legislation vincolistica area (which had argued for the Lombardy Regional Administrative Court ruling No. 1146 of 1995, then reformed by Decision No 2592 of 2000 in this section) may lead responsibility for the administration, not being a configurable culpa in re ipsa, positively excluded from our system. In any case, it is recalled as non-contractual matters in both the actor-damaged to prove the guilt of the defendant, as well as the burden of proof of the subjective element (art. 2697 cc). The Region
next disputes the suitability of the resolution of No GR VI/49343/00 of 31 marzo 2000 a ledere la pretesa del ricorrente: con essa venne approvata la variante di PRG adottata dal Comune, nell’esercizio dei poteri pianificatori di competenza.
La Regione, contesta, poi, il quantum delle richieste risarcitorie contenute nel ricorso in appello, riportandosi a quanto già eccepito nelle difese di I grado. Chiede, in via istruttoria, il rigetto della istanze testimoniali e di CTU perché inammissibili e irrilevanti e, nel merito, il rigetto del ricorso perché infondato.
5. Con il secondo ricorso, n.4537\07, rubricato al n.13\2006 presso il ruolo di questa Adunanza Plenaria, la medesima società ha proposto appello avverso la sentenza n. 217 del 2007 del TAR - intervenuta nel giudizio di ottemperanza to the decision No 385 of 1985 the TAR, based on sentence # 187/89, which is followed by Decision No 2592 Section IV of the 2000 Council of State concerning the applicant's right to obtain the issuance of building permits, albeit in simplistic terms under the new act of planning Commissioner ad acta, which took into consideration the landscape and environmental values \u200b\u200bsupervening arising from the Law 431 of 1985 - the Company alleging infringement of the rules of res judicata and the trial for his compliance, and a misuse.
The statement in ruling that the judge would be formed only on the field of urban planning and building (Judgement No 385/85) and for this provides that the Commissioner ad acta must take account of landscape plan occurred in 2001, ignores the court referred to the decision of this Section no 2592 of 2000, which had recognized the legitimacy of the Commissioner ad acta, which would be to include assessments of the landscape.
The sentence, therefore, is incorrect because the problems were so alien to the landscape matters alleged in the decision 385 dated 1985, but they could not whether the Commissioner ad acta, as evidenced by its report to the version as it makes adottatae account the decision of the Section IV n.2592, 2000. The Tar
therefore did not view the rulings have occurred gradually, attestanti l’esatto e definitivo contenuto del diritto della ricorrente ancorandolo anche alla tutela di valori paesaggistici conseguenti alla sopravvenuta normativa di settore; perciò non avrebbe dovuto affermare che il nuovo commissario ad acta era tenuto a procedere in base al nuovo piano paesistico regionale, essendosi detta fase valutativa già esaurita in precedenza, nel corso del procedimento conclusosi con la decisione n. 2592 del 2000 del Consiglio di Stato ed essendo tale profilo rientrante nella formazione c.d. progressiva del giudicato, nell’ambito temporale del giudizio di ottemperanza, al punto da non potersi rimettere continuamente in discussione la pretesa del privato fondata sul giudicato, al sopravvenire di nuove disposizioni amministrative in general, obliterating conclusive judgments. In sent. No 182, 2007 by the court (contested in the first of the appeals now before the Board), in rejecting the claim for damages, stating that their judgment No. 2592 of 2000 cited above. was derived by the company attributable to the claimant the benefit of the subject of administrative life, contradicting assertions by the contemporary ruling here appealed. The Judges would prevail, however, also occurred on legislation (AP Arg. former No. 2 of 1998, which is considered untouchable by the law occurred which has become typical cnflitto with the contents of the investigation, and the situations and relationships not intended to be renewed in time).
It is argued that, in this case, detection of the rules in dec. No 1, 1986 AP, which considers unenforceable who has a view that the changes occurring in the town planning of the service sentence upheld the appeal against the refusal of building, as well as the existence in the hands of the private entity has an interest in that pretentious 'authority to review the current PRG to that extent a view to making an exception to retrieve variant, consistent with the public interest, the provision of implementation plan repealed. A grant
all, according to the appellant, the decision under appeal does not consider that the legislation that has guided the first determination of the Commissioner ad acta, and then the preparation of landscape plan by the region in 2001 is the same, namely the Law 431 of 1985.
6. Challenged the City of Ranco, set up in court, the inadmissibility of the appeal, whose real purpose, even if directed against the decision made in the compliance, would be to challenge the actions of the Commissioner ad acta (against whose determinations was proposed stand-alone application). Raises also the unfounded allegations on the merits.
Report, then, on the continued inedificabilità area, that the Legislative Decree no. 157, 2006, by amending the Articles. 156 and 157 the CD. Code No 42, 2004, brings to life the cd. safeguard measures under Article. 1 b DL No 312/85, conv. in L. No 431/85, where, in the light of new provisions designed to protect landscaping, it requires the establishment of a new landscape plan or modifying the existing one, to take place by May 1, 2008. Therefore, at present, it is the will of the legislature to safeguard the areas covered by the construction art. 1 b cit, which is in question.
7. The Lombardy Region contends at the outset of the appeal is inadmissible, missing items, the state, for a further involvement of the court. Only after the scrutiny of del commissario ad acta si potrà, in seguito, reintervenire in sede di esame della correttezza del suo operato, il che, peraltro, sarebbe già avvenuto, avendo la società depositato presso il TAR Lombardia in data 4 gennaio 2008 un ricorso per l’esecuzione di giudicato avverso la deliberazione commissariale assunta il 30 ottobre 2007. Nel merito, l’appello sarebbe infondato, in quanto la sentenza n. 2592 del 2000 di questa Sezione è antecedente al piano paesistico e la sentenza di cui si chiede l’esecuzione (n. 385 del 1985) nulla dispone in tema di tutela paesistica dei luoghi, prendendo in considerazione solo il vincolo idrogeologico.
7. Attesi gli evidenti motivi di connessione i due ricorsi in appello indicati in epigrafe sono stati riuniti ai fini di un’unica rimessione al’A.P..
All’attenzione di questo Consesso, al fine di poter dirimere la complessiva controversia sopra illustrata, l’ordinanza prospetta le seguenti questioni:
a) l’individuazione del momento in cui può essere valutata la domanda di risarcimento dei danni per lesione di interessi legittimi nel caso di annullamento di un provvedimento discrezionale, e precisamente se tale valutazione possa essere effettuata soltanto all’esito del nuovo esercizio del potere, sicchè non potrebbe essere concesso risarcimento ove permanessero in capo all’Amministrazione spazi di discrezionalità amministrativa, ovvero a prescindere dal riesercizio del potere;
b) identification of the characters of the guilt of the public apparatus, which is necessary to grant compensation for damages resulting from injury to legitimate interests;
c) determining the relationship between judges and residual powers of the pa-building in urban and particularly if the pa may or may not reflect the changes of urban plans have arisen in the course of the proceedings;
d) determining the relationship between assessment of compliance and compensatory action is unclear whether this latter, even with regard to the quantum and the related securities, should or should not achieve the outcome of the first;
e) the existence or otherwise of the administrative jurisdiction concerning the liability of behavior of pa omission since he can argue that the failures of the integrated "behavior" of omission, breach rights subjects know the ordinary courts after the ruling of the Constitutional Court in 2004 n.204.
On the pleadings of the parties mentioned above, who have invested a total of the questions dealt with both appeals in the above, the case was retained in the decision, after discussion, public hearing on October 20, 2008.
On June 9, 1971, the appellant company and the city of Ranchi have signed a development agreement, the object of an area covering 54,500 square meters. to create a volume of about 37,000 cubic meters., implementing the then current manufacturing program. Subsequently, the permit was issued, imposed on the impact area of \u200b\u200ba geological constraint.
The Mayor of Ranco denied, with an initial decision of 8 August 1975, n.1312, the building permit application from the appellant, and that denial was rescinded its ruling of October 28, 1979 Tar Lombardia, No 800, on the ground that "the mere presence of the bond hydrogeological art. Lrn51 40 of 1975, did not entail a complete foreclosure of buildings ", subject to prior authorization of the regional, there is also the specification of the basis for refusal in respect of subparagraph a) or b) the same art.40, paragraph 2.
E 'state, then, first adopted (in 1977) and then approved, by the said resolution No regional 3 \\ 5970 of 31 March 1981, the general plan, and this, in adopting the municipality, had described the area as Guaranteed clear, because it is subject to geological constraints, and the region, upon approval, the technical standards had changed, returning to areas "a certain building rights" (cf., p. 12, Decision IV, No. 3 \\ 1988 cited). Taking the decision to run
No 800 of 1979, the mayor of Ranchi on 11 February 1980 issued a further denial, noting that the previous one must be understood in the sense that descended inedificabilità by the presence of tall trees, representing a wooded area in accordance with art. 40 of Regional Law No 51, 1975.
in favor of an additional deployment of the company, the TAR - with sentence no 385, 1985 - annulled the second denial, the incompetence of the Mayor identified as the management of the hydrogeological bond fell within the functions delegated by the Region of the mountain community. The same sentence no
385 of 1985 granted the application brought by the company against the variant lottizzante the plan and ordered the cancellation did not take into account the seniority of the existing development agreement. This ruling is
stata, appunto, confermata da questa Sezione con la decisione n. 3 del 1988, che ha respinto le censure formulate dal Comune e dalla Regione.
La società, previa notifica di una diffida, ha proposto il ricorso per l’ottemperanza alla sentenza n. 385 del 1985.
Con la sentenza n. 187 del 1990, il TAR ha accolto il ricorso ed ha nominato un commissario ad acta (rilevando che una nota trasmessa dalla Regione aveva osservato che spettava al Comune eseguire il giudicato).
Il commissario ad acta con “deliberazione” del 31 gennaio 1991, n.1, ha quindi adottato una variante al piano regolatore, tenendo conto della sopravvenuta legge n. 431 del 1985 e delle conseguenti normative regionali di coordinamento e di attuazione. La variante ha previsto la riduzione del contenuto del precedente piano di lottizzazione, sia in termini volumetrici (10.000 mc. invece di oltre 30.000 mc.), sia per la concentrazione in quattro lotti dei volumi.
L’atto commissariale non è stato approvato dalla Regione Lombardia, che – con la delibera n. 39033 del 16 luglio1993 - ha ravvisato la sussistenza della inedificabilità temporanea dell’area, ai sensi dell’art. 1 ter della legge n. 431 del 1985.
La società ha impugnato tale delibera regionale sia con un ricorso d’ottemperanza, sia con un ricorso di legittimità, invocando i principi formulati dall’Adunanza Plenaria, con la decisione n. 1 del 1986, sui rapporti tra il giudicato di annullamento exercise of planning powers.
The TAR - with sentence no 1146 of 1995 - brought together the applications and rejected them, arguing the legality of the regional powers exercisable by reason of the region. The sentence no
1146, 1995, was reformed by this Section by Decision No 2592, 2000, for which:
- the region was bound to respect the principles derived from the sentence no 385 of 1985 the TAR, the obligation of compliance borne by the Region itself, a necessary part of the main proceedings and to comply, despite the different and contradictory execution sentence and appealed the earlier ruling by the court, no.187 of 1990, contenente un “parziale ordine di esecuzione” indirizzato al solo Comune;
- in sede di approvazione della variante, la Regione non avrebbe potuto effettuare un sindacato sulle scelte del commissario ad acta, le cui statuizioni hanno tenuto conto di tutti gli interessi in conflitto, incombendo sulla Regione di far valere in sede di ottemperanza “l’esistenza di probabili vincoli di inedificabilità temporanea” legati alla subentrata disciplina paesaggistica, e spettando alla Regione non già un potere valutativo autonomo ma l’esercizio, quale parte del giudizio di merito e di ottemperanza, di un “dovere di esecuzione implicito, ma non attuale, perché comunque condizionato dalla preventiva attivazione the municipality or body that replaced "
- has ordered that the same Commissioner ad acta to finalize the process by adopting the procedure of approval and release of variant, where compliance with it, the requested building permits (and placing out of the region to pay for his further consideration). This decision
No 2592 of 2000 became final, because they have been declared ineligible - and by the United Sections of the Fourth Section - actions brought by the City and Region, respectively, for reasons of jurisdiction and for revision.
The company, therefore, with an initial appeal, asked the Administrative Court to determine further steps in the same assessment of compliance already "suspended" after the sentence no reformed 1146, 1995, and has also submitted a further appeal No. 209 of 2003, which seeks the condemnation of the Municipality and the Region to pay damages.
At the hearing on June 7, 2007, more than two applications, was also retained by the Administrative Court decision in appeal No. 2856, 2000, against the proposed plan, adopted by municipal No 15 of 1997 and approved by Resolution No regional 16 of 2000.
The TAR has thus decided:
- with sentence no 182, 2007, dismissed the appeal n.209 of 2003 proposed for the damages;
- with sentence no 216, 2007, upheld the appeal No. 2856, 2000, brought against the variant approved by the Region with Resolution No. 16 of 2000 for failing to take account of the previous sentence no 385, 1985 and subsequent decisions made in the implementation of res judicata;
- with sentence no 217, 2007, found that the Commissioner should have considered the importance of the landscape plan have occurred, approved by Resolution No regional 197, 2001, and appointed a different Commissioner ad acta (in the person of the Director of the Varese province or officer appointed by him).
2. No appeal against the sentence 182, 2007, which dismissed the claim for damages, the company brought the appeal No 4356 of 2007, entitled as No. 12 \\ 2008 in the role of the PA, deducting the following complaints:
A) misrepresentation of the facts. To appeal the ruling, the measures had been canceled by the administrative judge for lack of substantial justification and does not entail the guilt on the part of the PA, which does not lose the power to renew the act, from which the referral of ' subjective element to the outcome of adopting the new measure.
the appellant alleges that the refusal of planning permission had not been following the onset of variant PRG canceled for lack of motivation, but for different reasons and autonomous, that it was not one, but two denials, the second leading annulment of the first, that the sentence no 385, 1985, made the final, after his confirmation by the State Council, sect. IV, by Decision No 3 of 1988, had met and decided two appeals relating to a unit, one to the refusal of planning permission and the other variant to the PRG that had obliterated the existing development agreement.
It derives that the appellant, in terms of buildings, had already checked that assumption (reiteration of the exercise of power) that the sentence be considered eligible to claim the claims for damages.
addition, the appellant submits that the refusal of planning permission, canceled by the Lombardy Regional Administrative Court of the judgments nos. 800, 385, 1979 and 1985, were not canceled for lack of motivation, but because the City had considered that the occurrence rule in art. 40 of Law No 51 of 1975 had resulted in a substantial constraint inedificabilità land affected by the presence of tall trees. The TAR, with the sentence no 800 of 1979, had stated that the bond did not involve geological inedificabilità, but it was only necessary that the building was assisted by renewed clearance issued by the competent regional authorities. The Town Council had renewed the refusal, on the assumption that the first denial had been deemed deficient had integrated motivation and motivation in relation to the number of tall trees on the ground.
Hence the cancellation of the new TAR with sentence no 385, 1985, confirmed by Decision No 3 of 1988 of this Section.
According to the appellant, the second refusal would misuse the rules relating to the discipline of geological constraints and deliberately departed from the earlier decision would be referred to the decision No 800, 1979.
Hence the sustained violation of the rules of care, skill, prudence, fairness required that characterize the presence of a responsibly negligent conduct, punishable by condemnation damages.
B) In terms of planning, given the variation of the PRG that had obliterated the existing development agreement, The appellant contends that the fact that the defect is caducatorio involved a lack of motivation can not believe that such a defect would lead to the absence of fault compensation administration, we must assess the voluntariness or otherwise of such failure with respect to the relationship which administrative determination relates.
Call, in support of its argument, the sentence no 157, 2003 Cass civ., Sec. I, and as stated in Decision No Section 3 of this 1988, made inter partes.
C) The appellant complaint, then, the decision under appeal for what concerns the evaluation of the relevance of the previous assessment of compliance, wandering the Tar considered at fault in the exercise landscape of power on the part of the Region when the same sentence of Section IV n.2592 \\ 2000 had stated that the same should have been exercised by a different instrument (interlocutory proceedings on the enforcement court).
This is because the regional intervention that he had denied approval of the variant proposed by the Commissioner ad acta, in light of the sentence no 2592 of 2000 for the annulment of such resolution, reveals the fallacy of the contested decision, by arguing that you can not configure a crime in having the regional administration believed it could use its powers in its refusal to approve the variation, powers the rest regarded as legitimate by the ruling of first instance.
The appeal claims in this regard that the decision No 2592 of 2000 took the view that the region would have to behave in keeping with the decision of the TAR Lombardia n. 187, 1989 (compliance), compared to which the approval of new planning tools by the region arose as a result does not necessarily have an independent power evaluation, but as an exercise of an implied duty of enforcement, conditioned by prior activation of the City or body that replaced, and whether the region is excluded not only judged, but also requires the assessment of compliance, in which only he could speak, and evoked as a necessary part.
Region that had been held illegally out of compliance by the court, believing they can act as a proper and independent, that is released from the effects of res judicata for annulment and the ruling that had ordered the execution by denying the approval of the zoning plan Commissioner ad acta alleged in the application of Law No. 431 of 1985, substantial protection against subsequent acts of planning under the same law.
This behavior, which consists in subtracting the execution of a res judicata, would breach Article. 2909 cc, full of bad governance and administrative choice then exercised the power and violation of the rule in urban development from meeting in Plenary, by Decision No 1, 1986, which admitted the relevance of jus superveniens during the proceedings, but limit the need for reconciliation with the public interest underlying the new rules, if landscape, with the structure built above the interest claimed by the applicant victorious. Having the region opposite to variant planning commissioner, reductive volumes provided by development plan and adhering to the standards of protection introduced by Law n.431 paesaggitica \\ 1985, the temporary inedificabilità the area pending the formation of the regional landscape plans, constituted a negligent perception of the function, which actually had to be exercised.
Indeed, the fault of the governing body uses all the time in which the illegality of the measure is put in relation with the will of that body through the character negligent, reckless or empire of his action in this case.
D) The appellant company denies, then, in point of fact the decision under appeal in which the finding that there is a shared responsibility for art. 1227 cc of society itself, preserved in the inertia require further action by the Commissioner ad acta.
Indeed, immediately after the decision No 2592 of 2000 the company had to challenge a new legal challenge una ulteriore variante del PRG (D.G.R. n.16\2000), anch’essa non rispettosa della convenzione di lottizzazione. Detto ricorso è stato chiamato alla stessa udienza di merito e unitariamente discusso con quello della presente vicenda e con l’altro dell’ottemperanza, ottenendo l’accoglimento con la sentenza n. 216 del 2007. La presenza del nuovo PRG si poneva, quindi, di ostacolo alla prosecuzione del giudizio di ottemperanza.
Inoltre, la stessa decisione n. 2592 del 2000 aveva formato oggetto di ricorso per revocazione e di ricorso per motivi di giurisdizione (quest’ultimo deciso solo con la sentenza Cass. SS. UU. n. 5730 del 2002).
E) In conclusione, la difesa della società appellante affida al Collegio the definition of the relationship between the current assessment for Complying with the deemed action for damages, claiming that that, in relation to the quantum well and related securities, which can not achieve the outcome of the first, as it seeks the recognition of possibility to build the land, although within narrow limits by the variant adopted by the Commissioner ad acta.
It proposes, therefore, the questions raised at first instance, with the specification and the corresponding decrease in the outcome other than quantification of compliance in the event of the meeting of two actions or suspension of the present action until the conclusion of the first.
As for damages, seeking the power of the Board art. 35, comma 2, Decree no. 80/98, the plaintiff asks:
1) determine and enforce the responsibilities of the entities mentioned in court in the adoption of the contested and invalidated in the courts and in the overall outcome of the proceedings held various reviews;
2) find and declare that at that responsibility are achieved in economic losses borne by the company concerned, consisting of:
a) the foreclosure of exercising the right to build and, therefore, the loss of value of the land b) immobilization in self invested capital is the value of the land, and by the loss of possible negotiations, c) in the disposal area of \u200b\u200bthe City of mq.500 d) the costs and bureaucratic management of the development agreement and tax policy for the continued life of soc. Ranco, as well as any expenses for project activities;
3) order the Government agreed on an exclusive or inclusive to pay damages according to the titles on display, the amount that will result from espletanda CTU, and called the inquiry, exercising, if necessary , the power that art. 35, comma 2, Decree no. 80/98;
4) by way of investigation: 1) admit CTU to be heard in the compensable amount is determined according to the questions that the College will be determined, 2) admit witness evidence on the chapters indicated in the application.
3. The City of Ranco, set up in court, has argued for the inadmissibility of the claims in the - (as the company initiated a review of compliance together with the request for damages) - damages that could not be compared to measure residual satisfattoria 'specific performance. Therefore, the fate of these burdens that would depend on the claim of the company, of which, however, in this respect, dispute the validity.
Indeed, the regulatory patchwork that occurred, would have made a side Guaranteed clear for multiple profiles l’area di cui trattasi e dall’altro avrebbe introdotto elementi di oggettiva incertezza giuridica.
Nel 1993 la Regione non aveva approvato la variante proposta dal Commissario ad acta in quanto contrastante con il regime di cui all’art.1 ter della legge n. 431 del 1985, senza che in tale comportamento potesse essere ravvisata alcuna colpa del Comune.
D’altro canto, l’odierna appellante avrebbe dovuto attivarsi in sede di esecuzione di giudicato, ove avesse ritenuto di avere titolo ad edificare.
Ha segnalato, poi, che il D.Lgs. n. 157/06, modificando gli artt. 156 e 157 del Codice dei beni culturali e del paesaggio, ha fatto rivivere le cd. misure di salvaguardia di cui all’art. 1 ter D.L. n. 312/85, conv. in L. No 431/85, where, in the light of new provisions designed to protect landscaping, it requires the establishment of a new landscape plan or modifying the existing one, to take place by May 1, 2008. Therefore, at present, it is the will of the legislature to safeguard the areas covered by the construction art. 1 b cit, which is in question.
4. The Lombardy Region, established in court, pleaded the lack of interest of the applicant company, which has not yet applied for building permits required for the performance of edificatoria. It held that the City Council, in Resolution No. 7 of 2007, approved a variant its PRG, aimed at establishing a protected area, with a decision under appeal to the Administrative Court of Lombardy, Appl. No 2208 of 2007, but effective. This decision ruled on the applicant any expectations in relation to the volume of contention, much less in terms of Recoverability equivalent to having been guilty of inertia determined by the applicant. Neither is true of the argument from this side that concessions could not be obtained until 2007 due to the impediment of the variant adopted by resolution of the City Council No 15 of 1997 and approved by Resolution No regional VI/4934/00, removed only with the sentence no 216 of 2007, as No decision already 2592 Section 2000 of this declaration authorized the commissioner to conclude the procedure acta variant and release, where compliance with it, the requested building permits.
Region, then, in terms of cause of action, argues that there was no compensable interest held by the source, since, as noted by the first court ruling in the appeal, the administration has been the recipient of an obligation to provide on the matter of the litigation, not being in the presence of a ruling autoesecutiva (No. 385 of 1985), such that the applicant was forced to promote a review of compliance in this regard, terminated (Case No 187 of 1998) with the appointment a commissioner ad acta. In other words, this appointment was not caused by government inaction, but by the need for riesercizio of administrative power, its supposed to build the private sector remained conditioning.
The Region disputes, then the perfect nature and compensation for the right source from the development plan signed in 1971, having to assess specifically the Recoverability of injury caused to the interests of pretense (see Sent. Cass.SS.UU., No. 500 1999), especially where, as in this case there must be a further act of a discretionary nature, aimed at the instance riprovvedere edificatoria private.
Region excludes, then, that in light of subsequent events, the applicant can be entitled to compensation based on a prognosis of all detached from the events later, or be entitled to delay damages in relation to the small cube and then actually made.
In summary, without the principle that the protection of the pretentious allows a transition to a similar repairs only when the interest pretentious to assume its object the protection of interests of substantial prognostic protection could only be granted as compensation for the expectation in favor of the measure in this condition, and no alternative to a possible compensation for delays, but that would require the recognition of the importance, acknowledged by the measure before the riedizione del potere. Nel caso de quo nessuna prova sarebbe stata fornita circa la possibilità che la riedizione del potere, effettuatasi solo con la determinazione del commissario ad acta, si sarebbe risolta in senso favorevole alla ricorrente. Di conseguenza, ritiene la Regione che nessun giudizio di rimprovero potrebbe essere effettuato a carico delle Amministrazioni resistenti.
Esclude, poi, la sussistenza, oltre al danno risarcibile, degli elementi per la sussistenza della responsabilità aquiliana, specificando che, ove fossero rimproverati comportamenti omissivi, vi sarebbe difetto di giurisdizione del giudice amministrativo (dec. n. 204/04 Corte cost.). Per i censurati provvedimenti impeditivi, ne esclude la sussistenza, non potendosi believe that the arrangements have been adversely against the applicant by reference to legislation vincolistica area (which had argued for the Lombardy Regional Administrative Court ruling No. 1146 of 1995, then reformed by Decision No 2592 of 2000 in this section) may lead responsibility for the administration, not being a configurable culpa in re ipsa, positively excluded from our system. In any case, it is recalled as non-contractual matters in both the actor-damaged to prove the guilt of the defendant, as well as the burden of proof of the subjective element (art. 2697 cc). The Region
next disputes the suitability of the resolution of No GR VI/49343/00 of 31 marzo 2000 a ledere la pretesa del ricorrente: con essa venne approvata la variante di PRG adottata dal Comune, nell’esercizio dei poteri pianificatori di competenza.
La Regione, contesta, poi, il quantum delle richieste risarcitorie contenute nel ricorso in appello, riportandosi a quanto già eccepito nelle difese di I grado. Chiede, in via istruttoria, il rigetto della istanze testimoniali e di CTU perché inammissibili e irrilevanti e, nel merito, il rigetto del ricorso perché infondato.
5. Con il secondo ricorso, n.4537\07, rubricato al n.13\2006 presso il ruolo di questa Adunanza Plenaria, la medesima società ha proposto appello avverso la sentenza n. 217 del 2007 del TAR - intervenuta nel giudizio di ottemperanza to the decision No 385 of 1985 the TAR, based on sentence # 187/89, which is followed by Decision No 2592 Section IV of the 2000 Council of State concerning the applicant's right to obtain the issuance of building permits, albeit in simplistic terms under the new act of planning Commissioner ad acta, which took into consideration the landscape and environmental values \u200b\u200bsupervening arising from the Law 431 of 1985 - the Company alleging infringement of the rules of res judicata and the trial for his compliance, and a misuse.
The statement in ruling that the judge would be formed only on the field of urban planning and building (Judgement No 385/85) and for this provides that the Commissioner ad acta must take account of landscape plan occurred in 2001, ignores the court referred to the decision of this Section no 2592 of 2000, which had recognized the legitimacy of the Commissioner ad acta, which would be to include assessments of the landscape.
The sentence, therefore, is incorrect because the problems were so alien to the landscape matters alleged in the decision 385 dated 1985, but they could not whether the Commissioner ad acta, as evidenced by its report to the version as it makes adottatae account the decision of the Section IV n.2592, 2000. The Tar
therefore did not view the rulings have occurred gradually, attestanti l’esatto e definitivo contenuto del diritto della ricorrente ancorandolo anche alla tutela di valori paesaggistici conseguenti alla sopravvenuta normativa di settore; perciò non avrebbe dovuto affermare che il nuovo commissario ad acta era tenuto a procedere in base al nuovo piano paesistico regionale, essendosi detta fase valutativa già esaurita in precedenza, nel corso del procedimento conclusosi con la decisione n. 2592 del 2000 del Consiglio di Stato ed essendo tale profilo rientrante nella formazione c.d. progressiva del giudicato, nell’ambito temporale del giudizio di ottemperanza, al punto da non potersi rimettere continuamente in discussione la pretesa del privato fondata sul giudicato, al sopravvenire di nuove disposizioni amministrative in general, obliterating conclusive judgments. In sent. No 182, 2007 by the court (contested in the first of the appeals now before the Board), in rejecting the claim for damages, stating that their judgment No. 2592 of 2000 cited above. was derived by the company attributable to the claimant the benefit of the subject of administrative life, contradicting assertions by the contemporary ruling here appealed. The Judges would prevail, however, also occurred on legislation (AP Arg. former No. 2 of 1998, which is considered untouchable by the law occurred which has become typical cnflitto with the contents of the investigation, and the situations and relationships not intended to be renewed in time).
It is argued that, in this case, detection of the rules in dec. No 1, 1986 AP, which considers unenforceable who has a view that the changes occurring in the town planning of the service sentence upheld the appeal against the refusal of building, as well as the existence in the hands of the private entity has an interest in that pretentious 'authority to review the current PRG to that extent a view to making an exception to retrieve variant, consistent with the public interest, the provision of implementation plan repealed. A grant
all, according to the appellant, the decision under appeal does not consider that the legislation that has guided the first determination of the Commissioner ad acta, and then the preparation of landscape plan by the region in 2001 is the same, namely the Law 431 of 1985.
6. Challenged the City of Ranco, set up in court, the inadmissibility of the appeal, whose real purpose, even if directed against the decision made in the compliance, would be to challenge the actions of the Commissioner ad acta (against whose determinations was proposed stand-alone application). Raises also the unfounded allegations on the merits.
Report, then, on the continued inedificabilità area, that the Legislative Decree no. 157, 2006, by amending the Articles. 156 and 157 the CD. Code No 42, 2004, brings to life the cd. safeguard measures under Article. 1 b DL No 312/85, conv. in L. No 431/85, where, in the light of new provisions designed to protect landscaping, it requires the establishment of a new landscape plan or modifying the existing one, to take place by May 1, 2008. Therefore, at present, it is the will of the legislature to safeguard the areas covered by the construction art. 1 b cit, which is in question.
7. The Lombardy Region contends at the outset of the appeal is inadmissible, missing items, the state, for a further involvement of the court. Only after the scrutiny of del commissario ad acta si potrà, in seguito, reintervenire in sede di esame della correttezza del suo operato, il che, peraltro, sarebbe già avvenuto, avendo la società depositato presso il TAR Lombardia in data 4 gennaio 2008 un ricorso per l’esecuzione di giudicato avverso la deliberazione commissariale assunta il 30 ottobre 2007. Nel merito, l’appello sarebbe infondato, in quanto la sentenza n. 2592 del 2000 di questa Sezione è antecedente al piano paesistico e la sentenza di cui si chiede l’esecuzione (n. 385 del 1985) nulla dispone in tema di tutela paesistica dei luoghi, prendendo in considerazione solo il vincolo idrogeologico.
7. Attesi gli evidenti motivi di connessione i due ricorsi in appello indicati in epigrafe sono stati riuniti ai fini di un’unica rimessione al’A.P..
All’attenzione di questo Consesso, al fine di poter dirimere la complessiva controversia sopra illustrata, l’ordinanza prospetta le seguenti questioni:
a) l’individuazione del momento in cui può essere valutata la domanda di risarcimento dei danni per lesione di interessi legittimi nel caso di annullamento di un provvedimento discrezionale, e precisamente se tale valutazione possa essere effettuata soltanto all’esito del nuovo esercizio del potere, sicchè non potrebbe essere concesso risarcimento ove permanessero in capo all’Amministrazione spazi di discrezionalità amministrativa, ovvero a prescindere dal riesercizio del potere;
b) identification of the characters of the guilt of the public apparatus, which is necessary to grant compensation for damages resulting from injury to legitimate interests;
c) determining the relationship between judges and residual powers of the pa-building in urban and particularly if the pa may or may not reflect the changes of urban plans have arisen in the course of the proceedings;
d) determining the relationship between assessment of compliance and compensatory action is unclear whether this latter, even with regard to the quantum and the related securities, should or should not achieve the outcome of the first;
e) the existence or otherwise of the administrative jurisdiction concerning the liability of behavior of pa omission since he can argue that the failures of the integrated "behavior" of omission, breach rights subjects know the ordinary courts after the ruling of the Constitutional Court in 2004 n.204.
On the pleadings of the parties mentioned above, who have invested a total of the questions dealt with both appeals in the above, the case was retained in the decision, after discussion, public hearing on October 20, 2008.
LAW
1. The meeting of the two appeals in the epigraph, already ordered by the referral order, the connection can be maintained pending the subjective and objective tra le due cause.
2. Preliminarmente ad ogni altra questione, occorre individuare con esattezza le posizioni soggettive che muovono l’appellante nell’esercizio del suo diritto di azione, sia ai fini risarcitori che esecutivi di giudicato.
Avuto riguardo alla complessa vicenda contenziosa sopra illustrata e, anzitutto, al contenuto delle sentenze n.385\1985 della I Sezione del Tar Lombardia e n.3\1988 della Quarta Sezione di questo Consiglio, risulta che il giudicato che da esse scaturisce, e la cui proiezione in chiave di attuazione dà luogo sia alla pretesa risarcitoria che alla richiesta di ulteriore ottemperanza rispettivamente contenute negli appelli in esame, riguarda due distinte posizioni soggettive di interesse pretensivo, collegabili a ciascuno dei due provvedimenti oggetto del giudicato di annullamento in questione.
Esse sono, cioè, collegabili, rispettivamente, la prima, al diniego di licenza\concessione edilizia relativo ad istanze avanzate in base alle previsioni edificatorie di una convenzione di lottizzazione, e, la seconda, alla successiva adozione di una variante al P.R.G. comunale che aveva inciso in senso abrogativo sulla convenzione. Ci si trova di fronte, dunque, a due successive serie procedimentali che configurano, in ragione dei distinti poteri pubblicistici esercitati, nel primo caso edilizio in senso stretto, nel secondo pianificatorio urbanistico, e delle distinte normative che regolano le rispettive fattispecie, due interessi pretensivi formalmente diversi, insurgents and one after the other.
2.1. Such interest pretense, however, are, on the one hand, with evidence, procedural and temporally related to the undoubted impact of the seniority of the Convention reflects the exercise of power following PLANNING, on the other, then have the basis for the aspiration the same good life, namely the realization of jus aedificandi relatively the same area, first by the Convention and then the planning instrument.
What is important for compensatory damages, as we shall see, is that the two interests pretense involved, formally separated in relation to the reported diversity of the powers impingono sulla posizione del privato, una volta proiettati sul piano degli interessi sostanziali, e quindi correlati ai presupposti della tutela risarcitoria, convergono verso un unico bene della vita e, di riflesso, verso una configurazione del danno (lesione al bene della vita) unificabile e non duplicabile.
3. In relazione all’esame dell’appello n.12 del 2008, va anzitutto esaminata la questione della risarcibilità del primo interesse pretensivo, che lo stesso appellante definisce attinente al “profilo edilizio”, nascente dalla convenzione di lottizzazione conclusa con il Comune resistente il 9 giugno 1971, e che attiene alla realizzazione degli interventi edilizi da essa previsti, condizionata, com’è connaturato discipline on the subject, the next issue of the building permit. This pretentious
interest has been the basis of a double request for interim buildings by the permissive society that were found negative by the City with two acts of 1975 and 1980, both subject to cancellation.
3.1. In particular, first examining the question of the admissibility of a claim for redress in respect of that claim, it should be noted that we are faced with a situation like this:
a) the council had denied building permits in terms of inedificabilità areas of tax, determination solely related to the insistence of a geological constraint, otherwise significant, compared with the existing framework upon conclusion of the Convention, following the advent of a regional legislative framework in this area;
b) that the City had argued with the two refusals (the 1975 and 1980) canceled by Tar in 1979 and 1985, respectively, whose illegality had been considered: first because it was not considered sufficient to call the regional legislation on the subject of persistent geological constraint on the area in question, without specifying the different assumptions used therein, for believing the inedificabilità, may, in addition, the applicant must first obtain a (new) clearance issued by the hydrogeological jurisdiction (other than the municipality), then because (according to cancel), however, the hydrological management of the bond it was for the executive bodies of the region, according to the same rules and not the Mayor, with responsibility to operate only the assessment planning and building .
3.2. Given this situation, then detect two concurrent circumstances and meaningful importance.
a) The first is that the City had had the opportunity to give twice the reasons and obstacles to the release of the concessions he had never identified reasons relating to the public housing, or sanitation, the protection of which belonged to it in that home, so that should be considered that, on the basis of these journalistic reasons, covered under typical municipal powers to the granting of concessions (also dependent on previously existing development agreement), there were several impediments to the granting of concessions.
b) The second is that, in 1981, when it approved the version of the plan adopted by the City Council in 1977, the Region, which was annulled by resolution only for lack of motivation, which lies in the judgments which the judge is compliance, was recognized at the modification of technical standards for implementing the variant thereof, a certain level of building rights of these areas, compatible, and then, with the new scope of the bond set by the geological discipline occurred Regional.
3.3. For the purpose we are concerned here, the premise now turning then you are entitled to believe the good life in relation to the first interest here pretentious resolutions, accepting the first plea in the appeal No. 12 \\ 2008.
This is not so much in terms of a travesty that would be incurred by the chief justice, in that, in relation to failure to take account of the first cancellation, can not be said to be "verified that assumption (reiteration of the exercise of power, again canceled) that the sentence allowable claims to believe the claim for damages. " The Tar
, in fact, has only said, recalling a shared decision by the Council of State (VI, September 4 2002, n.4435), that where a refusal is canceled for any defects in any case, as in the case, allow riesercizio of power, if the negative act is repeated, for reasons other than the above, the negative decision rule occurred, state, the existence of a compensable injury resulting from the first measure, subject to the verification of the details of the damage in case of cancellation of the second court also measure (which is essentially the case here today, albeit with nuances related to the fact that the City has stated, with two subsequent rulings, various aspects militate against the bond hydro).
Rather, the Tar erred in identifying the applicants, the second cancellation, just the details of damages in relation to the overall context and consists of cancellations resulting from the allegations contained in the considered decision of the Fourth Section # 3 \\ 1988, as previously found here.
3.4. In the case in point, in fact, the positive results of attribuibilità the good of life and substantial interest and compensable pretentious type "construction," reviewed here, are, individually, compared with a mere automatism arising from the existence of a aside from taking the first and the new exercise of administrative power, precisely because of the confluence of circumstances, judicially established, reported above, namely the evidence that the granting of concessions but did not oppose the unexpected conduct in terms of geological constraints and, instead, sure it is compatible with "a certain building rights," resulting from the Act approval the urban variant of 1981, which highlighted the same decision of the Fourth Section No. 3 of 1988 (see, p.12).
E 'also, arising from these findings that, given the incidence peaceful now irretrattabilmente occurred, the same discipline on regional hydrogeology, and already in relation to the time the application for issuance of building permits was advanced, attributable to the this good life could not be said unconditionally and exactly corresponding to the size of the faculty edificatoria provided by the development agreement, because on the original forecast covenantal hung several reasons limiting perfectly legitimate, since they corresponded to the same rules and the same public interests that govern matter .
In particular, the hydrogeological bond, but is responsible for managing the competence of different organs by the Mayor and identified by the regional law, now had an impact today, as jus superveniens on the structure built under the agreement, as evidenced by the passage of usage Appeal Judgement, (IV, No. 3 \\ 1988) that, by confirming l’annullamento del secondo diniego di concessione edilizia, precisa che il Sindaco non dovesse “sic et simpliciter ignorare il vincolo” idrogeologico, ma, più esattamente, “tener conto della possibilità che l’autorità competente in materia forestale adottasse provvedimenti tali da rendere compatibile col vincolo una limitata edificazione del terreno…”
La stessa sentenza, poi, precisa che “con determinazione non contestata dal Comune”, la Regione aveva “introdotto una modifica d’ufficio della variante al P.R.G adottato dal Comune, in forza della quale, la Giunta regionale, riassumente in sé tutti gli interessi pubblici affidati alla regione stessa”, had held that Article 40 of lrn51 1975, was not in the way of "a certain building rights" of the land, contradicting the assumption of the municipality, and without fail on the absoluteness of the bond ex art.40.
3.5. So, in the heads of all the cancellation of the second denial is given to obtain not only the foreclosure to a third refusal "total" of building rights, based on geological constraints, not only attributable to the good of life, but also in those circumstances, the measure of that attributable to, coincident with the (minor) variant recognized in the cubic building in the regional approval, because of the prevalence, sull'assetto raised in urban development agreement, the public interests being achieved by the unexpected discipline in terms of regional geological constraint.
This aspect is the same whether the same sentence # 3 \\ 1988 and before the 385 dated \\ 1985 of First Instance, had also cleared the same act of approval of the variant, in particular since this cancellation did not touch the point of recognition of a certain level of construction compatible with the constraint, but rather reinforced by other means configurability, assuming, however, in the variant, both the City Council that the region had "knowingly and intentionally" groped to recover all or in part, estimates of the development plan.
3.6. It should be stressed here that, with the recognition of the substantial attributable, in such lesser extent, the good life, (which constitutes, in terms of interest pretense, one of the prerequisites for a useful experiment for claims right AP # 7 \\ 2005), at the time when judged in favor of such a finding, however, was not challenged in an assessment of compliance tended to implementation "specific performance" of that part of the judicial dictum.
This is because, first, the development agreement had been abrogated by the advent of a discipline in urban planning / municipal. For the same annullata, infatti, la caducazione di quest’ultima non poteva comportare la reviviscenza della stessa convenzione, poiché il momento del passaggio in giudicato della sentenza d’appello n.3\1988 era ben successivo allo spirare del termine di efficacia della convenzione stessa.
Questa, infatti, stipulata il 9 giugno 1971, era in quel momento (e, invero, anche al momento della pronuncia di annullamento di primo grado, nel 1985) già inoperante per lo spirare del suo termine decennale di efficacia. Va in proposito richiamata la consolidata giurisprudenza di questo Consesso per cui le lottizzazioni convenzionate non possono avere l’efficacia di condizionare a tempo indeterminato la pianificazione urbanistica futura, dovendosi ritenere vigente un termine di loro durata massima pari a 10 anni, mutuando il termine di cui all’art.16, comma 5, della legge urbanistica n.1150 del 1942, applicabile al tempo dei fatti, concernente l’analoga figura dei piani particolareggiati (cfr. IV Sezione, 16 marzo 1999, n.286).
3.7. Dunque, l’annullamento della variante di P.R.G. non poteva più determinare alcun effetto utile sul piano dell’attualità di una pretesa al rilascio di concessioni edificatorie fondata sulla convenzione edilizia, stemperandosi quest’ultima, nell’ambito del giudicato, nella limitata rilevanza di una previgente disciplina di favore di cui, in base agli atti di adozione e di approvazione della variante, doveva comunque tenersi account, but, therefore, likely to establish a claim other than the applicant, namely that a proper consideration of its earlier position in the exercise of the power of urban planning (without which, indeed, had received judicial annulment from which comes the judge that you acted in place of compliance).
3.8. Aside for the moment, the latter aspect, it is then that the judge in question, in so far as concerned the "question of construction," and then the interest pretentious rising directly from the development agreement, could not be implemented in the compliance, having come under the assumption that the conventional instrument placed at the basis of original application for issuing building licenses.
Translating the situation in terms of remedies for the protection available to the applicant, this means that the root was prevented, compared to the configuration pertaining to the final good, the instrument of reintegration in a specific form to be carried out within the assessment of compliance, and this is so true that no instances based on the Convention and even less on the same grounds for annulment of the union canceled two denials, was never in concrete proposal before the enforcement court, having a request for protection at that place now pinned exclusively intake ad un contenuto favorevole della strumentazione urbanistica da emanare, segnatamente in sede di riesercizio, sotto la guida del giudice dell’esecuzione, del relativo potere urbanistico (già cassato con il giudicato qui in rilievo).
3.9. In tale situazione, e tralasciando problemi di astratta configurazione della prescrizione, non posti dalle parti in causa, alla ricorrente non residuava che il rimedio risarcitorio.
Al riguardo non sussiste, in parte qua, per una domanda cioè che, nell’interpretazione qui prospettata assume una sua autonomia, l’inammissibilità eccepita dalle parti resistenti, posto che tale interesse pretensivo non è stato coinvolto nel giudizio di ottemperanza e quindi non si pone alcun problema preliminary rulings of any of that, in this view, concluding the work entrusted to the commissioner to substitute acta, lead to the update pertaining to the good of life and to set up an interference between an action for damages and assessment of compliance. In contrast, the concrete
Recoverability of an interest pretentious whose ultimate sacrifice is due to the causal mechanism determined by two opposite unlawful refusal by the municipality, and the consequent delay in providing a positive, which was succeeded (in addition to lrn51 \\ 1975, in terms of geological constraint), the discipline of landscape where the law August 8, 1985, n.431, during the proceedings, con la connessa esigenza di adeguamento della disciplina urbanistica e, quindi, con la inattuabilità dell’originaria convenzione di lottizzazione, che, in ogni modo, nelle stesse more del giudizio, era divenuta inefficace.
3.10. La sopravvenuta cessazione di efficacia della convenzione ed anche la disciplina paesaggistica sopravvenuta, infatti, non possono essere considerate assorbenti della lesività concretamente assunta dai dinieghi in parola, posto che la tutela di annullamento accordata dalle sentenze favorevoli alla ricorrente, sullo specifico punto, implicava un retroazione degli effetti ampliativi della sua sfera sopra segnalati e quindi una valenza concreta ed effettiva del riconoscimento del bene della vita oggetto dell’interesse pretentious operated there.
The reported circumstances are etiologically attributable to the overall behavior provvedimentale the municipal administration, which had not allowed a prompt and legitimate definition of the position of the appellant's claim, prior to the replacement of the reported facts of the particular edition of the preventative power of granting the license, and therefore the protection in the execution phase, but not attributable to the foreclosure, then, the good life, and therefore dell'esperibilità of compensation claims
3.11. Found the causative link between measures of denial and lapse of infringement of pretentious now risen to a substantial nature in the sense the subtraction of the good life found to lie, just as required by the referral order, it remains to establish the subjective element of guilt, denied by the TAR, with the sentence appeal, but in hindsight, with arguments not related to the head of claim and then the partial case here considered.
These arguments are all referred to the regional decree of 1993 which had denied approval of the variation in the compliance PRG adopted by the Commissioner ad acta. No need to answer for the moment, the question in the abstract configuration of the element of fault on the part of administration in the offense caused by tort measure to be unlawful, since the decision of the TAR has not dealt with this point having previously ruled out the pretentious Recoverability of interest here considered in terms of non-recognition of compensable damage.
3.12. Even detects whether, compared with a previous development agreement, the responsibility of the administration for failing to issue the grant is to be attributed rather to the extraquiliana responsibility, type of "contract". On that issue, suffice it to say that the sentence cited by the appellant (Cass Civ, Sec. I, January 10, 2003, No 157) is a previous block, rather than having to reiterate that this administrative court has no reason di discostarsi dalla configurazione in termini di mero interesse legittimo della pretesa al rilascio dei titoli edilizi scaturente da una convenzione di lottizzazione.
3.13. Quanto all’elemento della colpa, non può negarsene il ricorrere laddove emerga, come nel caso, la duplice ed insistita erroneità della posizione assunta nei dinieghi annullati dal Comune, che ben avrebbe potuto essere evitata ove avesse diligentemente verificato la propria competenza a disporre in materia di vincolo idrogeologico, nonché l’effettiva portata di quest’ultimo circa la compatibilità con una residua edificabilità, solo limitata da una disciplina regionale che conseguiva, comunque, ad una di livello statale, che mai avevano coinvolto, until then, the City Council in its duties.
Emerge well as we do not pose major problems in the administration set up the guilt in this case, in light of additional allegations made by the appellant in relation to the "dictum" of the contested decision, and how not to be important in behavior "omissions" without further qualifications, with related problems of jurisdiction, given the nature of provvedimentale tortious acts arising from the same pa
4. To the point now decided, and except as will be explained later, the case should therefore be deferred to Section Four, so decide in order to provide compensation to the quantum, by examining the attributable and the merits, in terms of evidence, the individual items of damage alleged by the appellant, which on the understanding that the measure of good life (jus aedificandi) belonging to the same appellant, to be identified, in terms of emergencies derivable from the findings of the trial judged, to the extent recognized by the (canceled) resolution approving the PRG variant # 3 \\ 3970 of 31 March 1981 and that the damage seen here is related to the lesion completely suppressive of the good life, without involving issues of harm " by delay. "
5. As further interest pretentious "urban" system, being only indirectly in the development agreement, that is stated in the interest pretentious held here in relief - for which, once undertaken by the determination to provide for the protection of the public through a new tool in urban variant of the PRG, the exercise of its power was to be so as to take account of the previous position, in relation to that same area, had been given to the applicant, it should be stressed beforehand that this position had a consistency more pretentious title and eased rules differing from those previously considered.
The convention, in fact, in the exercise of power following PLANNING, degrades the act, the source of discipline edificatoria, in fact, even if legally relevant in the balancing of public and private interests threatened the government, municipal and regional powers involved in the ownership of the same.
5.1. It should also be considered as another key aspect that is related to what has been said in this paper. Noting
right now, and except as will be explained below, the court of first instance has established, in a ruling not subject to cross-appeal, and therefore no longer be disputed in this appeal, attributable to the good of life following the decision taken in 2000 n.2592 of compliance by the Fourth Chamber (denying the addebitabilità damages for failure to act on the subjective element of guilt), the legitimate interest connected pretentious, adequate consideration of its position in the power of planning, although different than the original interest pretentious first examined, (connected to the validity of the Convention development agreement), has, as has been said, relates to the same underlying asset life by it, ie, in terms of the interests involved the recognition of a certain amount of building rights on the same area.
The latter is, in fact, the final aspiration that all subsequent proceedings tended to achieve compliance and this is undoubtedly the source of interest to resort constantly relied upon in that forum.
But if so, what the abstract proposability for claims from the second interest pretentious, recognition of the merits of the first claim, to the extent indicated above, with reference to the existing note pretentious interest arising from the Convention, means that, drawing recognition that the identical right of life, it helps to reduce the substantial basis of reference of the Recoverability of the same second interest pretentious.
5.2. In other words, for the protection of the pretense proceeds only by the positive assessment attributable to the good of life, and it has already been accomplished to some extent and made the subject of compensation claims, it follows that, for compensation purposes more important here, a finding attributable to the well of the final must be taken, in fact, account for as recognized with regard to the same well, in reference to pre-existing interest in this pretentious, illogical, and otherwise reaching a inconfigurabile duplication of compensatory remedies in terms of material goods in pursuance of which are intended, ultimately, interest pretense here considered.
In practice, therefore, in the situation of interconnection pretense of interest reported here, the action compensation for the second of which could in the abstract only take that part of the property (jus aedificandi, that allowed airspace area), which, in theory, following the opinion of compliance, the Appellant should be up in excess of the above measure provided in respect of the aforesaid position of interest arising from the Convention pretentious.
5.3. With regard to the interests pretentious hours in relief, the court of first instance, he at first said that it was not, in principle, feasible action for damages in relation to judged the 1985 and 1988, as This was based on substantial grounds of lack of PLANNING, also with reference to regional approval, which had not taken into account, as we have said, the previous development agreement and the position of its benefits to the appellant.
This is because the type of cancellation so silent on the proposed attributable to the good of life associated with the pretentious relied on res judicata effect of the peremptory is summed up in mere riesercizio of power, of course amended the habit of failure to take account of the fact formed by previous relevant development agreement.
The initial success of the Tar is also related to the period prior to which he had about the decision of appeal within the compliance n.2592 in 2000 (then 1993), whose decision led to a break, and substantial time, the question of interest here Recoverability in relief.
On this first part of the Tar claims must be agreed, not without note that the slope of the compliance process in conjunction with this appeal (at least with respect to another meeting called here), does not render inadmissible the action for damages directly here concerned that focuses directly on the achievability of the measures of edificatoria permissive, even excluded, in theory, even the objects of acts planners iniziale del presente giudizio (perché subentrati dopo la sua introduzione, o successivi alla sua definizione in primo grado), ovvero dall’intervenire delle misure di salvaguardia ex artt. 24 e 25 del D.lgs.n.157 del 2006,(che impedirebbero il rilascio di nuove concessioni fino all’approvazione dei nuovi o variati piani paesaggistici da parte delle Regioni); l’ulteriore pretesa risarcitoria qui in rilievo si connette piuttosto alla risarcibilità dei danni “da ritardo” conseguente all’illegittimo esercizio dell’attività pianificatoria.
5.4. In proposito va infatti rilevato che l’appellata sentenza n.182 del 2007, dopo l’iniziale affermazione di principio sopra riportata, riferita al periodo intercorrente tra il giudicato del 1985-1988 ed il 1993, oggetto dell’appello ora in esame, ha statuito, (sia pure con una certa contraddizione con la sentenza n.217 del 2007, contraddizione invocata a proprio favore dall’appellante), che, la decisione della Quarta n.2592 del 2000, -laddove aveva ritenuto l’illegittimità del rifiuto regionale, assunto nel 1993, di approvazione della delibera del commissario ad acta del 1991, basato sull’applicazione della misura soprassessoria di cui all’art.1 ter della legge 8 agosto 1985, n.431-, avesse determinato la consistenza sostanziale della posizione della società ricorrente.
Va inoltre precisato che l’interesse pretensivo connesso alla corretta view of its position in the power of planning (and its riesercizio), could in theory still find a partial relief by way of reinstatement in a specific form possible, in the absence of spontaneous adaptation administration unsuccessful, as part of assessment of compliance is still pending, in relation to each other litigation relating to events subsequent to those here considered as a whole.
In any case, the compensation purposes we are concerned here, the alleged policy of "urban" now under consideration, and following the reported conclusive ruling of the court of first instance based on the importance of the decision n.2592 of 2000, therefore, from First, connects attributable to the recognition of the good life, to some extent, on the other hand, when verified this assumption the correlation, hypothetically, in relation to quantum, the damage caused by delay as possible even if you reinstatement in the specific form would survive only a residual "weak point", connected to the failure to obtain, in times of ordinary definition of the procedure (here again, as the court first held in 1993), the good life.
5.5. Therefore, the same configurability of delay damages can not be commensurate, in his terms of relevance required time, the first condition pertaining to the good of the established life, so that a fortiori the ruling of the court which first set in 1993 when the allocation of the assets, and discount the damage caused by delay renders irrelevant the exceptions of inadmissibility of the claim for damages and appeal, related to the slope Judgement of compliance and the events in it occurred even after the present proceedings.
The particular case of the case, then, offers an exception resulting from the findings of that court is conclusive here you must take into account the principle that the damage "to delay", in the case of pretense interests, can only be appreciated and compensated as a result of the recognition attributable to the good life that has been enshrined in the positive issue in the proceedings of compliance, the positive measure.
5.6. However, even signing the statement of the contested decision concerning the attributable to the good of life since 1993 (and only for the damage caused by delay), the decision at first instance is however confirmed the allegation of absence of fault the regional administration in respect of its disapproval of the variant commissioner.
the causative sequence of acts, in case of damage caused by delay, it is clear that the act should focus on which is regional in question (DGR July 16, 1993, n.39033), having this, in the circumstances that emerged in the first instance, been the sole obstacle to the actualization of the essential and substantial claim and, therefore, on the one hand, returning in a specific form on the other hand, the timely satisfattività this in reference to When explanation of the phase provvedimentale however due to the Region.
5.7. But such a negative determination, in fact, can not be considered guilty of mail, having regard to the concept of guilt, as reported to the administration apparatus, and not to the individual person acting on behalf of it, poses in a completely tort liability arising under the special enactment of unlawful acts.
On the issue of guilt of the pa as a constitutive element of its tort liability, with reference to more recent statements, incorporating the previous judicial experience in the field, it reported a first "line of cases" referred to in private damaged by an administrative unlawful is not required a special effort to demonstrate the evidence of guilt pa, being sufficient for this purpose rely on the illegality of the measure as an index of presumptive guilt, or attach additional factors, such as to show that it was a mistake not excusable; while it is shown that the administration has trattato di un errore scusabile.
A tale orientamento si giustappone un enunciato di principio che, riassuntivamente rispetto alle posizioni via via elaborate, è di maggior rilievo e frequenza, secondo il quale l’imputazione della responsabilità nei confronti della p.a. non può avvenire sulla base del mero dato obiettivo della illegittimità dell’azione amministrativa, giacchè ciò si risolverebbe in un’inammissibile presunzione di colpa, ma comporta, invece, l’accertamento in concreto della colpa dell’amministrazione, che è configurabile quando l’esecuzione dell’atto illegittimo sia avvenuta in violazione delle regole proprie dell’azione amministrativa, desumibili sia point from constitutional principles of impartiality and good performance, both by the rules of ordinary law in point of speed, efficiency, effectiveness and transparency, both by general principles of, in point of reasonableness, proportionality and appropriateness. (V, 8 September 2008, n.4242).
5.8. Now, the decision under appeal with the statements of principle which it prefixed to the resolution of the matter, has finally acceded to the second here reported conceptions of guilt, so that it is not necessary here to resolve the question of the abstract concept of fault attributable to the pa , taking into account the fact that the same allegations made by the Act of appeal to contest the finding unfavorable made at first instance always move in the wake of the second conception of guilt just now resumed and, therefore, incumbent on the level of evidentiary inferences about who is acting as a compensation.
5.9. These allegations, however, are not sufficient to overcome as the Tar shareability said about the defect, specifically, the element of fault.
The region has in fact applied the principle of temporary dell'inedificabilità areas previously identified under the law n.431 el 1985, as provided by Article 1 ter sl, until the approval of landscape plans, so influential on 'approvabilità of planning instruments that the building had expected for those areas (in which fell peacefully to the aera issue). The illegality
\\ unenforceability of such refusal "soprassessorio" in relation to the obligation of ensuring compliance with court has been regarded by the 2000 decision of the Fourth Chamber on the ground that the region as a necessary part of the main proceedings and, therefore, Judgement in the execution phase, was also subject to the obligations arising from the final and binding nature of what it had established in adherence to the Commissioner ad acta, if anything, having the obligation to promote an accident, to assert his reasons inherent in 'application of discipline prevailing landscape within the same trial run.
5.9. However, in the present case, the region was drawn to the obligation to execute, in a manner different from the position that it considered to assume, based on the sophisticated interpretative elaboration of the situation resulting from the review of compliance, both in terms of procedural substantive decision made by the 2000 n.2592.
This decision held that it was possible that the region possessed a residual independent power to review the choices of the Commissioner ad acta, going the opposite opinion to the view from the same Tar with the decision at first instance n.1146 1995, which had complied with what was held in previous execution sentence no.187 \\ 1990, does not appeal, which had placed the running only by the Municipality, the same decision in 2000, in highlighting the ruling of the court of first instance, noted that the original decision of 1990, no.187, the first in the compliance, did not contain "that a partial order of execution."
Overcoming this aspect is the result of an interpretation of the facts and legal procedural past, which led the court of appeal on the edge of highly complex principles, intended to overcome the same problems caused by previous rulings of compliance of First Instance, with respect to which the region had no reason to doubt the correctness of the position.
5.10. Substantive standpoint, then, the region was held in a sense that because of the peremptory character of the period of adoption of landscape plans and the resulting Continuing beyond this date soprassessori the powers of the regions, corresponded to a widespread practice that was followed by an equal regions , uniformly invested with similar problems, as the Court recognized not only about the peremptory character of the word in question (and this is recognized the same decision in 2000), but also the spread of the application of Articles. 1 a and 1 b of the law n.431 of 1985 by several regions.
The submission to a regional "order of execution implicitly, the superabilità (considered by the decision n.2592 of 2000) of the peremptory character of the period of adoption of the landscape plans for soprassessori, depending on the importance of spending considerable time in relation to a "situation which has received the final conformation of res judicata ", the requirement (except in accordance with the judgments of first instance) that the region itself must necessarily speak in passing in trial of compliance, to assert its objections to the forecasts provided by the commissioner of building rights according to the discipline of landscape, the same occurrence of this in a court expressly recognized as a stranger to matters of nature landscape, are all circumstances that preclude the unlawfulness of the negative determination in 1993 was attributable to a faulty interpretation activities put in place by that region.
The latter, also by applying the rules of good governance implied by the principles of administrative actions outlined above, would not normally be expected from the appellate court found unlawful execution, having referred to the discipline in a Landscape ' interpretation of "normal" and widespread, the limits of legality, respect to the matters raised in the review of compliance, could not, therefore, be detected an autonomous part of the effort normally required to exercise due care in carrying out its administrative apparatus journalistic functions. The particular case examined
hours, then it shows that the act detrimental to the abstract, set up by the Region in 1993, was suffering from an unlawful objective due to excusable error, and this is also apparent from the large discharge the burden of allegation made the defense of the region with the memories produced in this case.
5.11. Excluding the item guilty now dealt with, the result is an absorbing investigation which allows you to reject the claim for damages to that extent, and thus also to speak corresponding partial rejection of the appeal, irrespective of the actual attributable to the good of life, confirming on this point, the decision at first instance.
6. It should therefore be considered the following appeal from the decision n.217 of 2007.
With it, the Court of First Instance held that the regional landscape plan approval occurred, with resolution GR n.VII \\ 197, March 6, 2001, required it to review the determinations of the same Commissioner ad acta which centered on the recognition of attributable to the good of life (a certain percentage of building rights conferred by this variant) and the assumption of substantial character on the part of the interest at issue here pretentious.
This is because, for the Tar, the jus aedificandi awarded by the court here in relief (in particular by the decision of the commissioner adopted by ACTA January 31, 1991), focusing only on the consideration of town planning and building regulations, could not withdraw the before the occurrence of the legal landscape plan as per the resolution of regional n.VII \\ 197, 6 March 2001, with the result that it was necessary to appoint a new Commissioner ad acta for you to proceed, according to what is already developed, approved the PRG variant compared to the area already covered by the development plan, taking into account the landscape plan have occurred.
6.1. The appeal now under consideration, however, focuses on a premise that is shared only in the abstract that the court of compliance resulting from more than once that decision n.2592 Section IV of the 2000 reform of decision-made in the Tar n.1146 1995, which had stated in the compliance, the legality of a refusal to approve the 1993 regional variant of the "adopted" by the Commissioner to be appointed by the same Tar-acta, integrating the original judged of 1985-1988, setting up a case of res judicata, in fact, "a progressive" such as to influence and to gradually reduce the scope of discretion in the remake of the power PLANNING.
At that time, The Fourth Chamber had stated that the commissioner shall act of 1991 took into consideration the basic principles of landscape protection under the law n.431 of 1985 and that this evaluation produced a binding effect, both for the city that for the region, parts needed of the main proceedings and the executive, both replaced in their respective areas of competence, even as the reflections on the case of execution, it had become discipline of the Act of 1985 (constituting jus superveniens impingente implementation because prior to notification of sentence of Section IV of 1988 which led to the court decision becomes final passage of First Instance 1985).
6.2. Compared to that ruling, for the appellant, must be regarded as part of the temporal slope of the proceedings of compliance, could not be called continuously disputed the claim by the individual, on grounds of res judicata also configured by the progressive integration arising from rulings of the court of compliance cognitor by reason of the occurrence of new administrative arrangements in general. Not only does it undermine the certainty of the position of the recipient in favor of res judicata, never allow to identify the exact content of the obligation of performance.
The Judges should be considered as intangible, with regard to the establishment of the right building, in homage to principio per cui la legge sopravvenuta è irrilevante sulle situazioni giuridiche istantanee definite dal giudicato (A.P. n.2 dell’11 maggio 1998).
6.3. Nella specie non è necessario affrontare la complessa tematica della rilevanza dello jus superveniens con riferimento alla valenza dei successivi strumenti paesaggistici, atteso che il primo de quo è stato approvato prima che la sentenza che ha riconosciuto il titolo alla edificazione fosse passata in giudicato. Detta disciplina paesaggistica era certamente opponibile all’originaria ricorrente, nell’ambito del giudizio di ottemperanza successivamente riattivato, atteso che la decisione n.2592 del 2000 ha assunto valore di giudicato, divenendo cioè “definitiva” and "resistant" to the jus superveniens, only following the decision of SS.UU. the Supreme Court April 19, 2002, n.5730, which dismissed the appeal for lack of jurisdiction filed against the decision of the Fourth.
It follows that the Tar properly took into account the landscape plan have occurred, for the purposes of enforcement officers borne by the person re-appointed Commissioner ad acta, so now discussed the appeal to be considered unfounded.
7. In conclusion it must be partly accepted the appeal No. 12 \\ 1998, with reference to the Fourth Section to the court rulings related to the quantum compensation, the terms pertaining to the good of life found here, and the appeal must be dismissed No. 13 \\ 1998, as just stated.
The extreme complexity of the issues of fact and of law brought to the attention of the Board, certainly indicative of the uncertainty of purpose, and mutual some heads of the parties must involve the full compensation of court costs between them even for the first degree in connection with the acceptance part of the appeal No. 12 \\ 2008 (and the consequent partial reform of the decision at first instance with its appeal), subject to determination as to the additional costs or expenses payable to the Fourth Section for the continuation phase of the proceedings before it.
2. Preliminarmente ad ogni altra questione, occorre individuare con esattezza le posizioni soggettive che muovono l’appellante nell’esercizio del suo diritto di azione, sia ai fini risarcitori che esecutivi di giudicato.
Avuto riguardo alla complessa vicenda contenziosa sopra illustrata e, anzitutto, al contenuto delle sentenze n.385\1985 della I Sezione del Tar Lombardia e n.3\1988 della Quarta Sezione di questo Consiglio, risulta che il giudicato che da esse scaturisce, e la cui proiezione in chiave di attuazione dà luogo sia alla pretesa risarcitoria che alla richiesta di ulteriore ottemperanza rispettivamente contenute negli appelli in esame, riguarda due distinte posizioni soggettive di interesse pretensivo, collegabili a ciascuno dei due provvedimenti oggetto del giudicato di annullamento in questione.
Esse sono, cioè, collegabili, rispettivamente, la prima, al diniego di licenza\concessione edilizia relativo ad istanze avanzate in base alle previsioni edificatorie di una convenzione di lottizzazione, e, la seconda, alla successiva adozione di una variante al P.R.G. comunale che aveva inciso in senso abrogativo sulla convenzione. Ci si trova di fronte, dunque, a due successive serie procedimentali che configurano, in ragione dei distinti poteri pubblicistici esercitati, nel primo caso edilizio in senso stretto, nel secondo pianificatorio urbanistico, e delle distinte normative che regolano le rispettive fattispecie, due interessi pretensivi formalmente diversi, insurgents and one after the other.
2.1. Such interest pretense, however, are, on the one hand, with evidence, procedural and temporally related to the undoubted impact of the seniority of the Convention reflects the exercise of power following PLANNING, on the other, then have the basis for the aspiration the same good life, namely the realization of jus aedificandi relatively the same area, first by the Convention and then the planning instrument.
What is important for compensatory damages, as we shall see, is that the two interests pretense involved, formally separated in relation to the reported diversity of the powers impingono sulla posizione del privato, una volta proiettati sul piano degli interessi sostanziali, e quindi correlati ai presupposti della tutela risarcitoria, convergono verso un unico bene della vita e, di riflesso, verso una configurazione del danno (lesione al bene della vita) unificabile e non duplicabile.
3. In relazione all’esame dell’appello n.12 del 2008, va anzitutto esaminata la questione della risarcibilità del primo interesse pretensivo, che lo stesso appellante definisce attinente al “profilo edilizio”, nascente dalla convenzione di lottizzazione conclusa con il Comune resistente il 9 giugno 1971, e che attiene alla realizzazione degli interventi edilizi da essa previsti, condizionata, com’è connaturato discipline on the subject, the next issue of the building permit. This pretentious
interest has been the basis of a double request for interim buildings by the permissive society that were found negative by the City with two acts of 1975 and 1980, both subject to cancellation.
3.1. In particular, first examining the question of the admissibility of a claim for redress in respect of that claim, it should be noted that we are faced with a situation like this:
a) the council had denied building permits in terms of inedificabilità areas of tax, determination solely related to the insistence of a geological constraint, otherwise significant, compared with the existing framework upon conclusion of the Convention, following the advent of a regional legislative framework in this area;
b) that the City had argued with the two refusals (the 1975 and 1980) canceled by Tar in 1979 and 1985, respectively, whose illegality had been considered: first because it was not considered sufficient to call the regional legislation on the subject of persistent geological constraint on the area in question, without specifying the different assumptions used therein, for believing the inedificabilità, may, in addition, the applicant must first obtain a (new) clearance issued by the hydrogeological jurisdiction (other than the municipality), then because (according to cancel), however, the hydrological management of the bond it was for the executive bodies of the region, according to the same rules and not the Mayor, with responsibility to operate only the assessment planning and building .
3.2. Given this situation, then detect two concurrent circumstances and meaningful importance.
a) The first is that the City had had the opportunity to give twice the reasons and obstacles to the release of the concessions he had never identified reasons relating to the public housing, or sanitation, the protection of which belonged to it in that home, so that should be considered that, on the basis of these journalistic reasons, covered under typical municipal powers to the granting of concessions (also dependent on previously existing development agreement), there were several impediments to the granting of concessions.
b) The second is that, in 1981, when it approved the version of the plan adopted by the City Council in 1977, the Region, which was annulled by resolution only for lack of motivation, which lies in the judgments which the judge is compliance, was recognized at the modification of technical standards for implementing the variant thereof, a certain level of building rights of these areas, compatible, and then, with the new scope of the bond set by the geological discipline occurred Regional.
3.3. For the purpose we are concerned here, the premise now turning then you are entitled to believe the good life in relation to the first interest here pretentious resolutions, accepting the first plea in the appeal No. 12 \\ 2008.
This is not so much in terms of a travesty that would be incurred by the chief justice, in that, in relation to failure to take account of the first cancellation, can not be said to be "verified that assumption (reiteration of the exercise of power, again canceled) that the sentence allowable claims to believe the claim for damages. " The Tar
, in fact, has only said, recalling a shared decision by the Council of State (VI, September 4 2002, n.4435), that where a refusal is canceled for any defects in any case, as in the case, allow riesercizio of power, if the negative act is repeated, for reasons other than the above, the negative decision rule occurred, state, the existence of a compensable injury resulting from the first measure, subject to the verification of the details of the damage in case of cancellation of the second court also measure (which is essentially the case here today, albeit with nuances related to the fact that the City has stated, with two subsequent rulings, various aspects militate against the bond hydro).
Rather, the Tar erred in identifying the applicants, the second cancellation, just the details of damages in relation to the overall context and consists of cancellations resulting from the allegations contained in the considered decision of the Fourth Section # 3 \\ 1988, as previously found here.
3.4. In the case in point, in fact, the positive results of attribuibilità the good of life and substantial interest and compensable pretentious type "construction," reviewed here, are, individually, compared with a mere automatism arising from the existence of a aside from taking the first and the new exercise of administrative power, precisely because of the confluence of circumstances, judicially established, reported above, namely the evidence that the granting of concessions but did not oppose the unexpected conduct in terms of geological constraints and, instead, sure it is compatible with "a certain building rights," resulting from the Act approval the urban variant of 1981, which highlighted the same decision of the Fourth Section No. 3 of 1988 (see, p.12).
E 'also, arising from these findings that, given the incidence peaceful now irretrattabilmente occurred, the same discipline on regional hydrogeology, and already in relation to the time the application for issuance of building permits was advanced, attributable to the this good life could not be said unconditionally and exactly corresponding to the size of the faculty edificatoria provided by the development agreement, because on the original forecast covenantal hung several reasons limiting perfectly legitimate, since they corresponded to the same rules and the same public interests that govern matter .
In particular, the hydrogeological bond, but is responsible for managing the competence of different organs by the Mayor and identified by the regional law, now had an impact today, as jus superveniens on the structure built under the agreement, as evidenced by the passage of usage Appeal Judgement, (IV, No. 3 \\ 1988) that, by confirming l’annullamento del secondo diniego di concessione edilizia, precisa che il Sindaco non dovesse “sic et simpliciter ignorare il vincolo” idrogeologico, ma, più esattamente, “tener conto della possibilità che l’autorità competente in materia forestale adottasse provvedimenti tali da rendere compatibile col vincolo una limitata edificazione del terreno…”
La stessa sentenza, poi, precisa che “con determinazione non contestata dal Comune”, la Regione aveva “introdotto una modifica d’ufficio della variante al P.R.G adottato dal Comune, in forza della quale, la Giunta regionale, riassumente in sé tutti gli interessi pubblici affidati alla regione stessa”, had held that Article 40 of lrn51 1975, was not in the way of "a certain building rights" of the land, contradicting the assumption of the municipality, and without fail on the absoluteness of the bond ex art.40.
3.5. So, in the heads of all the cancellation of the second denial is given to obtain not only the foreclosure to a third refusal "total" of building rights, based on geological constraints, not only attributable to the good of life, but also in those circumstances, the measure of that attributable to, coincident with the (minor) variant recognized in the cubic building in the regional approval, because of the prevalence, sull'assetto raised in urban development agreement, the public interests being achieved by the unexpected discipline in terms of regional geological constraint.
This aspect is the same whether the same sentence # 3 \\ 1988 and before the 385 dated \\ 1985 of First Instance, had also cleared the same act of approval of the variant, in particular since this cancellation did not touch the point of recognition of a certain level of construction compatible with the constraint, but rather reinforced by other means configurability, assuming, however, in the variant, both the City Council that the region had "knowingly and intentionally" groped to recover all or in part, estimates of the development plan.
3.6. It should be stressed here that, with the recognition of the substantial attributable, in such lesser extent, the good life, (which constitutes, in terms of interest pretense, one of the prerequisites for a useful experiment for claims right AP # 7 \\ 2005), at the time when judged in favor of such a finding, however, was not challenged in an assessment of compliance tended to implementation "specific performance" of that part of the judicial dictum.
This is because, first, the development agreement had been abrogated by the advent of a discipline in urban planning / municipal. For the same annullata, infatti, la caducazione di quest’ultima non poteva comportare la reviviscenza della stessa convenzione, poiché il momento del passaggio in giudicato della sentenza d’appello n.3\1988 era ben successivo allo spirare del termine di efficacia della convenzione stessa.
Questa, infatti, stipulata il 9 giugno 1971, era in quel momento (e, invero, anche al momento della pronuncia di annullamento di primo grado, nel 1985) già inoperante per lo spirare del suo termine decennale di efficacia. Va in proposito richiamata la consolidata giurisprudenza di questo Consesso per cui le lottizzazioni convenzionate non possono avere l’efficacia di condizionare a tempo indeterminato la pianificazione urbanistica futura, dovendosi ritenere vigente un termine di loro durata massima pari a 10 anni, mutuando il termine di cui all’art.16, comma 5, della legge urbanistica n.1150 del 1942, applicabile al tempo dei fatti, concernente l’analoga figura dei piani particolareggiati (cfr. IV Sezione, 16 marzo 1999, n.286).
3.7. Dunque, l’annullamento della variante di P.R.G. non poteva più determinare alcun effetto utile sul piano dell’attualità di una pretesa al rilascio di concessioni edificatorie fondata sulla convenzione edilizia, stemperandosi quest’ultima, nell’ambito del giudicato, nella limitata rilevanza di una previgente disciplina di favore di cui, in base agli atti di adozione e di approvazione della variante, doveva comunque tenersi account, but, therefore, likely to establish a claim other than the applicant, namely that a proper consideration of its earlier position in the exercise of the power of urban planning (without which, indeed, had received judicial annulment from which comes the judge that you acted in place of compliance).
3.8. Aside for the moment, the latter aspect, it is then that the judge in question, in so far as concerned the "question of construction," and then the interest pretentious rising directly from the development agreement, could not be implemented in the compliance, having come under the assumption that the conventional instrument placed at the basis of original application for issuing building licenses.
Translating the situation in terms of remedies for the protection available to the applicant, this means that the root was prevented, compared to the configuration pertaining to the final good, the instrument of reintegration in a specific form to be carried out within the assessment of compliance, and this is so true that no instances based on the Convention and even less on the same grounds for annulment of the union canceled two denials, was never in concrete proposal before the enforcement court, having a request for protection at that place now pinned exclusively intake ad un contenuto favorevole della strumentazione urbanistica da emanare, segnatamente in sede di riesercizio, sotto la guida del giudice dell’esecuzione, del relativo potere urbanistico (già cassato con il giudicato qui in rilievo).
3.9. In tale situazione, e tralasciando problemi di astratta configurazione della prescrizione, non posti dalle parti in causa, alla ricorrente non residuava che il rimedio risarcitorio.
Al riguardo non sussiste, in parte qua, per una domanda cioè che, nell’interpretazione qui prospettata assume una sua autonomia, l’inammissibilità eccepita dalle parti resistenti, posto che tale interesse pretensivo non è stato coinvolto nel giudizio di ottemperanza e quindi non si pone alcun problema preliminary rulings of any of that, in this view, concluding the work entrusted to the commissioner to substitute acta, lead to the update pertaining to the good of life and to set up an interference between an action for damages and assessment of compliance. In contrast, the concrete
Recoverability of an interest pretentious whose ultimate sacrifice is due to the causal mechanism determined by two opposite unlawful refusal by the municipality, and the consequent delay in providing a positive, which was succeeded (in addition to lrn51 \\ 1975, in terms of geological constraint), the discipline of landscape where the law August 8, 1985, n.431, during the proceedings, con la connessa esigenza di adeguamento della disciplina urbanistica e, quindi, con la inattuabilità dell’originaria convenzione di lottizzazione, che, in ogni modo, nelle stesse more del giudizio, era divenuta inefficace.
3.10. La sopravvenuta cessazione di efficacia della convenzione ed anche la disciplina paesaggistica sopravvenuta, infatti, non possono essere considerate assorbenti della lesività concretamente assunta dai dinieghi in parola, posto che la tutela di annullamento accordata dalle sentenze favorevoli alla ricorrente, sullo specifico punto, implicava un retroazione degli effetti ampliativi della sua sfera sopra segnalati e quindi una valenza concreta ed effettiva del riconoscimento del bene della vita oggetto dell’interesse pretentious operated there.
The reported circumstances are etiologically attributable to the overall behavior provvedimentale the municipal administration, which had not allowed a prompt and legitimate definition of the position of the appellant's claim, prior to the replacement of the reported facts of the particular edition of the preventative power of granting the license, and therefore the protection in the execution phase, but not attributable to the foreclosure, then, the good life, and therefore dell'esperibilità of compensation claims
3.11. Found the causative link between measures of denial and lapse of infringement of pretentious now risen to a substantial nature in the sense the subtraction of the good life found to lie, just as required by the referral order, it remains to establish the subjective element of guilt, denied by the TAR, with the sentence appeal, but in hindsight, with arguments not related to the head of claim and then the partial case here considered.
These arguments are all referred to the regional decree of 1993 which had denied approval of the variation in the compliance PRG adopted by the Commissioner ad acta. No need to answer for the moment, the question in the abstract configuration of the element of fault on the part of administration in the offense caused by tort measure to be unlawful, since the decision of the TAR has not dealt with this point having previously ruled out the pretentious Recoverability of interest here considered in terms of non-recognition of compensable damage.
3.12. Even detects whether, compared with a previous development agreement, the responsibility of the administration for failing to issue the grant is to be attributed rather to the extraquiliana responsibility, type of "contract". On that issue, suffice it to say that the sentence cited by the appellant (Cass Civ, Sec. I, January 10, 2003, No 157) is a previous block, rather than having to reiterate that this administrative court has no reason di discostarsi dalla configurazione in termini di mero interesse legittimo della pretesa al rilascio dei titoli edilizi scaturente da una convenzione di lottizzazione.
3.13. Quanto all’elemento della colpa, non può negarsene il ricorrere laddove emerga, come nel caso, la duplice ed insistita erroneità della posizione assunta nei dinieghi annullati dal Comune, che ben avrebbe potuto essere evitata ove avesse diligentemente verificato la propria competenza a disporre in materia di vincolo idrogeologico, nonché l’effettiva portata di quest’ultimo circa la compatibilità con una residua edificabilità, solo limitata da una disciplina regionale che conseguiva, comunque, ad una di livello statale, che mai avevano coinvolto, until then, the City Council in its duties.
Emerge well as we do not pose major problems in the administration set up the guilt in this case, in light of additional allegations made by the appellant in relation to the "dictum" of the contested decision, and how not to be important in behavior "omissions" without further qualifications, with related problems of jurisdiction, given the nature of provvedimentale tortious acts arising from the same pa
4. To the point now decided, and except as will be explained later, the case should therefore be deferred to Section Four, so decide in order to provide compensation to the quantum, by examining the attributable and the merits, in terms of evidence, the individual items of damage alleged by the appellant, which on the understanding that the measure of good life (jus aedificandi) belonging to the same appellant, to be identified, in terms of emergencies derivable from the findings of the trial judged, to the extent recognized by the (canceled) resolution approving the PRG variant # 3 \\ 3970 of 31 March 1981 and that the damage seen here is related to the lesion completely suppressive of the good life, without involving issues of harm " by delay. "
5. As further interest pretentious "urban" system, being only indirectly in the development agreement, that is stated in the interest pretentious held here in relief - for which, once undertaken by the determination to provide for the protection of the public through a new tool in urban variant of the PRG, the exercise of its power was to be so as to take account of the previous position, in relation to that same area, had been given to the applicant, it should be stressed beforehand that this position had a consistency more pretentious title and eased rules differing from those previously considered.
The convention, in fact, in the exercise of power following PLANNING, degrades the act, the source of discipline edificatoria, in fact, even if legally relevant in the balancing of public and private interests threatened the government, municipal and regional powers involved in the ownership of the same.
5.1. It should also be considered as another key aspect that is related to what has been said in this paper. Noting
right now, and except as will be explained below, the court of first instance has established, in a ruling not subject to cross-appeal, and therefore no longer be disputed in this appeal, attributable to the good of life following the decision taken in 2000 n.2592 of compliance by the Fourth Chamber (denying the addebitabilità damages for failure to act on the subjective element of guilt), the legitimate interest connected pretentious, adequate consideration of its position in the power of planning, although different than the original interest pretentious first examined, (connected to the validity of the Convention development agreement), has, as has been said, relates to the same underlying asset life by it, ie, in terms of the interests involved the recognition of a certain amount of building rights on the same area.
The latter is, in fact, the final aspiration that all subsequent proceedings tended to achieve compliance and this is undoubtedly the source of interest to resort constantly relied upon in that forum.
But if so, what the abstract proposability for claims from the second interest pretentious, recognition of the merits of the first claim, to the extent indicated above, with reference to the existing note pretentious interest arising from the Convention, means that, drawing recognition that the identical right of life, it helps to reduce the substantial basis of reference of the Recoverability of the same second interest pretentious.
5.2. In other words, for the protection of the pretense proceeds only by the positive assessment attributable to the good of life, and it has already been accomplished to some extent and made the subject of compensation claims, it follows that, for compensation purposes more important here, a finding attributable to the well of the final must be taken, in fact, account for as recognized with regard to the same well, in reference to pre-existing interest in this pretentious, illogical, and otherwise reaching a inconfigurabile duplication of compensatory remedies in terms of material goods in pursuance of which are intended, ultimately, interest pretense here considered.
In practice, therefore, in the situation of interconnection pretense of interest reported here, the action compensation for the second of which could in the abstract only take that part of the property (jus aedificandi, that allowed airspace area), which, in theory, following the opinion of compliance, the Appellant should be up in excess of the above measure provided in respect of the aforesaid position of interest arising from the Convention pretentious.
5.3. With regard to the interests pretentious hours in relief, the court of first instance, he at first said that it was not, in principle, feasible action for damages in relation to judged the 1985 and 1988, as This was based on substantial grounds of lack of PLANNING, also with reference to regional approval, which had not taken into account, as we have said, the previous development agreement and the position of its benefits to the appellant.
This is because the type of cancellation so silent on the proposed attributable to the good of life associated with the pretentious relied on res judicata effect of the peremptory is summed up in mere riesercizio of power, of course amended the habit of failure to take account of the fact formed by previous relevant development agreement.
The initial success of the Tar is also related to the period prior to which he had about the decision of appeal within the compliance n.2592 in 2000 (then 1993), whose decision led to a break, and substantial time, the question of interest here Recoverability in relief.
On this first part of the Tar claims must be agreed, not without note that the slope of the compliance process in conjunction with this appeal (at least with respect to another meeting called here), does not render inadmissible the action for damages directly here concerned that focuses directly on the achievability of the measures of edificatoria permissive, even excluded, in theory, even the objects of acts planners iniziale del presente giudizio (perché subentrati dopo la sua introduzione, o successivi alla sua definizione in primo grado), ovvero dall’intervenire delle misure di salvaguardia ex artt. 24 e 25 del D.lgs.n.157 del 2006,(che impedirebbero il rilascio di nuove concessioni fino all’approvazione dei nuovi o variati piani paesaggistici da parte delle Regioni); l’ulteriore pretesa risarcitoria qui in rilievo si connette piuttosto alla risarcibilità dei danni “da ritardo” conseguente all’illegittimo esercizio dell’attività pianificatoria.
5.4. In proposito va infatti rilevato che l’appellata sentenza n.182 del 2007, dopo l’iniziale affermazione di principio sopra riportata, riferita al periodo intercorrente tra il giudicato del 1985-1988 ed il 1993, oggetto dell’appello ora in esame, ha statuito, (sia pure con una certa contraddizione con la sentenza n.217 del 2007, contraddizione invocata a proprio favore dall’appellante), che, la decisione della Quarta n.2592 del 2000, -laddove aveva ritenuto l’illegittimità del rifiuto regionale, assunto nel 1993, di approvazione della delibera del commissario ad acta del 1991, basato sull’applicazione della misura soprassessoria di cui all’art.1 ter della legge 8 agosto 1985, n.431-, avesse determinato la consistenza sostanziale della posizione della società ricorrente.
Va inoltre precisato che l’interesse pretensivo connesso alla corretta view of its position in the power of planning (and its riesercizio), could in theory still find a partial relief by way of reinstatement in a specific form possible, in the absence of spontaneous adaptation administration unsuccessful, as part of assessment of compliance is still pending, in relation to each other litigation relating to events subsequent to those here considered as a whole.
In any case, the compensation purposes we are concerned here, the alleged policy of "urban" now under consideration, and following the reported conclusive ruling of the court of first instance based on the importance of the decision n.2592 of 2000, therefore, from First, connects attributable to the recognition of the good life, to some extent, on the other hand, when verified this assumption the correlation, hypothetically, in relation to quantum, the damage caused by delay as possible even if you reinstatement in the specific form would survive only a residual "weak point", connected to the failure to obtain, in times of ordinary definition of the procedure (here again, as the court first held in 1993), the good life.
5.5. Therefore, the same configurability of delay damages can not be commensurate, in his terms of relevance required time, the first condition pertaining to the good of the established life, so that a fortiori the ruling of the court which first set in 1993 when the allocation of the assets, and discount the damage caused by delay renders irrelevant the exceptions of inadmissibility of the claim for damages and appeal, related to the slope Judgement of compliance and the events in it occurred even after the present proceedings.
The particular case of the case, then, offers an exception resulting from the findings of that court is conclusive here you must take into account the principle that the damage "to delay", in the case of pretense interests, can only be appreciated and compensated as a result of the recognition attributable to the good life that has been enshrined in the positive issue in the proceedings of compliance, the positive measure.
5.6. However, even signing the statement of the contested decision concerning the attributable to the good of life since 1993 (and only for the damage caused by delay), the decision at first instance is however confirmed the allegation of absence of fault the regional administration in respect of its disapproval of the variant commissioner.
the causative sequence of acts, in case of damage caused by delay, it is clear that the act should focus on which is regional in question (DGR July 16, 1993, n.39033), having this, in the circumstances that emerged in the first instance, been the sole obstacle to the actualization of the essential and substantial claim and, therefore, on the one hand, returning in a specific form on the other hand, the timely satisfattività this in reference to When explanation of the phase provvedimentale however due to the Region.
5.7. But such a negative determination, in fact, can not be considered guilty of mail, having regard to the concept of guilt, as reported to the administration apparatus, and not to the individual person acting on behalf of it, poses in a completely tort liability arising under the special enactment of unlawful acts.
On the issue of guilt of the pa as a constitutive element of its tort liability, with reference to more recent statements, incorporating the previous judicial experience in the field, it reported a first "line of cases" referred to in private damaged by an administrative unlawful is not required a special effort to demonstrate the evidence of guilt pa, being sufficient for this purpose rely on the illegality of the measure as an index of presumptive guilt, or attach additional factors, such as to show that it was a mistake not excusable; while it is shown that the administration has trattato di un errore scusabile.
A tale orientamento si giustappone un enunciato di principio che, riassuntivamente rispetto alle posizioni via via elaborate, è di maggior rilievo e frequenza, secondo il quale l’imputazione della responsabilità nei confronti della p.a. non può avvenire sulla base del mero dato obiettivo della illegittimità dell’azione amministrativa, giacchè ciò si risolverebbe in un’inammissibile presunzione di colpa, ma comporta, invece, l’accertamento in concreto della colpa dell’amministrazione, che è configurabile quando l’esecuzione dell’atto illegittimo sia avvenuta in violazione delle regole proprie dell’azione amministrativa, desumibili sia point from constitutional principles of impartiality and good performance, both by the rules of ordinary law in point of speed, efficiency, effectiveness and transparency, both by general principles of, in point of reasonableness, proportionality and appropriateness. (V, 8 September 2008, n.4242).
5.8. Now, the decision under appeal with the statements of principle which it prefixed to the resolution of the matter, has finally acceded to the second here reported conceptions of guilt, so that it is not necessary here to resolve the question of the abstract concept of fault attributable to the pa , taking into account the fact that the same allegations made by the Act of appeal to contest the finding unfavorable made at first instance always move in the wake of the second conception of guilt just now resumed and, therefore, incumbent on the level of evidentiary inferences about who is acting as a compensation.
5.9. These allegations, however, are not sufficient to overcome as the Tar shareability said about the defect, specifically, the element of fault.
The region has in fact applied the principle of temporary dell'inedificabilità areas previously identified under the law n.431 el 1985, as provided by Article 1 ter sl, until the approval of landscape plans, so influential on 'approvabilità of planning instruments that the building had expected for those areas (in which fell peacefully to the aera issue). The illegality
\\ unenforceability of such refusal "soprassessorio" in relation to the obligation of ensuring compliance with court has been regarded by the 2000 decision of the Fourth Chamber on the ground that the region as a necessary part of the main proceedings and, therefore, Judgement in the execution phase, was also subject to the obligations arising from the final and binding nature of what it had established in adherence to the Commissioner ad acta, if anything, having the obligation to promote an accident, to assert his reasons inherent in 'application of discipline prevailing landscape within the same trial run.
5.9. However, in the present case, the region was drawn to the obligation to execute, in a manner different from the position that it considered to assume, based on the sophisticated interpretative elaboration of the situation resulting from the review of compliance, both in terms of procedural substantive decision made by the 2000 n.2592.
This decision held that it was possible that the region possessed a residual independent power to review the choices of the Commissioner ad acta, going the opposite opinion to the view from the same Tar with the decision at first instance n.1146 1995, which had complied with what was held in previous execution sentence no.187 \\ 1990, does not appeal, which had placed the running only by the Municipality, the same decision in 2000, in highlighting the ruling of the court of first instance, noted that the original decision of 1990, no.187, the first in the compliance, did not contain "that a partial order of execution."
Overcoming this aspect is the result of an interpretation of the facts and legal procedural past, which led the court of appeal on the edge of highly complex principles, intended to overcome the same problems caused by previous rulings of compliance of First Instance, with respect to which the region had no reason to doubt the correctness of the position.
5.10. Substantive standpoint, then, the region was held in a sense that because of the peremptory character of the period of adoption of landscape plans and the resulting Continuing beyond this date soprassessori the powers of the regions, corresponded to a widespread practice that was followed by an equal regions , uniformly invested with similar problems, as the Court recognized not only about the peremptory character of the word in question (and this is recognized the same decision in 2000), but also the spread of the application of Articles. 1 a and 1 b of the law n.431 of 1985 by several regions.
The submission to a regional "order of execution implicitly, the superabilità (considered by the decision n.2592 of 2000) of the peremptory character of the period of adoption of the landscape plans for soprassessori, depending on the importance of spending considerable time in relation to a "situation which has received the final conformation of res judicata ", the requirement (except in accordance with the judgments of first instance) that the region itself must necessarily speak in passing in trial of compliance, to assert its objections to the forecasts provided by the commissioner of building rights according to the discipline of landscape, the same occurrence of this in a court expressly recognized as a stranger to matters of nature landscape, are all circumstances that preclude the unlawfulness of the negative determination in 1993 was attributable to a faulty interpretation activities put in place by that region.
The latter, also by applying the rules of good governance implied by the principles of administrative actions outlined above, would not normally be expected from the appellate court found unlawful execution, having referred to the discipline in a Landscape ' interpretation of "normal" and widespread, the limits of legality, respect to the matters raised in the review of compliance, could not, therefore, be detected an autonomous part of the effort normally required to exercise due care in carrying out its administrative apparatus journalistic functions. The particular case examined
hours, then it shows that the act detrimental to the abstract, set up by the Region in 1993, was suffering from an unlawful objective due to excusable error, and this is also apparent from the large discharge the burden of allegation made the defense of the region with the memories produced in this case.
5.11. Excluding the item guilty now dealt with, the result is an absorbing investigation which allows you to reject the claim for damages to that extent, and thus also to speak corresponding partial rejection of the appeal, irrespective of the actual attributable to the good of life, confirming on this point, the decision at first instance.
6. It should therefore be considered the following appeal from the decision n.217 of 2007.
With it, the Court of First Instance held that the regional landscape plan approval occurred, with resolution GR n.VII \\ 197, March 6, 2001, required it to review the determinations of the same Commissioner ad acta which centered on the recognition of attributable to the good of life (a certain percentage of building rights conferred by this variant) and the assumption of substantial character on the part of the interest at issue here pretentious.
This is because, for the Tar, the jus aedificandi awarded by the court here in relief (in particular by the decision of the commissioner adopted by ACTA January 31, 1991), focusing only on the consideration of town planning and building regulations, could not withdraw the before the occurrence of the legal landscape plan as per the resolution of regional n.VII \\ 197, 6 March 2001, with the result that it was necessary to appoint a new Commissioner ad acta for you to proceed, according to what is already developed, approved the PRG variant compared to the area already covered by the development plan, taking into account the landscape plan have occurred.
6.1. The appeal now under consideration, however, focuses on a premise that is shared only in the abstract that the court of compliance resulting from more than once that decision n.2592 Section IV of the 2000 reform of decision-made in the Tar n.1146 1995, which had stated in the compliance, the legality of a refusal to approve the 1993 regional variant of the "adopted" by the Commissioner to be appointed by the same Tar-acta, integrating the original judged of 1985-1988, setting up a case of res judicata, in fact, "a progressive" such as to influence and to gradually reduce the scope of discretion in the remake of the power PLANNING.
At that time, The Fourth Chamber had stated that the commissioner shall act of 1991 took into consideration the basic principles of landscape protection under the law n.431 of 1985 and that this evaluation produced a binding effect, both for the city that for the region, parts needed of the main proceedings and the executive, both replaced in their respective areas of competence, even as the reflections on the case of execution, it had become discipline of the Act of 1985 (constituting jus superveniens impingente implementation because prior to notification of sentence of Section IV of 1988 which led to the court decision becomes final passage of First Instance 1985).
6.2. Compared to that ruling, for the appellant, must be regarded as part of the temporal slope of the proceedings of compliance, could not be called continuously disputed the claim by the individual, on grounds of res judicata also configured by the progressive integration arising from rulings of the court of compliance cognitor by reason of the occurrence of new administrative arrangements in general. Not only does it undermine the certainty of the position of the recipient in favor of res judicata, never allow to identify the exact content of the obligation of performance.
The Judges should be considered as intangible, with regard to the establishment of the right building, in homage to principio per cui la legge sopravvenuta è irrilevante sulle situazioni giuridiche istantanee definite dal giudicato (A.P. n.2 dell’11 maggio 1998).
6.3. Nella specie non è necessario affrontare la complessa tematica della rilevanza dello jus superveniens con riferimento alla valenza dei successivi strumenti paesaggistici, atteso che il primo de quo è stato approvato prima che la sentenza che ha riconosciuto il titolo alla edificazione fosse passata in giudicato. Detta disciplina paesaggistica era certamente opponibile all’originaria ricorrente, nell’ambito del giudizio di ottemperanza successivamente riattivato, atteso che la decisione n.2592 del 2000 ha assunto valore di giudicato, divenendo cioè “definitiva” and "resistant" to the jus superveniens, only following the decision of SS.UU. the Supreme Court April 19, 2002, n.5730, which dismissed the appeal for lack of jurisdiction filed against the decision of the Fourth.
It follows that the Tar properly took into account the landscape plan have occurred, for the purposes of enforcement officers borne by the person re-appointed Commissioner ad acta, so now discussed the appeal to be considered unfounded.
7. In conclusion it must be partly accepted the appeal No. 12 \\ 1998, with reference to the Fourth Section to the court rulings related to the quantum compensation, the terms pertaining to the good of life found here, and the appeal must be dismissed No. 13 \\ 1998, as just stated.
The extreme complexity of the issues of fact and of law brought to the attention of the Board, certainly indicative of the uncertainty of purpose, and mutual some heads of the parties must involve the full compensation of court costs between them even for the first degree in connection with the acceptance part of the appeal No. 12 \\ 2008 (and the consequent partial reform of the decision at first instance with its appeal), subject to determination as to the additional costs or expenses payable to the Fourth Section for the continuation phase of the proceedings before it.
PQM
Il Consiglio di Stato in sede giurisdizionale, Adunanza Plenaria, previa riunione dei ricorsi nn. 12 e 13 del 2008:
- accoglie in parte l’appello n.12\2008, rinviando alla Quarta Sezione per l’ulteriore prosecuzione del giudizio;
- respinge l’appello n. 13/2008.
Compensa le spese tra le parti costituite nei termini di cui in motivazione.
Così deciso in Roma, nella Camera di consiglio del 20 ottobre 2008, con l'intervento dei Signori:
Paolo Salvatore - Presidente del Consiglio di Stato
Giovanni Ruoppolo - presidente di sezione
Gaetano Trotta - presidente di sezione
Luigi Maruotti - consigliere
Pierluigi Lodi - consigliere
Giuseppe Romeo - consigliere Paul
Buonvino - Adviser
Luciano Barra Caracciolo - Adviser extensor
Cesare Lamberti - Adviser
Aldo Fera - Claudio Marchitiello
Adviser - Adviser
Marco Lipari - Domenico Cafini
Adviser - Adviser
President Director Secretary
FILED IN THE OFFICE 03/12 / 2008.
- accoglie in parte l’appello n.12\2008, rinviando alla Quarta Sezione per l’ulteriore prosecuzione del giudizio;
- respinge l’appello n. 13/2008.
Compensa le spese tra le parti costituite nei termini di cui in motivazione.
Così deciso in Roma, nella Camera di consiglio del 20 ottobre 2008, con l'intervento dei Signori:
Paolo Salvatore - Presidente del Consiglio di Stato
Giovanni Ruoppolo - presidente di sezione
Gaetano Trotta - presidente di sezione
Luigi Maruotti - consigliere
Pierluigi Lodi - consigliere
Giuseppe Romeo - consigliere Paul
Buonvino - Adviser
Luciano Barra Caracciolo - Adviser extensor
Cesare Lamberti - Adviser
Aldo Fera - Claudio Marchitiello
Adviser - Adviser
Marco Lipari - Domenico Cafini
Adviser - Adviser
President Director Secretary
FILED IN THE OFFICE 03/12 / 2008.
