This work regards the conflict between the developmente of the renewable energy sources, on one hand, and the preservation of the landscape, on the other hand. The first part of the research tries to prove, by the means of a systrematic reconstruction of the constituzional jurisprudence (not Always straightforward), that the preservation of the landscape is not an interest superior to every one else, but that is has to be intended as object of balancing between other costituzional interest of primary importance, including the realization of energy production facilities supplied by renewable energy sources. Moving from these preliminary remarks, the research come to assert that the landscape compatibility valuation of this facilities falls into the field of the so called "mixted discretion" because it can non exclusively tur into the application of technical criteria and parameters, derived (mainly) by the aestetic science, but involves also a discretional valuation of the interests at stake, that has to be accomplished in consideration of the measure of protection recognized by the legal system to each one of this interests. The reflection and the balance of these interest has to move in the contest of the planning provedie by par. 17 of the Guide Lines or has to be included in the proceeding pursuant to d.lg. 387/2003. After all, the lasting topicality of the administrative proceedings stands out in the background as an instrument of acquisition, settlement and graduation of the interest considered worthy of protection.
La perdurante attualità del procedimento amministrativo come "forma della funzione": il caso del conflitto fra la tutela del paesaggio e lo sviluppo delle fonti rinnovabili alla luce delle linee guida di cui al d.m. 10 Settembre 2010
MORO, Sergio
2011-01-01
Abstract
This work regards the conflict between the developmente of the renewable energy sources, on one hand, and the preservation of the landscape, on the other hand. The first part of the research tries to prove, by the means of a systrematic reconstruction of the constituzional jurisprudence (not Always straightforward), that the preservation of the landscape is not an interest superior to every one else, but that is has to be intended as object of balancing between other costituzional interest of primary importance, including the realization of energy production facilities supplied by renewable energy sources. Moving from these preliminary remarks, the research come to assert that the landscape compatibility valuation of this facilities falls into the field of the so called "mixted discretion" because it can non exclusively tur into the application of technical criteria and parameters, derived (mainly) by the aestetic science, but involves also a discretional valuation of the interests at stake, that has to be accomplished in consideration of the measure of protection recognized by the legal system to each one of this interests. The reflection and the balance of these interest has to move in the contest of the planning provedie by par. 17 of the Guide Lines or has to be included in the proceeding pursuant to d.lg. 387/2003. After all, the lasting topicality of the administrative proceedings stands out in the background as an instrument of acquisition, settlement and graduation of the interest considered worthy of protection.
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