The Council of State canceled the refusal opposite by the Municipality to the request for authorization for the construction of two biomass plants in Ravaschi. The administrative judges accepted the appeal filed by the proposing company, the Vital South, assisted by the lawyer Massimiliano Carovale, against the municipality of Girifalco, defended by the lawyer Mario Mascaro, and the Superintendency, represented by the general lawyer of the State for the reform of the first instance sentence issued by the Tar of Catanzaro. Cited in court, the Calabria Region did not establish itself.
The heart of the decision of the Council of State lies in the violation of the current legislation, where it establishes that “in the proceedings at the request of the party the person in charge of the procedure or the competent authority, before the formal adoption of a negative provision, promptly communicates to the moments the reasons who host the acceptance of the application ». “Within ten days from the receipt of the communication – we still read in the sentence – the moments have the right to submit their observations in writing, possibly accompanied by documents. The communication referred to in the first period interrupts the terms to conclude the procedure starting again from the date of submission of the observations or, failing that, from the expiry of the term referred to in the second period. The possible failure to accept these observations is given reason in the motivation of the final provision ».
In the case in question, the Municipality of Girifalco would have omitted this essential step, compromising the right of defense of the applicant. The affair, treated by the administrative judiciary, dates back to 2019 when the “Vital South” challenged the provision with which the Municipality, concluding the conference of services in the face of the TAR, denied the authorization to create two biomass plants, complaining about the lack of the notice notice.