Victory of the Liguria Region against the environmentalists of WWF and Vas regarding the addresses of the Wildlife Plans; the TAR rejected in toto, entering into the merits, the anti-hunt appeal, arousing full satisfaction of the Regional Councilor for the Environment Renata Briano and of the Councilor Bruzzone. On his Facebook page, Councilor Briano commented on the Tar ruling, “Good news! The TAR has rejected in toto, entering the MERIT, the appeal of the environmentalists on the addresses of the Wildlife Plans. The outcome of the appeal now allows the Provinces to continue with the new plans and shows that it was certainly not the will of the administrations to keep the planning firm. This theme is particularly relevant also for the Hunting Calendar and the selective collection of Ungulates ".
Continuing, the commissioner said, “The Region approved the guidelines at the beginning of the mandate because it wanted to speed up wildlife planning but the appeal has kept us steady for two years and we have been attacked on this point also in subsequent acts and in an instrumental way. Instead we worked well in a legitimate and scientific way. I am sure that time will prove us right on the other appeals as well ”.
At the news of the rejection of the anti-hunt appeal, the leader of the Lega Nord in the Regional Council of Liguria, Francesco Bruzzone, who in the last period has particularly suffered from the controversial situation of Ligurian hunting, fully shared the satisfaction of councilor Briano commenting "I learn with satisfaction with the news relating to the decision of the TAR of Liguria, which rejected in toto, entering into the merits, the appeal of the environmentalists on the addresses of the Regional Wildlife Plans. The environmentalists have unmasked themselves. Because they complain about the lack of wildlife plans to challenge the Hunting Calendar, and then they themselves are the ones who had challenged the guidelines to draw up the Wildlife Plans. It therefore appears more evident - concluded Bruzzone - than ever the use of any means to stop the hunting activity, leaving out any kind of real attention to environmental protection ".
Below we publish the full text of the sentence of the Liguria Tar:
"
N. 01279/2013 REG.PROV.COLL.
N. 00896/2011 REG. REC.
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
The Regional Administrative Court for Liguria
(Second Section)
pronounced the present
JUDGMENT
on the appeal number of the general register 896 of 2011, proposed by:
Italian association for the world wide fund for nature, WWF, in the person of the legal representative in office
VAS green environment association and non-profit society, in the person of the legal representative in office
both represented and defended by the lawyer prof. Daniele Granara, where they have elected domicile in Genoa in via Bosco 31/4;
against
Liguria Region in the person of the president in office, represented and defended by lawyers Michela Sommariva and Gigliola Benghi, with their domicile in Genoa in via Fieschi 15
Province of Genoa in the person of the president in office, represented and defended by the lawyers Carlo Scaglia and Valentina Manzone, with domicile in Genoa in piazza Mazzini 2
Province of La Spezia in the person of the president in office, represented and defended by the lawyers Veronica Allegri and Roberto Benvenuto, with an address for service in Genoa at the administrative court secretariat
Province of Savona in the person of the president in office
Province of Imperia in the person of the current president;
for cancellation
of the resolution 15.4.2011, n. 387 of the council of the Liguria region
Given the appeal and its annexes;
Given the acts of appearance in court of the Liguria Region and the Province of Genoa and the Province of La Spezia;
Given the defensive memories;
Having seen all the acts of the case;
having regard to the productions carried out at the hearing by the applicants, nothing opposing the counterparties;
Speaker at the public hearing on October 17, 2013, Dr. Paolo Peruggia and having heard the defendants for the parties as specified in the minutes;
Considered and considered in fact and law as follows.
FACT and LAW
The Italian association for the world wide fund for nature, WWF and the VAS green environment association and non-profit society consider themselves injured by resolution 15.4.2011, n. 387 of the council of the Liguria region, for whose cancellation they notified the deed 19.7.2011, filed on 1.8.2011, with which they complain:
violation of art. 10 of the law 11.2.1992, n. 157, of the art. 3 of the Liguria Region Law 1.7.1994, n. 29, excess of power due to manifest illogic and irrationality, misleading.
Violation of art. 6 of the Liguria Region Law 1.7.1994, n. 29, excess of power due to intrinsic contradiction and manifest illogicality, misleading.
Violation of art. 5 paragraph 3 and 4 of the law 11.2.1992, n. 157 and art. 29 paragraph 11 of the Liguria region law 1.7.1994, n. 29, excess of power due to intrinsic contradiction and manifest illogicality, misleading.
Violation of articles 2, 12 paragraph 2 and 3, 10 paragraph 8 lett. e) and 18 of the law 11.2.1992, n. 157, excess of power due to manifest illogicality and irrationality, misdirection.
Violation of art. 10 paragraph 1 of the law 21.11.2000, n. 353, excess of power due to lack of presupposition and manifest contradiction.
The Liguria region and the provinces of Genoa and La Spezia have appeared before the court with separate briefs, all asking for the application to be rejected.
The parties then filed briefs and documents.
The appeal concerns the resolution with which the council of the Liguria region prepared the general guidelines that the provinces must observe in compiling the wildlife plans that the local law 1994, n. 29 attributes to their competence.
First of all, the exceptions with which the established resisting parties contested the admissibility of the appeal must be examined.
In this regard, the lack of actuality of the interest in challenging has been deduced, as the determination was issued in the exercise of the planning, coordination and orientation functions of lower level entities; it follows that the act would not have attitudes of immediate damage, hence the inadmissibility of the encumbrance.
The college notes in this regard that the legal system, and the jurisprudence in particular, have had the opportunity to apply the regulatory principles (Article 100 of the Italian Code of Civil Procedure) on the interest in acting also to documents with a general content that can be wholly or partially directly harmful; one of the most well-known hypotheses is that of the admissibility of the immediate encumbrance interposed for the annulment of the council resolution for the adoption of the regulatory plan, which it was doubted was admissible precisely because of the difficulty of identifying an immediate profile of damage to the protected legal situation.
In this sense, it was considered possible that the position of someone with regard to the approval procedure of the urban planning instrument is prejudiced since the adoption of his project, so that there was no space left to deny the immediate possibility of taking legal action; this acquisition may appear not very satisfying from a dogmatic point of view, given its non-linear corollaries in terms of the inadmissibility of the interposed encumbrance where the approval act of the PRG is not also censored, but it represented a point of connection for the various requests that may arise on the subject, so that it configures a valid equation to which to refer in order to decide.
It follows that even the contested act can be known here, with the caveat that those parts of it which may appear to be totally general and not directly harmful cannot be known on the merits.
The exception is therefore unfounded, and the grievances can be appreciated on the merits.
The first of these complains about the illegitimate determination of the agro-forestry-pastoral territory mentioned in art. 10 of the law 11.2.1992, n. 157; it must be subject to adequate planning to aim at achieving the best interpenetration between the needs of the protection of the fauna and those which, on the other hand, justify its removal.
Preliminary in this sense is the definition of the space in which the hunting activity can actually be practiced, given that its consideration for the purposes of which it is concerned must take into account other issues that are related to the territory in an equally relevant way. The censor complains of the illegitimacy of the regional provision which did not a priori prohibit hunting in the road, rail and urbanized areas; the question arises from the provision of art. 10 paragraph 3 of the law 11.2.1992, n. 157 which allocates a certain percentage of the agro-forestry-pastoral territory of each region to the protection of wildlife, but does not specify whether or not the areas in which different regulations prevent hunting must be included in this portion.
The constitutional court ruled on the matter with sentence 30.11.1997/448/XNUMX, n. XNUMX with which he considered legitimate the provision denounced in the part in which the percentage of the areas to be allocated to the protection of wild animals also includes the areas that are prohibited from hunting under other regulations.
In this regard, the appellants observe that other judgments have decided otherwise, and that some passages of the sentence of the constitutional court would suggest a possibility of reading the denounced rule otherwise: nevertheless, the college believes that it adheres to the reading that makes the provision the defenses resistant, given that it is not incongruous to imagine that wildlife can find refuge and protection even in areas where other regulations have imposed a ban on hunting due to different needs.
With the second reason, the applicants denounce the incongruity of the regional directives, which will allow the Ligurian provinces to determine homogeneous huntable areas that are not homogeneous, given that they will be able to include coastal areas together with areas located beyond the Apennine watershed, and so completely different from the previous ones.
Also in this case the court must adhere to the resistant defenses in the part in which they emphasize that art. 19 of the Liguria region law 1.7.1994, n. 29 has been modified, inter alia in the sense that hunting areas must be as homogeneous as possible. The legislator has therefore recognized the opportunity for the need to determine portions of the territory that can be assimilated from a hunting point of view to be tempered by other factors, the identification of which is left to the administrative authority.
It follows from this that this plea is also unfounded and must be rejected.
The third complaint concerns the illegality of the act encumbered in the part in which it admitted the location of fixed positions for hunting other than those that were in use in the 1989/1990 season.
You May Also Like ..
In this regard, the court notes that attachment 3 to the contested resolution does not allow for an increase in workstations beyond the limit indicated, but provides that the administrative authority gives consent to new installations within the limits mentioned above, from which the groundlessness of this reason as well.
The fourth complaint complains that the regional act allows dog training even in closed hunting periods, thereby violating the laws in force on the subject.
The court notes that the laws denounced (articles 2, 12 paragraph 2 and 3, 10 paragraph 8 letter e) and 18 of the law 11.2.1992, n. 157) do not prohibit the training activity of dogs to the extent permitted by the contested resolution. In addition to this, the regional defense and those of the provinces of La Spezia and Genoa put forward convincing arguments (among other things, the sentence 11.2.2013, n.778 of the Council of State) to assert that there must not be necessary coincidence between the hunting period. and the one intended for the training of dogs.
The acquisition is above all logical, given that an untrained dog is of little help to the hunter, who must instead proceed with the collection of the fauna that the acts have considered venable.
This plea is therefore also unfounded and must be rejected.
The last reason is the violation of the law 21.12.2000, n. 353 regarding the prohibition of hunting in wooded areas where fire burns; the law intended to preserve the ability of the environment to reorganize itself in a natural sense after a devastating event such as fire spread in a forest, and had set the deadline of ten years after the event for the resumption of hunting.
However, it cannot be doubted that the regional legislation has a wide scope in the sector in question, so that the provision introduced by the Ligurian law of 7.10.2008, n. 35 which reduced the ban on hunting in wooded areas crossed by fire to three years appears legitimate and capable of regulating the species.
In conclusion, the appeal does not deserve sharing and must be rejected: the expenses follow the loss and are fairly liquidated in the device, taking into account the nature of the dispute and the quality of the parties.
PQM
The Regional Administrative Court for Liguria (Second Section)
He rejects the appeal and condemns the plaintiff associations, jointly and severally, to pay the litigation costs incurred by the respondent parties, which he pays for each of them in Euro 1.500,00 (one thousand five hundred / 00), in addition to legal accessories.
It orders that the present judgment be enforced by the administrative authority.
So decided in Genoa in the council chamber on October 17, 2013 with the intervention of the magistrates:
Giuseppe Caruso, President
Oreste Mario Caputo, Director
Paolo Peruggia, Director, Writer
THE EXTENDER THE PRESIDENT
DEPOSITED IN THE SECRETARIAT
31/10/2013
THE SECRETARY
(Art. 89, par. 3, administrative proc. Code)
"
