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Legislation on Urban Planning Urban Planning and General Principles of Administrative Law

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Title: Legislation on Urban Planning Urban Planning and General Principles of Administrative Law


1
Legislation on Urban Planning Urban Planning
and General Principles of Administrative Law
  • Fabrizio Fracchia

2
Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa Lecturer(s) Fabrizio Fracchia , Giuseppe La Rosa
Date Hours Contents Lecturer
21 March 2011 3 General principles of Administrative Law legal tools (proceedings, powers and acts). Definition of Urban Planning Law and identification of its scope. The Constitutional and legal framework. Prof. Fabrizio Fracchia
22 March 2011 3 The legislative and administrative competences on Urban Planning between State and Regions. The relevant Public Administrations involved. Prof. Fabrizio Fracchia
23 March 2011 3 Urban Planning, Environment and Sustainability. Prof. Fabrizio Fracchia
30 March 2011 2 Different interests in the use of the territory the central role of the Territorial Coordination Plan (piano territoriale di coordinamento) and other territorial plans. The relevant procedures Dr. Giuseppe La Rosa
31 March 2011 2 The General Town Planning and the Joint General Municipal Planning general remarks, contents and procedures Dr. Giuseppe La Rosa
01 April 2011 2 The General Town Planning urban standards and the issue of urban restrictions Dr. Giuseppe La Rosa
05 April 2011 2 The equalisation (perequazione). The Urban Action Plans. The role of private parties in Urban Planning the companies of urban transformation. Dr. Giuseppe La Rosa
06 April 2011 3 Final exam   Dr. Giuseppe La Rosa
3
Overview
  • The Constitutional and legal framework
  • General principles of Administrative Law
  • Legal tools (proceedings, powers and acts)
  • Definition of Urban Planning Law and
    identification of its scope

4
Plans, Sustainability and Future
5
  • Abu Dahbi
  • Masdar
  • to reduce its emissions, especially in such an
    unwelcoming environment, the city will employ all
    sorts of innovative and outlandish technology.
    All the buildings, naturally, will be supremely
    energy-efficient. Water will be recycled, to
    reduce the need for desalination. There will be
    dew-catchers, rainwater harvesting and electronic
    sensors to raise the alarm in case of leaky
    pipes. There will be green spaces, but with
    drought-resistant plants rather than the thirsty
    lawns and flowers that are the norm in Abu Dhabi.
  • No cars will be allowed. Instead, people will
    have to walk, or take personal rapid
    transitsmall pods that will zoom around the
    city on tracks, akin to metro cars for
    individuals. Goods will be moved in the same way.
    The city will be walled, to keep out the hot
    desert wind. The lack of cars will allow for
    narrow, shaded streets that will also funnel
    breezes from one side of the city to the other.
  • Roofs, canopies and a large patch of land on the
    edge of the city will be given over to solar
    panels. The city is already testing 41 types of
    panel from 33 different manufacturers, to see
    which work best in the sunny, hot and dusty
    desert conditions. There will also be the odd
    wind turbine, solar water-heaters and small
    waste-to-energy facilities (the citys planners
    do not like to call them incinerators). (quote
    from The Economist)

6
  • Urban Planning and GOVERNO DEL TERRITORIO
  • Legislative competences
  • In Italy the main law is 17 August 1942, no.
    1150, Legge Urbanistica
  • regional laws
  • who has the legislative power?
  • Constitution
  • diritto urbanistico as part of administrative
    law same concepts, tools, principles (see infra)

7
The legislative and administrative competences on Urban Planning between State and Regions. The relevant Public Administrations involved.
8
  • Art. 117 Cost.
  • Legislative power belongs to the state and the
    regions in accordance with the constitution and
    within the limits set by european union law and
    international obligations
  • Concurring legislation applies to the following
    subject matters
  • land-use regulation and planning concurring
    legislation legislative powers are vested in the
    Regions, except for the determination of the
    fundamental principles, which are laid down in
    State legislation

8
9
art. 117 Cost
  • C. 6 the power to issue by-laws is vested in the
    state regarding all matters where it has
    exclusive legislative power, insofar as it does
    not devolve such power to the regions. The power
    to issue by-laws is vested in the regions in any
    other matters.
  • Municipalities, provinces and metropolitan cities
    have regulatory power with respect to the
    organization and the fulfillment of the functions
    assigned to them

9
10
Powers and functions
  • the relationships among various local bodies
    revised by the constitutional amendment of 2001,
  • Metropolitan Area (Citta metropolitana) has been
    added as a new form administrative division
  • The new art. 118

11
Public functions
  • (1) Administrative functions belong to the
    municipalities except when they are conferred to
    provinces, metropolitan cities, regions, or the
    state in order to guarantee uniform practice the
    assignment is based on the principles of
    subsidiarity, differentiation and adequacy.(2)
    Municipalities, provinces and metropolitan cities
    have their own administrative functions and, in
    addition, those conferred to them by the law of
    the state or the region according to their
    respective fields of competence.(3) State law
    provides for forms of coordination between the
    state and the regions in the matters referred to
    in letters b) and h) of Art. 117 it also
    provides for forms of understanding and
    coordination in the matter of the protection of
    the cultural heritage.(4) State, regions,
    metropolitan cities, provinces and municipalities
    support autonomous initiatives promoted by
    citizens, individually or in associations, in
    order to carry out activities of general
    interest this is based on the principle of
    subsidiarity.
  • Which is the appropriate level of government
    planning activity
  • See infra

12
The tools Power (versus right immunity)
  • The possibility to prevail over rights
  • The possibility to produce some juridical changes
    with regard to the individual situations
  • Create, eliminate and modify subjective positions
  • It is a static moment
  • It precedes the act
  • The features of the power are the same of the
    final act
  • Authorities can use only powers conferred by the
    law
  • Each limit is a protection for citizens

13
The tools Organization
  • Function the amount of power who does what
  • Art. 118
  • Administrative functions are attributed to the
    Municipalities, unless they are attributed to
    the provinces, metropolitan cities and regions or
    to the State, pursuant to the principles of
    subsidiarity, differentiation and
    proportionality, to ensure their uniform
    implementation.
  • Municipalities, provinces and metropolitan cities
    carry out administrative functions of their own
    as well as the functions assigned to them by
    State or by regional legislation, according to
    their respective competences.
  • State legislation shall provide for co-ordinated
    action between the State and the Regions in the
    subject matters as per Article 117, paragraph
    two, letters b) and h), and also provide for
    agreements and co-ordinated action in the field
    of cultural heritage preservation.
  • The State, regions, metropolitan cities,
    provinces and municipalities shall promote the
    autonomous initiatives of citizens, both as
    individuals and as members of associations,
    relating to activities of general interest, on
    the basis of the principle of subsidiarity

14
The tools Procedure
  • Proceeding set of moments, acts and operation
    which leads to the final act
  • It is where the activity is carried out and
    unfolded.
  • It allows us to perceive that a power is exerted
    and how it occurs
  • It guarantees a judicial review thanks to the
    rules that must be complied with
  • Tool for identifying relevant interests
    (discretionary power versus binding activity)
  • Discretionary power
  • L. 241/1990

15
l. 241/1990
  • Art. 1 1. Administrative activity shall pursue
    the objectives established by law and shall be
    managed according to criteria of economy of
    action, effectiveness, impartiality, publicity
    and transparency, in accordance with the
    specifications laid down both by the present law
    and by the other provisions governing individual
    procedures, as well as by the principles
    established by the Communitys legal order

16
Art. 3
  • 1. Save in the cases provided for under
    subsection 2, every administrative measure,
    including those regarding administrative
    organisation, staff and the conduct of public
    competitions, must include a statement of
    reasons. The grounds must set out the factual
    premises and the legal reasoning that determined
    the administrations decision, in relation to the
    outcome of the preparatory fact-finding
    activities.
  • 2. Grounds shall not be required for legislative
    acts or those of a general nature.

17
Legge 7 agosto 1990 n. 241
  • Participation and disclosure
  • Participation. 2 faces of the coin
  • the right to be heard and the right of access to
    information represent the two aspects of
    participation.
  • In particular the right to enter the procedure
    by requesting the disclosure of administrative
    documents and by submitting and expressing
    written opinions and comments.
  • Art. 9-10
  • (Interventions during a Procedure)
  • 1. Any party having either a public or private
    interest, as well as those members of
    associations or committees having divers
    interests, who may be adversely affected by a
    measure, shall have the right to intervene during
    a procedure.
  • Art. 10 (Rights of those participating in the
    Procedure)
  • 1. The parties referred to in section 7 and
    those intervening pursuant to section 9 have the
    right
  • a) to inspect the procedures documents
  • b) to present documents and written arguments,
    which the administration has the duty to evaluate
    provided that they are pertinent to the
    subject-matter of the procedure.

18
Art. 13
  • 1. The provisions contained in the present
    chapter shall not apply to those public
    administrative activities that are directed at
    instruments having a legislative, general
    administrative, planning or programming function.
    Such acts shall continue to be governed by the
    specific rules regulating their formation.
  • 2. The said provisions shall likewise not apply
    to taxation procedures. Such procedures shall
    equally continue to be governed by the specific
    rules regulating them

19
Powers
  • Remember
  • The possibility to produce some change with
    regard to the individual situation
  • Create, eliminate and modify this subjective
    position
  • It is the previous moment of the act which is the
    effect of powers exert
  • For this reason the features of the power are the
    same of the ones of the final act

20
licences
  • 1) there is a previous situation of advantage
  • 2) law precludes to use it in a specific way
  • 3) limits might be removed by authorization
  • 4) only if compatible with public interest
  • Planning permission granted by municipalities

21
Permit and DIA
  • Building permit
  • administrative licence issued by the competent
    local administration committee to allow the
    contractor to begin the construction in
    compliance with the relevant town planning
    provisions. 
  • DIA(Scia)
  • the contractor must merely communicate to the
    local competent administration committee its
    intention to begin the construction works. If the
    administration committee fails to respond within
    30 days from the request, this is an effective
    approval and the contractor can begin the
    construction works. 

22
Planning powers
  • To give order
  • The purpose to integrate the physical and
    biological resources in a compatible use,
    coordinating social, environmental, cultural,
    economic legal and political demands and
    interests
  • Enlightenment idea
  • Planning and l. 241/1990
  • Art. 13 e participation
  • Consultation - procedures for assessing public
    opinion about a plan the means of obtaining the
    views of affected neighbours or others with an
    interest in the proposal

23
Planning powers the procedure
  • Adoption Confirmation/approval
  • participation
  • Many sectors Environment, Urban Planning, Land
    use planning, Natural Beauty, Economics,
    Landscape, Cultural Heritage, Industrial
    Development etc.

24
Traditional distinction
  • Town planning it balances different interests,
    setting the land compatibility
  • It aims at arranging the use and allocation of
    land for competing uses in order to attain
    optimal, maximum and efficient land use for the
    generality of the community
  • Land planning (state) it concerns various top
    interests unable to be balanced (such as
    landscape, environment, grounds protection,
    etc.) and sometimes protected by sectors plans
  • For instance the primary purpose is the
    conservation and enhancement of natural beauty
    including flora, fauna, geology and landscape
  • Plans providing the identification, delimitation
    and illustration of areas decreed of significant
    public interest
  • Hydrographic Basins Plan , Park Plan atc.

25
The antinomies
  • Many plans and the solutions criterion of the
    antinomies
  • solutions
  • 1) Plans Hierarchy
  • 2) Interests Hierarchy

26
Follows powers typologies
  • Powers to bind (oblige and compel)
  • Legal limitations landscape constraint
    (Galasso) and administrative ones (generally by
    means of plans)
  • Absolute or relative bonds
  • The problem of the compensation
  • Classification of the land zoning
  • Sanctions
  • Control powers

27
  • The first purpose of the plan is zoning
  • The plan identifies different sections, which
    are devoted to different purposes i.e.
    residential, industrial, commercial
  • respecting standards issued by State (dpr
    1968/1444)
  • There are various 'use classes', and change of
    use to a different use class generally requires
    planning permission
  • Zoning is said to be unfair because it benefits
    some landowners at the expense of others
  • once more the problem of the compensation

27
28
Constitutional provisions
  • Art. 42,
  • Property is public or private. Economic assets
    belong to the State, to public bodies or to
    private persons. Private property is recognised
    and guaranteed by laws, determining the manner of
    acquisition and enjoyment and its limits in order
    to ensure its social function and to make it
    accessible to all.
  • Private property, in cases determined by law and
    with compensation, may be expropriated for
    reasons of general interest
  • The law establishes the rules and limits of
    legitimate and testamentary succession and the
    State's rights to the heritage

29
Other Provisions
  • art. 2 Cost. The Republic recognises and
    guarantees the inviolable human rights, be it as
    an individual or in social groups expressing
    their personality, and it requests the
    performance of the unalterable duty to social,
    economic, and political solid
  • Art. 3, c. 2, Cost. It is the duty of the
    Republic to remove all economic and social
    obstacles that, by limiting the freedom and
    equality of citizens, prevent full individual
    development and the participation of all workers
    in the political, economic, and social
    organization of the country

30
Other contents
  • Designate as well Infrastructure - permanent
    resources serving society's needs, including
    roads, sewers, schools, hospitals, railways,
    communication networks

31
Local planning authoritie the pivotal role of
the Municipality
  • Piano Regolatore Comunale (General Town Plan )
  • Others plans
  • Territorial Coordination Plans
  • Town Plans (i.e. the General Town Plan and the
    Joint General Municipal Plan)
  • Urban Action Plans
  • Structure Plan - statutory plan setting out key
    strategic policies
  • It provides the framework for more detailed
    policies in local plan

32
  • Constitutional Court decisions
  • sent. 196 (par. 20)
  • Sent. 303 (par. 11 e ss. pag. 65 ss.)
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