Analysis of Ruling No. 9448/2024: Jurisdiction and Limits in Wind Turbine Construction

The recent Order No. 9448 of April 9, 2024, offers relevant insights into jurisdiction in disputes between private individuals and concessionary companies for public utility works, particularly in the context of wind turbine construction. The main issue concerns a property owner's right to enforce legal distances from a structure, in this case, a wind turbine, and compensation for damages arising from such a violation.

Jurisdiction of the Ordinary Judge

The Court has established that disputes between a property owner and a concessionary company fall under the jurisdiction of the ordinary judge. This is because the company was sued not as a public entity, but in its capacity as the construction company and owner of the wind turbine. The decision emphasizes the importance of distinguishing between public interest roles and civil liability roles in the case of works that, while of public utility, may infringe upon the property rights of private individuals.

Generally. The dispute, initiated by the owner of a property against a private company holding a concession from the municipal administration for the construction of a wind turbine, concerning the claim for restoration of legal distances between the property and the structure located on the adjacent land, as well as compensation for damages, falls under the jurisdiction of the ordinary judge, as said company is sued not as an administration or concessionaire carrying out the public utility service of energy production and transport on the national electricity grid, but as the construction company and owner of the structure, and as such responsible for the prejudice caused by it, "statically," to the neighboring third party; nevertheless, the qualification of the use of renewable energy sources as an activity of public interest and public utility and the equivalence of related works to those declared unavoidable and urgent for the purposes of applying public works laws (provided for by art. 1, paragraph 4, of law no. 10 of 1991) preclude the judge from ordering, in case of acceptance of the claim, restoration to the previous state, with the consequence that the protection due to the owner who has suffered the violation of their right remains limited to the recognition of the indemnity already provided for by art. 46 of law no. 2359 of 1865 (now by art. 44 of Presidential Decree no. 327 of 2001), considering the suitability of the choices made by the administrative authority regarding the location of the work to restrict the subjective positions of the neighboring owner and the prohibition for the ordinary judge to intervene on the administrative act, imposed by art. 4 of law no. 2248 of 1865, annex E.

Implications of the Ruling for Neighboring Property Owners

One of the most significant consequences of this ruling concerns the limitation of protection for the rights of neighboring property owners. In fact, although the ordinary judge may recognize damages, the possibility of ordering the restoration of the works to their previous state is excluded due to their qualification as public utility works. This implies that property owners, in similar cases, will only be able to receive compensation, as provided for by art. 44 of Presidential Decree no. 327 of 2001, without the possibility of restoring the violated legal distances.

• Ordinary jurisdiction for disputes with private parties.
• Limitations on property owners' rights due to the public utility of the works.
• Indemnity as the sole form of compensation for damages suffered.

Conclusions

In conclusion, Order No. 9448/2024 represents an important reference point for understanding the legal dynamics related to public utility works and their impact on property rights. The ruling highlights the need for a balance between public interest and the safeguarding of private rights, emphasizing how administrative choices can limit the possibilities for action for neighboring property owners. This raises questions about the future of renewable energy works and the protection of individual rights in similar contexts.