Urban planning and regulations on woods for the Sicilian Region
Forestry legislation and its protection is a regional competence, in accordance with the provisions of art. 14 of the Special Regional Statute, which among the competences has exclusive legislation, in the field of Agriculture and Forests and Urban Planning.
The three environmental / forestry, urban planning and landscape subjects are actually intimately connected, but the absence of updated texts to the innovations that have occurred over time does not allow a clear definition of the problem and forces us to deal with the three topics (definition of woods, urban planning regulations in wooded or neighboring areas and landscape protection of the woods) separately, identifying the points in common.
Until 12.02.2021, date of publication and entry into force of the new regional Consolidated Law on urban planning, the Sicilian region imposed restrictions on buildings in the Respect of the woods bands with the L.R. 76/78 (Provisions for the development of tourism in Sicily) with art. 15 letter e) which states: the buildings must move back 200 meters from the edge of the woods, the forest strips and the boundaries of the archaeological parks. Subsequently with the L.R. 15/91, the Municipalities are obliged to draw up the Forestry Agricultural Studies in application of the L.R. 76/78.
The forest constraint thus conditions the drafting of municipal PRGs and the technicians found themselves faced with a generic and “subjective” definition of forest, resulting in different situations in the various municipal territories.
1. Definition of forest in force
The legislative matter in question was reorganized for the first time with the Regional Law 16/96, which introduces the definition of forest, which will then be used in Sicily for a long time, as a reference both for urban planning regulations, ultimately of competence municipal within the PRG (LR 15/91, which obliges the municipalities to draw up Forestry Agricultural Studies in application of LR 76/78), and for those of landscape protection, competence of the Provincial BBCCAA Superintendencies (Galasso Law and Legislative Decree no. 42 of 22 January 2004).
The Regional Law 16/96, has undergone numerous changes and additions over time and until 12.02.2021 is presented as a coordinated text with:
the Regional Law 13/99, which will introduce the definition of the criteria for the identification of rock formations, riparian and Mediterranean scrub; definition subsequently issued with the homonymous Decree of the President of the Region of 06.28.2000;
the Regional Law 14/06, which with the introduction of paragraph 5bis of art. 4 refers to the national legislation for the definition of forest: (Regional Law 14/06 – 4 paragraph 5bis: although not otherwise provided, the definition of forest referred to in the current national legislation is also applied in the Sicilian Region).
Art. 4 paragraph 5bis of the Regional Law 14/06 introduces a new definition of Bosco, referring to the current national legislation, specifying however that the application of the national legislation is conditional on the case of not having been otherwise provided.
To date, the current national legislation is Legislative Decree 34 of 03/04/2018 “Consolidated law on forests and forestry chains” (repealing the previous definition of Legislative Decree 227/01, to which in 2006 the LR 14/06), which defines the forest at national level in art. 3 paragraph 3 and returns to give competence to the regions, on the basis of paragraph 4:
– For matters falling within the exclusive competence of the State, the areas covered by arboreal forest vegetation, associated or not with shrubs, of natural or artificial origin in any stage of development and evolution, with an extension of no less than 2,000 square meters, are defined as woods, average width not less than 20 meters and with forest tree cover greater than 20 percent.
– The regions, to the extent of their competence and in relation to their own territorial, ecological and socio-economic needs and characteristics, can adopt an integrative definition of forest with respect to that dictated in paragraph 3, as well as integrative definitions of areas similar to woods and areas excluded from the definition of forest referred to, respectively, in articles 4 and 5, provided that the level of protection and conservation thus ensured to forests as a fundamental safeguard of the quality of life is not decreased.
With the application of paragraph 3, therefore, in the Sicilian Region, the minimum area for the definition of forest goes from 10,000 m2 (1 Ha) to 2,000 m2 with a minimum forest tree cover of 20%.
With the following paragraph 4, the legislator specifies that the Regions can maintain or increase the level of national protection provided for in paragraph 3, adopting supplementary definitions of forest referred to in paragraph 3, as well as supplementary definitions of areas similar to woods and areas excluded from the definition of woods referred to, respectively, in articles 4 and 5 of the same of which the two essential points for the modification of the boundaries of the wooded areas are reported:
e) clearings and all other surfaces of less than 2,000 square meters that interrupt the continuity of the forest, not recognized as permanent meadows or pastures or as meadows or tree pastures;
f) the linear infrastructures of public utility and the respective areas of relevance, even if they are more than 20 meters wide that interrupt the continuity of the forest, including forest roads, power lines, gas pipelines and aqueducts, located above and below ground, subject to periodic interventions for the containment of vegetation and ordinary and extraordinary maintenance aimed at guaranteeing the efficiency of the works themselves and which do not require further authorizations.
Summarizing therefore in the Sicilian Region, taking into account that:
the L.R. 14/06 with art. 5bis, introduces the definition of national forest only to the extent not otherwise provided, and that
the current Legislative Decree 34/2018, in art. 3 paragraph 4, refers to the regions supplementary definitions of forest, assimilated areas and excluded areas, in relation to the territorial, ecological and socio-economic needs and characteristics of each region, may adopt supplementary definitions,
it will be necessary to resort to the national definitions for the forest, the clearings, the road infrastructures, which the region has not redefined at the regional level, as they are already sufficiently restrictive, and to the regional definitions for the Mediterranean scrub, the riparian formations and the rock formations.
The latter three (Mediterranean scrub, riparian formations and rock formations), in fact, are defined with the Decree of the President of the Region dated 28.06.2000 “Criteria for the identification of rocky, riparian and Mediterranean scrub formations.”, In application of what arranged by the LR 13/99, cited above, among the laws that make up the regional text in force on forestry (LR 16/96 and subsequent amendments and additions).
Having made the regulatory definition of wood and areas similar to wood not already defined at regional level unambiguous, with the adoption of national definitions, and on the basis of the regional definitions of Mediterranean scrub, riparian formations and rock formations, the areas with these characteristics are identifiable and must, on the one hand, be transposed by the rules on urban planning in order to allow the application of building regulations on agricultural land and on the other hand be subject to the rules of landscape protection.
1.1. Woods, forests and woods and Urban Planning Regulations
The Urban Planning Rules, also of exclusive regional competence, have been updated in Sicily with the L.R. 19 of 13 August 2020. The law, challenged in October 2020 by the Council of Ministers, is fully amended in order to overcome the problems that have previously emerged, and on 12.02.2021 it is published in GURS SO n. of 12.02.2021, the Sicilian Region L.R. 3 February 2021, n. 2. Corrective action to the regional law 13 August 2020, n. 19 laying down rules on the government of the territory.
The correct TU is a modern text based on the environment and social participation that introduces a sustainable concept of participatory territorial planning and repeals, after 40 years of application, the L.R. 71/78.
The TU introduces the urgency and obligation of drafting the PTR (Regional Territorial Plan), of which it defines the contents and the drafting and approval powers. Therefore, the legal validity of the Provincial Territorial Plans lapses, a choice actually desired by the National Government at the time of the appeal.
It also introduces substantial changes to the responsibilities and operations of the drafting and approval of the former General Regulatory Plans, redefined by the TU General Urban Plans (PUG), introducing: naturalistic studies, hydraulic compatibility studies and archaeological ones, among the mandatory studies to attach to the PUG, in addition to the agricultural-forestry and geological ones.
In the context of wooded areas, the TU amends, once again, Law 16/96 coordinated with its subsequent amendments, resulting in very important changes in this area:
The definitive affirmation of the application in the region of Legislative Decree 34 of 3 April 2018 (Law 16/96, as amended by Regional Law 14/06, instead referred to Legislative Decree 227/01, now repealed) (art.37 paragraph 4 LAW 3 February 2021, n.2);
The repeal of art. 10 of the same updated and coordinated law 16/96 (art.37 paragraph 5 L.R. 3 February 2021, n.2);
The deletion of the words “from the limit … forest” of letter e) paragraph 1 of art. 15 of LR 76/78 (art.37 paragraph 6 LAW 3 February 2021, n.2).
From the combined reading of the new urban planning law and the texts modified by it, the disappearance of the RESPECT BANDS of woods and similar areas and the concept of absolute inedifiability within woods and similar areas, which becomes the possibility of building some works and activities, subject to compliance with the contents of the Provincial Landscape Plans, but with the specific authorization of the provincial Superintendencies.
The regional choice confirms the decision to adhere, as far as possible, to what is already in force in the rest of the regions of Italy.
1.2. Woods, forests, forests and landscape protection
The Legislative Decree 22 January 2004, n. 42 – “Code of cultural heritage and landscape” – in article 134, relating to landscape heritage, in paragraph 1, lett. b), provides for the landscape protection of “areas protected by law”, and in the same paragraph, lett. g), provides that until the approval of the landscape plan, “the territories covered by forests and woods, even if crossed or damaged by fire, and those subject to reforestation restrictions, as defined by ‘Article 2, paragraphs 2 and 6, of the Legislative Decree 18 May 2001, n. 227 “.
Article 142 therefore refers to the notion implemented by the national legislator with Article 2 (“Definition of forest and wood arboriculture”) of Legislative Decree no. 227/2001, repealed by Legislative Decree no. 34/2018.
For the purposes of Landscape Protection, the following art. 143 specifies what must be contained within the Landscape Plans in this area in paragraph 1 letter c), specifying:
c) recognition of the areas referred to in paragraph 1 of article 142, their delimitation and representation on a scale suitable for identification, as well as determination of use requirements aimed at ensuring the conservation of the distinctive characteristics of said areas and, compatibly with them, the enhancement.
For the purposes, therefore, of a complete binding survey of the territory, in terms of wooded areas, the Provincial Territorial Landscape Plan (PPTP) of reference should be consulted with the available maps.
The maps attached to the PPTPs are drawn up on the basis of information derived from the forest inventory, and for art. 5 of LR 16/96 as amended by LR 14/2000, are the Municipalities that have the obligation to transmit, to the peripheral offices of the regional forest department, such information, providing the parcel list of land considered wooded pursuant to article 4, paragraph 2, which are part of the municipal assets.
The forest inventory has as its objective the collection of information on the quantity and quality of forest resources, and on the characteristics of the territory occupied by forest formations.
The most recent addresses in the inventory field go in the direction of a continuous monitoring of forest resources, promoting the inventory as a tool for collecting information at constant intervals, and not episodic. All this in order to verify the sustainability of the use of forest resources.
It is also underlined that the LR. No. in support of the PRG they delimited the protected areas.
From the information available to us, very few municipalities have complied with the new regional and national regulations, and the lack of delimitation of wooded areas in municipal PRGs has created, up to now, a conflict in the implementation of the landscape plan of the Sicilian Region which, to circumscribe the wooded areas was in fact “built” on the basis of the forest inventory, without the necessary modifications of the Municipalities, in application of the current legislation.
Also in this context, therefore, the new Consolidated Law on Urban Planning, introducing the PUG and the instruments of consultation with which it is drawn up, could intervene and modify a situation that has been perpetuated continuously since 2006: the almost total non-compliance of the Municipalities in the required updates, in the revisions of the Agricultural Forestry Studies of the PRG, to which are added the procedures of indefinite duration for the acquisition of the SEA of the Variations to the PRG.
We await the DdL currently in the classroom, which will define some specific elements of the consolidated text, including the changes in urban use in the agricultural area, and whose current text is available at the following link.
Natalia La Scala