STREET ART AND LAW: THE COUNCIL OF STATE SUSPENDS THE ORDER OF REMOVAL OF A WALL PAINTING UNTIL A NEW ASSESSMENT OF ITS LANDSCAPE COMPATIBILITY IS MADE

02/03/2021

With judgment no. 7872 of December 10, 2020, the Council of State, partially overturning the judgement no. 46 of March 20, 2018 rendered by the Piedmont Regional Administrative Court, provisionally suspended the execution of the order of demolition of a work of street art issued by the Municipality of Avigliana, having the latter denied the request for assessment of the mural’s landscape compatibility without a real assessment of merit and on the basis of purely formalistic arguments.

 

The case originates from the realization of a wall painting by a famous Spanish street artist on the wall of a building located in an area subject to environmental and landscape restrictions according to the provisions of the Code of Cultural Heritage and Landscape. Following the demolition order issued by the competent local administration, the owner of the building interested by the mural requested, on the one hand, the declaration of the work’s historical and artistic interest and, on the other hand, the verification of its landscape compatibility. Both requests were rejected.

In this scenario, the claimant appealed to the Regional Administrative Court against the demolition order issued by the Municipality of Avigliano and the refusal to issue a declaration of landscape compatibility, but not against the second refusal relating to the declaration of historical and artistic interest of the mural. The Regional Administrative Court, with the above mentioned order, rejected both appeals. Hence the appeal to the Council of State.
The first three grounds of appeal, with which among other the application of art. 50 of the Cultural Heritage Code was requested, according to which the removal of frescoes and graffiti is prohibited without the prior authorization from the competent authorities, were rejected as the appellant’s argument, based on the alleged artistic value of the work in question, was irrelevant for the purposes of the procedure, “in which only the construction, urban planning and landscaping aspects of the work are taken into consideration”, as the appellant had not contested, as seen, the decision to deny the request to declare the mural of historical and artistic interest. This was held despite that the arguments put forward by the appellant regarding the historical and artistic interest of the work were considered by the Council of State as “suggestive”.

On the other hand, the fourth ground of appeal, regarding the denial of the request for landscape compatibility of the work, was upheld. On this point, the Council of State shared the appellant’s claim that the Regional Administrative Court was wrong in not considering relevant the fact that the municipal administration, in denying the request of the interested party, had not previously involved the superintendence authority. On this point, the Council notes that pursuant to art. 146 of the Code of Cultural Heritage and Landscape “the Superintendence no longer exercises a review of mere legitimacy on the authorization act adopted by the Region or the sub-delegated entity […], but an assessment of ‘administrative merit’, an expression of the new powers of co-management of the landscape constraint”. The superintendence should have therefore been involved by the Municipality before issuing its decision, and this regardless of the presumed failure of the interested party to comply with the request for document integration made by the municipal administration which – incidentally – was also judged contrary to the principles of economy, effectiveness and collaboration of the public administration since the Municipality already had all the elements to make an assessment on the merit of the request.
On the basis of these considerations the Council of State, in upholding the appeal against the refusal to grant a declaration of landscape compatibility, ordered the authorities to carry out a new assessment of the compatibility of the mural with the constraints on the area where the work was made, after having consulted the Superintendence. Consequently, in application of art. 167 of the Cultural Heritage Code, in the event of a positive assessment of the landscape compatibility, the measure of restoration of the area – and therefore the demolition of the mural – will have to be replaced by the application of a fine. Until such reassessment, in any case, the demolition order must be considered suspended.

The judgment in question is of particular interest as it deals, albeit indirectly, with the increasingly topical issue of how to resolve the balance between various legally protected assets, i.e. the private rights of property and copyright (in whose scope of protection murals certainly fall) on the one hand and the public interest of environmental and landscape protection and the consequent legislation of the Code of Cultural Heritage and Landscape.
Giorgio Rapaccini