Based on Article 21 of Law-Decree 6 November 2021, No. 152 (already mentioned above), the Court of Tuscany rejected the appeal against the local administration considering the contested measures as lawful, pointing out that, inter alia, the soil consumption does not represent a “significant damage” unless it results in a destruction of the ecosystem and the species that populate it, or, in the circular economy perspective, it leads to significant inefficiencies in the use of the resource. According to the Court, the construction activity concerning new buildings does not represent, under the soil consumption point of view, an activity, as such, contrary to the “DNSH” principle in the light of Regulation (EU) 2139/2021, as amended. Fifthly, in several decisions, it has been stated that, according to the relevant legal framework, the DNSH assessment encompasses a set of assessment that implementing bodies are called upon to carry out, not only ex ante, namely before starting the works, but also in itinere and ex post, namely during and after their realization. Moreover, it has been underlined that such works are subject to the supervision of public administrations.77 Finally, in a case, already mentioned78, the applicant (Comune di Serra San Quirico) brought an action to contest the validity of the (positive) Environmental Impact Assessment (EIA) and of the DNSH, with particular reference to the protection of drinking water given the presence of groundwater bodies. According to the local administration, a violation of both the precautionary and the DNSH occurred, as for the realization of the work under scrutiny at least the reasonable certainty in terms of adverse effects on the relevant site should have been reached. In such case, an interesting argument is invoked as a defence in proceedings by parties and used by the supreme administrative Court to uphold the respect of the DNSH. In particular, it has been outlined that there is no infringement of the environmental laws and regulations (including those concerning the DNSH) whether the work or the project under assessment is proposed on an area already affected by important road infrastructures, like existing railway lines/paths used for decades or mining activity for the production of calcium carbonate. In such cases, the work to be realized or the project to be developed in the same territory is considered as lawful.79 77 Council of State, Division VI, judgment 23 December 2024, No. 10317; Regional Administrative Court of Lazio, Rome, Division III, judgment 4 December 2023, No. 18141, esp. par. 16.2.4b; Regional Administrative Court of Lazio, Rome, Division III, judgment 20 November 2023, No. 17241; Regional Administrative Court of Lazio, Rome, Division III, judgment 24 July 2024, No. 15136. 78 Council of State, Division IV, judgment 5 August 2024, No. 6966, point 4. 79 Council of State, Division IV, judgment 5 August 2024, No. 6966, point 5.2. 124 FRANCESCO GASPARI
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