By Enzo Gambin and Sonia Zivani
Italian legislationDepression Andextermination from olive It has experienced a profound development that reflects the changing social and legal perception of the olive tree, from an agricultural resource to an identifying element of rural landscape.
By the lieutenant to the law of 1955
The first significant measure for olive growth dates back Decree No. 1117 of July 26, 1916 of the LieutenantWhat prohibited the falling and removing of olive trees and vines from the prefect without prior approval. In Italy in the war, the olive tree was well recognized as strategic well, the slow growth of which required special protection.
The Was confirmed From subsequent legislative interventions Until 1955 (Including legislative decree No. 1490/1919, legislative decree No. 21 of 1945 June 377, legislative decree No. 30 of the provisional head of state of 1947 December 1523 and finally law No. 29 of 1955 May 463). The latter represented an organic synthesis of the previous provisions, Confirmation of the authorization request and strengthening public control On the agricultural goal of the Olive Grove.
These regulations, which are no longer independent of one another, but are integrated into regional legislation, represent the historical basis of olive tree protection, even if there are no landscape or environmental restrictions.
However, it should be remembered From the 70s and 80sWith the regionalization of agriculture and landscape, many regions have issued their own regulations, to which the provisions of the common agricultural policy (CAP) and rural development plans (RDP) are added.
The olive tree in the Citizens' Code and in agricultural legislation
According to art. 2135 of the Civil Code, The olive tree is one of the agricultural company's investment goodsPrivate property (Article 832 of the Civil Code) can be restricted by special provisions if there are general interests such as environmental or landscape protection. In this sense, the case law has legitimized significant restrictions on the freedom of the farmer if the collective interest requires this.
Under the relevant decisions, we would like to point out that the State Council (Section VI, April 24, 2012, No. 2435), which confirmed this Legitimacy of the refusal to root an olive grove in an area that is subject to landscape restrictionseven in the presence of a business plan.
The turning point of the Galasso Act (L. 431/1985)
The so-called galasso law led the concept of “Traditional agricultural landscape” And has determined the requirement of landscape permit for a significant modification in hilly, coastal and agricultural areas.
In particular, The olive grove has become an element of the protected landscapeAnd the regions were commissioned to create regional landscape plans (PPR). The parliamentary debate which preceded the approval of the law (Chamber of MPs, literal recording of session No. 676 of June 13, 1985) Emphasizes how the olive tree was perceived not only as a harvest, but also as a cultural and identity sign of the territory.
The code for cultural heritage and landscape (legislative decree 42/2004)
Protection is consolidated with the legislative decree 42/2004: Article 131-146 regulateLandscape permit and art. 142, letter h) It also protects by legally traditional agricultural landscapes with permanent plants, including olive grovesThe landscape permit (Article 146) is now mandatory for each fur in a protected area, even if the olive tree is sick or unproductive. A technical report is required by a qualified agronomist or forestry expert.
Regional landscape plans and local restrictions
The regions have expressed the protection principle with different levels of detail. Regional landscape plans This can contain restrictions on historical olive groves, terraces, dry stone walls, re -adjustment obligations in the event of uprooting and agronomic landscape ratings even without specific restrictions.
The case of super -intensive facilities: a regulatory gap?
In recent years, super -intensive olive groves have been expanded, which are characterized by high density, mechanized varieties and a limited economic lifespan. These orchards, which are designed for intensive short cycle production, raise unanswered questions about protection. Are you also subject to the landscape restrictions specified in the legislative decree 42/2004? Does your distance require a landscape permit after the production cycle, even if you lack the historical or aesthetic value? Can a short cycle fruit garden be seen as a traditional olive grove for protective legislation? This is a gray area in which national legislation is silent.
Some regions have tried to distinguish between historical olive groves and new plantings such as in Tuscany and the horn, but there is no common definition or a clear legal framework. This silence risks to create unequal treatment and uncertainties in implementation, especially in contexts of the accelerated agricultural transformation.
Health exceptions: the Xylella case
The Xylella Fastidiosa epidemic required emergency interventions: legislative decree 91/2014 and legislative decree 51/2015 authorized obligatory equipment, also in limited areas. However, Technical documentation is required This demonstrates the phytosan danger and communication with the responsible bodies (superintencies, communities, etc.).
In this regard, we present the decision of the regional administrative court of Lecce, Section I, from April 2, 2019, No. 578, which, as a compulsory order mandate, in view of an opposite opinion of the landscape, cited the principle of prevalence of public health and phytosiitic protection.
The monumental trees
With the law 10/2013 and the ministerial decree of November 10, 2021 DieNational list of monumental trees. Many centuries -old olive trees are mainly included in hardnessPresent Tuscany E Sardinia. Every intervention on these copies is subject to municipal and regional approval, and is subject to The restriction is often absolute.
Conclusions
Intervention with olive groves can currently be subject to Three levels of the disciplineOne in Agricultural sectorAccording to the bourgeois law, the upper limit and the EU regulations, the intervention is generally free, with the exception of restrictions. We then have a second in LandscapeAccording to the legislative decree 42/2004, the Galasso Act and the PPR are required. In the end we have a third in Environmental or monumental areaAccording to the law 10/2013 and the decree of the minister in 2021, absolute restrictions or very strict authorization regime may apply.
In the national agricultural panorama, The olive tree represents an almost clear case due to the intensity of the regulatory restrictionsNo other construction harvest, with the exception of some historical vineyards such as that of Prosecco Docg, subject to landscape plans, subject to such complex and multi -stage regulations. Even the case law has partially recognized the risk of excessive restrictions. The state judgment council No. 1556/2016 observed this “Landscape protection cannot go so far to cancel the right to manage property by the owner.”A more careful balance between public interests and economic rights.
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