McDonald's will not be built at the Baths of Caracalla. The ruling of the Council of State

The McDonald’s at the Baths of Caracalla will not happen. The project that was launched in 2019 and aimed at the construction of a fast food restaurant in the area of the former Eurogarden, near the Aurelian Walls and close to the Terme di Caracalla complex, has been definitively shelved following the Council of State’s ruling 08641/2021 rejecting the appeal filed in 2020 by Mcdonald’s Development Italy Llc against the Lazio Region, Roma Capitale and the Ministry of Cultural Heritage, which in 2019 had annulled the opinion of the Superintendence of Rome.

As a result, the Lazio Regional Administrative Court, in its ruling 5,757 of 2020, had blocked work on the construction of the McDonald ’s and related parking lot on Viale Guido Baccelli.McDonald’s had appealed the Regional Administrative Court’s ruling, and following the appeal, both the Municipality, the Ministry of Cultural Heritage, and Codacons had joined the proceedings, and a decision on the case was set for December 21, 2021.

The Council of State noted that the project for the construction of the fast food restaurant, which would be located in a building near the archaeological area, “was presented as a conservative restoration intervention, with a change of use, from commercial/services (offices) to public exercise of the building, which would give rise to the redevelopment of the building and a general environmental rehabilitation of the neighboring area of intervention; in essence, it is planned to build a restaurant of the eponymous chain.” The project had initially received favorable feedback from the Lazio Region, the Special Superintendence for the Colosseum and the Archaeological Area of Rome of the MiBAC in relation to archaeological profiles, and the Capitoline Superintendence, which noted, however, that since the area falls within an area with a Unesco constraint, for works with external relevance, it was necessary to acquire the opinion of the Special Superintendence for Archaeology, Fine Arts and Landscape of Rome (which gave a favorable opinion). A favorable opinion was also given by the Urban Planning and Implementation Department - U.O. Building Permits - Landscape Authorization Office of the Municipality of Rome, according to which the works did not need the Landscape Authorization as the protection rules of the General Management Plan of Historic Settlements inscribed in the Unesco list would be applied.

These facts date back to late 2018. Subsequently, in July 2019, the managers of the property were notified of a determination to suspend the work by the General Directorate of Archaeology, Fine Arts and Landscape of the Mibact: in fact, the ministry ordered the ex officio cancellation, in self-protection, of the opinion rendered by the Special Archaeology, Fine Arts and Landscape Superintendence of Rome. This initiative, taken by the General Directorate for Archaeology, Fine Arts and Landscape, was justified on the grounds that “the area in question falls entirely within the perimeter of the PTP 15/12 ’Valle della Caffarella, Appia Antica and aqueducts’, approved by Lazio’s DCR no. 70 of February 10, 2010, and that the said area is subject to the ’Particular prescriptions for areas of oriented protection’ referred to in sub-area TOc.3, which state that ’in subarea TOc.3 provides for the overall redevelopment of the entire sub-area (...); therefore, to date, any work that would affect the area in question would be considered unauthorized, as it lacks the landscape authorization referred to in Article 146 of Legislative Decree no. 42/2004, pursuant to which owners, possessors or holders in any capacity of property or areas of landscape interest, protected by law or under the law, ’are obliged to submit to the competent administrations the project of the interventions they intend to undertake, accompanied by the prescribed authorization, and refrain from starting the works until they have obtained the authorization.’” On August 5, 2019, proceedings were also initiated by the municipality to cancel the landscape opinion issued in February 2018 in self-defense.

“In the case at hand,” reads the ruling of the Tar, “in addition to the limited period of time elapsed between the issuance of the evoked consents and the removal action, the multiple elements underlying the challenged acts, fully consistent with the aforementioned principles, assume preeminent importance: the regulations in force and the consequent prior necessary issuance of the authorization [....], in the terms already shared above; the relative misrepresentation of the factual and legal elements relevant to the case; the circumstance that the transformation works had just been started without any consolidation, with the consequent related assessment of the relative legal situation of the private individuals concerned. It also emerges from the record that the public interests related to the protection of the area and the cultural context involved have been thoroughly motivated, in the terms correctly indicated both by the appealed judgment and by the public defense, as well as fully consistent with the above-mentioned principles on self-defense.” In addition, the ruling continues, “the character of the rule, inferable both from the literal datum - of general value - and from its systematic and instrumental collocation, assumes diriment importance. In this regard, Article 150 expressly attributes to both the Region and the Ministry the power to order the suspension of works that are likely to alter the landscape values of the territory, in order to protect both property that is already constrained and areas that are intended to be protected with the imminent adoption of a future landscape constraint; it is, therefore, a power that can also be exercised to safeguard areas or properties that have not yet been declared of cultural or landscape interest. In the present case, moreover, on the basis of what has been highlighted above, the regulations in force confirm the existence of the constraint - in the aforementioned terms - and the consequent need for landscape authorization, the lack of which has therefore in any case justified and legitimized the recourse to the inhibitory power under consideration.”

Satisfaction on the part of Italia Nostra: “the appeal filed by McDonald’s Development Italy Llc,” the association recalls, “evoked the pre-eminence of the rules of the PTPR, which does not provide for the prior issuance of the landscape authorization, compared to the Caffarella PTP (No. 70 of 2010), which does. The Council of State held that the succession of landscape plans, however, establishes ’requirements for the protection of cultural heritage, with the consequence that the relevant implementation provisions can certainly not be subject to reductive interpretation.’ Therefore, the Council of State rejected the request” because the self-protection intervention is supported by Article 150 of Legislative Decree 42/2004 (the Cultural Heritage Code). “This clarification,” Italia Nostra comments, “is very important for the future protection of our cultural and archaeological heritage. The criticalities that have emerged in this affair are obvious to all: Italia Nostra believes that for the future we should not rely on the intervention in extremis of the General Directorate, but complete the State/Region co-planning process by adopting Landscape Plans throughout the country and not only in four regions.”

Image: the Baths of Caracalla

McDonald's will not be built at the Baths of Caracalla. The ruling of the Council of State

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