Special expropriation law – blog I: From Crown to expropriation decision

Petra

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Immovable property can be expropriated in certain cases. Expropriation is a serious matter with a lot of impact. After all, by expropriating property, property rights are definitely infringed. Expropriation may not be carried out lightly and how and to what extent expropriation can be carried out is therefore regulated by law. With effect from 1 January 2024, the Environment Act was introduced. This changed the rules governing expropriation compared to before 2024. Expropriation of immovable property can only take place under conditions in the public interest of developing, using or managing the physical environment. Expropriation takes place in the name of an expropriator (Art. 11.2 Ow). Expropriator may be a municipality, a water board, a province, the State and certain other legal entities.

Expropriation no longer takes place via a ‘royal decree appointing for expropriation’ by the Crown, but via a so-called ‘expropriation order’. The expropriation order designates the immovable property to be expropriated (Art. 11.3 Ow). The expropriation order is issued by an administrative body as mentioned in Section 11.4 of the Environment Act. These are the municipal council, the general board of a water board, Provincial Councils or the responsible ministers.

The general board of a water board is thereby bound to the water board tasks formulated in the law (Art. 2.17 Ow) and may only issue an expropriation order with a view to those tasks.

Provincial States may only issue an expropriation order if the interest is a provincial interest or if it is expedient. The minister (whom it concerns) can only issue an expropriation order if the interest is a national interest or if it is expedient.

In order to expropriate, there must be an expropriation interest. It follows from the law that expropriation of immovable property can take place in the public interest (as referred to in Article 14 of the Constitution) in the public interest of developing, using or managing the physical living environment. This did change with effect from 1 January 2024. Before then, the then Expropriation Act regulated the possibility of also being able to expropriate limited rights of superficies, long leases, usufruct, etc. separately, for example. This is now no longer possible separately.

An expropriation order may only be issued in the interest of developing, using or managing the physical environment, if expropriation is necessary and if expropriation is urgent. We will discuss these criteria in a later blog.

In terms of content, the expropriation order must contain at least the following elements (Art. 7.5 Environment Decree):

  • The cadastral designations of the immovable property or properties to be expropriated and the name of the municipality or municipalities where such immovable property is located;
  • The cadastral size of each of the parcels of land included in the decision;
  • If a portion of a parcel of land is included in the order: the size of that portion;
  • The names of the owners of and the restricted parties to the immovable property or properties to be expropriated according to the basic registration of the land register;
  • A description of the intended form of development, use or management of the physical environment for which the expropriation is required;
  • The name of the expropriator.

The procedure to achieve expropriation is through administrative law, namely through the uniform public preparation procedure of Section 3.4 of the General Administrative Law Act. This means that the draft expropriation decision, together with the underlying documents, must be made available for inspection in the municipality where the immovable property to be expropriated is located. The submission for inspection must be announced in the official journal designated for the administrative body concerned. Subsequently, views may be submitted. Unlike in many situations where the uniform public preparation procedure applies, it is not possible for ‘anyone’ to submit views. The law states in Article 16.23(3) of the Environment Act that only interested parties can do so. The draft is also sent directly to those interested parties.

If, after weighing up the views, the administrative body ultimately does decide to adopt the expropriation order, it must request the administrative judge to ‘ratify’ the order (Article 16.93 of the Environmental Act). The filing period for such an application is six weeks, starting from the day after the expropriation order was filed and notified.

The administrative judge assesses the request, also taking into account any objections from interested parties and the administrative body’s response to those objections. Depending on the case, another written round of reply and rejoinder then follows and other parties are also given the opportunity to give their views on the case (Article 16.100 Ow). This is followed by a hearing and then, within six months of receiving the response (from the administrative body) to the objections, the court rules on the request for ratification. Or, if no objections have been submitted within six months of the expiry of the period for submitting objections.

In this blog, we will not discuss further the substantive test that the court applies to expropriations. But if the court upholds the expropriation order, the expropriation order and the court’s ruling are again made available for inspection for a period of six weeks. Thereafter, interested parties and the administrative body have the option of appealing to the Administrative Law Division of the Council of State. In this blog, we will not elaborate on the appeal procedure itself. What is important is that expropriation may not take place without compensation. But indemnification does not take place through administrative law. Compensation takes place through a separate compensation procedure. That procedure goes through civil law (civil court). In blog III, we will discuss the procedure governing compensation.

Need help and advice on expropriation issues? Please contact us.

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