Special Expropriation Law – Blog II: Criteria for Expropriation

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In this blog series, we discuss the main aspects of expropriation law.

In the first blog of this expropriation special, we covered the change from a Crown decision to an expropriation order and the associated legal protections. This blog also outlined who can fall under the definition of 'expropriator.' According to Article 11.2 of the Expropriation Act (Ow), these include the municipality, the water board, the province, the state, and certain other legal entities.

In this second special blog on expropriation, we will outline the criteria for expropriation.

To expropriate land, expropriators must submit a request to the administrative court to obtain approval (ratification) of the expropriation order.

The administrative court will, in addition to checking compliance with all formal requirements, conduct a basic review as provided in Article 11.5 of the Environmental Act. This article includes the criteria an expropriation order must meet. The expropriation order can only be approved if:

  1. It is in the interest of developing, using, or managing the physical living environment,
  2. Expropriation is necessary, and
  3. Expropriation is urgent.

Below, we discuss these criteria in detail.

Expropriation Interest

According to Article 11.6 of the Environmental Act, an expropriation interest exists only if the intended development, use, or management of the physical living environment is enabled by an established environmental plan, a granted environmental permit for an out-of-plan environmental plan activity, or an established project decision.

In short, the intended development, use, or management of the physical living environment (for which expropriation is needed) must have a basis in one of the above-mentioned legal instruments.

However, an additional criterion applies to the environmental plan. The plan must specify the form of development, use, or management of the physical living environment that should be realized in the public interest. This prevents authorities from expropriating based on an environmental plan that offers such diverse building and use options that it is unclear which construction, use, or management should be realized in the public interest.

Therefore, the environmental plan must include a specification showing that the intended form of development, use, or management of the physical living environment aligns with the public interest.

Moreover, the use of all three legal instruments requires that they be established before the expropriation order can be issued. Referring to a draft environmental plan is insufficient.

Necessity

According to Article 11.7 of the Environmental Act, expropriation is not necessary if:

  • The expropriator has not made a reasonable attempt to amicably acquire the property. A reasonable attempt involves serious negotiations.
  • The expropriator has not made a reasonable attempt to reach an agreement with the property owner regarding the cancellation of property or personal rights. What constitutes a reasonable attempt depends on the specific circumstances.
  • It is likely that an agreement on amicable acquisition will be reached shortly, and the property will be transferred soon after. An offer must be made that relates to the property.
  • It is likely that an agreement on the cancellation of property or personal rights will be reached shortly, and the rights will be cancelled soon after. If there are other right holders besides the owner, and the owner cannot deliver the property free of encumbrances and rights, the expropriator must also negotiate with those other right holders.

Additionally, expropriation is not necessary if:

  • The property owner can and wants to realize the intended form of development, use, or management of the physical living environment,
  • He has intentions to do so and has made this known to the competent authority, and
  • The intended form of development, use, or management of the physical living environment will be realized in the way the competent authority desires.

It is not sufficient for the owner to merely state his intention to execute the plan himself. He must demonstrate that he can actually do so in the manner desired by the expropriator and that he has concrete plans, which he has shared with the expropriator. The owner cannot avoid expropriation by simply claiming he will implement the plan. He must have real and executable plans.

In addition to the general necessity requirement in Article 11.7 Ow, Articles 11.8 to 11.10 Ow discuss more specific cases where expropriation is deemed necessary. These criteria apply in addition to those in Article 11.7 Ow.

The specific situations include:

  • Necessary expropriation for public order (Article 11.8 Ow). Maintaining public order around a building may necessitate its expropriation. This is only possible if less intrusive measures are insufficient.
  • Necessary expropriation under the Opium Act (Article 11.9 Ow). Again, this is only possible if less intrusive measures are insufficient.
  • Necessary expropriation for liveability, health, and safety (Article 11.10 Ow). This is also only possible if less intrusive measures are insufficient.

Urgency

The urgency of expropriation is discussed in Article 11.11 of the Environmental Act. It states that urgency exists if it is likely that the development, use, or management of the physical living environment for which expropriation is necessary must begin within three years after the expropriation deed is registered.

Government agencies can demonstrate this by presenting concrete project plans and schedules.

Conclusion

In summary, expropriation can only occur if the plan for which expropriation is needed is enabled by one of the three legal instruments, is necessary for the intended development, use, and management of the physical living environment, and if there is urgency.

An expropriation interest exists if the plan is enabled by an established environmental plan or project decision or a granted environmental permit for an out-of-plan environmental plan activity.

Expropriation is necessary if amicable acquisition of the property free of property or personal rights has proven impossible and will likely remain so. Additionally, the current property owner must not be able or willing to realize the intended form of development, use, or management of the physical living environment himself.

To qualify as an urgent expropriation, the expropriator must begin realizing the plan or project within three years after expropriation.

All in all, expropriation is subject to numerous criteria because property ownership is one of the most fundamental human rights. Government agencies cannot arbitrarily expropriate properties to realize their plans unless expropriation is necessary, urgent, and enabled by a legal instrument.

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De Haij & van der Wende

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Dennis Oud

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Erwin den Hartog

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Fleur Huisman

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Petra Lindthout

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Tessa Sipkema

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Gerard van der Wende

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