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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:
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:
Additionally, expropriation is not necessary if:
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:
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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