The following research paper contains some important aspects of Compulsory Land Acquisition In European countries: Some important factors for the Indian Government to note are:
1. The maximum prescribed time for the entire acquisition transaction is fixed at 5 years(France). In India there is no limit. In some cases it is over 50 years after notification and still the LA is on(ref:
WP.No. No.4417 of 1997 of Madras High Court)
2. In Germany and Netherlands Compulsory land acquisition is a rare phenomenon, so rare that professionals interviewed have heard of one only in twenty years for notable public causes.( In India it is a regular news and a routine event ) In many European countries, Govts take up compulsory land lacquisition only when land is not available in open market. In India Govts compulsorily grab a piece of land measuring 3 cents owned by a poor man while in the same area acres of land are advertised as land banks in the stock of real estate developers and scores of acres are owned by golf clubs and equestrian academies.
Annexure:
The Cutting Edge 2001
Evaluation of the Efficiency, Expediency and Equality of Compulsory
Purchase in Europe
Rosemary Jackson, University of Northumbria
ISBN:1-84219-088-1
EVALUATION OF THE EFFICIENCY, EXPEDIENCY AND EQUALITY OF
COMPULSORY PURCHASE IN EUROPE
Rosemary M Jackson BSc(Hons) MRICS
School of the Built Environment
University of Northumbria
Newcastle upon Tyne
Abstract
The paper evaluates the compulsory purchase/expropriation compensation in a converging Europe. The
historic legal systems of each country are explained and compared. Current relevant legislation is
identified, analysed to substantiate the title, this is done by considering three tiers of legislation. The
impact of the legislation and national char acteristics of approach to the use of the law is examined.
The paper uses information from disparate legal sources and prime research is from questioning
individuals, mostly from the surveying profession, as to the use of the resource within their domain.
Keywords: Compulsory Purchase/Expropriation, Evaluation
Introduction
Compulsory purchase is the English terminology for the procedure of known as Expropriation
in Europe. An English definition is:
Compulsory purchase is the acquisition, in accordance with statutory procedures and
practice, of interests in land by a public or private body empowered so to do by an Act
and authorised so to do by the appropriate minister's confirming a compulsory
purchase order with or without amendment. Such a purchase entitles the purchaser to
deprive the, usually unwilling, owner of his property on payment of such compensation
as is provided for by statute. (JLW 1989)
This definition is slightly confrontational and is indicative of the approach that is perceived to
exist in the United Kingdom.
Whilst the author's working definition for Expropriation based upon a European approach to
the subject is:
Expropriation exists as a legal concept in public law as the right to take private property
for public use. Specifically it is the statutory right of the legislature to delegate power to
government departments and public utility companies, to appropriate, by due process
of law, the ownership and possession of private property, and to recompense the
owner of the property by the payment of just compensation. (Jackson 2000)
1. Aims, Objectives and Methodology
The aim of this paper is to identify, examine, compare and evaluate the expropriation
legislation in the following European Union countries; France, Germany, The Netherlands,
Belgium, Spain, Portugal, Italy, United Kingdom and Eire.
The objectives of the paper are to:
· Identify the legal families, as applicable to the listed countries
· Examine the development of expropriation within the respective legal families
· Assess the relevance of constitutional and secondary legislation on expropriation law and
compensation
· Evaluate efficiency and expediency of legislation against the cost of compensation
· Seek if there is European equality in compensation payments
The research methodology is based on a literature search of prime and secondary
documentation, followed by an empirical approach to prime research and questioning.
2.The Legal Families
Comparative legal studies have identified a number of legal families worldwide and within the
geographical boundaries of an extended Europe three families are identified:
Romano-Germanic
Common Law
Socialist Law
2.1 Romano-Germanic
A legal science that developed from the 5th century based on the Roman 'ius civile', a set of
rules for legal conduct based on justice and morality. Scholars codified the rules, initially with
the aim of regulating private legal relationships. The essence of the system is private law,
although developments have brought about branches such as civil law. The original Roman
law is a concept of law whilst the actual country specific legislation demonstrates national
characteristics.
The early codes included The French- Declaration and Rights of Man and of the Citizen1789
and the Civil Code 1804. The latter of which was used as a model by Belgium1804, Italy1804,
The Netherlands 1814 and Spain 1889 partly due to its legal clarity and cohesion and partly
because of the political status of France. The later and more major monument to Romanist
scholarship is the German Civil Code [Burgerliches Gesetzbuch(BGB)1896]. These codes and
their use disseminated in the colonisation of the world by the respective countries.
2.2 Common Law
Common Law developed through judges deciding the outcome of a trial, based upon the facts,
a 'de facto' basis for law. Thus the law established is specific to the facts rather than generic to
the issues. Classically Common Law is perceived as applicable to public rather than private
law and the paramount referral on a dispute is to the Crown. The European base for Common
Law is United Kingdom and Eire, whilst the global impact is seen in the colonisation emanating
from the UK into the British Empire/Commonwealth. The partition of Ireland in 1922 to form
Eire and the United Kingdom has led to a continued reliance on existing case law and more
recent decisions, if applicable. The other main stay of Common Law is The United States of
America.
2.3 Socialist Law
Socialist law developed in countries that previously adhered to the Romano-Germanic system
but were participants in the revolution and political evolution of Europe in the early 20th
century. As a result private law became extinct and public law was in the ascendancy. The
former Eastern European Countries are obvious participants and the system is now continuing
to change as the political, physical and sociological barriers disappear and the reunification of
Europe promotes a further development in the legal system to include private and public law.
2.4 The identification of countries to their Le gal families
Northern France, Germany, The Netherlands and Belgium are a northern cluster in the
Roman-Germanic family where the codes were dominant and effective. Southern France,
Spain and Italy are a southern cluster where the codes were a rolling, changing and used
inter-actively with local custom. Portugal is a more distant and remote variant of the southern
cluster.
The United Kingdom and Eire are members of the Common Law family.
There are no members of the Socialist Law family in this paper.
3. The Civil Codes and Expropriation
The appropriate Civil Code establishes the right to compensation for the expropriation of
property for the common good.
3.1 France
'No one can be required to surrender his property except in the case of public purpose, and on
condition of a fair and previous indemnity' (1789: Article 17)
Property is a right to enjoy and dispose of things in the most absolute way, provided that it is
not used contrary to lois and reglements (1804 Article 544)
3.2 Germany
The German Civil Code [Burgerliches Gesetzbuch(BGB)1896]
The code was written for use by the legal profession with the aims of clarification and
consistency of law within the German Empire. Divided into various books, book three sections
854-1296 defines the law of property and rights in respect to expropriation. This Code was the
model for the Austrian, and Swiss Codes, the latter of which has the commonality of
Federalism. The most recent amendments being in 1992.
3.3 Netherlands
The independent status of the Netherlands meant that custom had played a subordinate role
in legal development to Roman law until the French annexation in 1796. The Napoleonic
Codes were introduced and remained after the establishment of a new kingdom in 1814.
Changes were made and a national Code comprising Civil, Commercial and Civil Procedures,
established in 1838. The Codes remained in force until 1947 when there was a mandate to
draft a New Civil Code. The codes were completed in 1992. Book 6:168 states that 'the court
may reject an action to obtain an order prohibiting unlawful conduct on the ground that such
conduct must be tolerated for important social interests; this does not preclude the victim's
right to compensation'. This statement links into the right to expropriation, although the
paramount aim within the Netherlands is for negotiation in all aspects of law.(Hartkamp 1994)
3.4 Belgium
Belgian law echoes the peoples and languages of the country in that the law is a combination
of customary and Roman law and variations to the law exist in different provinces.
The conquest by France brought the Napoleonic Code 1804 but independency in 1830
brought demands for a fundamental revision of the law. In the case of Civil Code this
implementation has not taken place but the legislature has passed special laws to modernise
the code. Some of these changes have echoed those of France and some have not. The
recognition of respect for property and the right to compensation for expropriation has
remained.(Zweigert 1998)
3.5 Spain
Codification of Civil Law 1889. The code was initially influenced by the Code Civile 1804 in
France in that the principles, structure and systematisation. However the main difference was
and is the regard paid to Customary Local Laws in Spain. The Code comprises four books and
Book Two concerns property and the right of expropriation defined as: 'Protection of private
ownership is an absolute right.'
The Old Civil Code has been under review and the New Code is effective from January 2001.
"Without any doubt it is the main legal reform of the new government, a crucial and longawaited
reform to the Spanish legal system. It will help to reduce the high cost and needless
complexity of civil litigation." Included in the agenda is "the improvement of forced sales of
property" which is perceived to include the methodology and financial return in the cases of
expropriation. (Diz F.M. 2000)
3.6 Italy
The political conquest of Italy by France brought the codification movement to Italy and the
introduction of a Napoleonic Code in the early nineteenth century. After the collapse of the
French Empire in Italy the legal alliance was through the use of the Austrian Civil Code,
particularly in northern Italy and the use of the French Code in other parts of the country. The
consolidation of the disparate civil law came with the unification of the country and the
establishment of the "Albertina" civil law codification. The ultimate result came with the
promulgation of the Italian Civil Code in 1865 and its updating in 1942. This lates t code is still
in force and it has become influential in the re-writing of other countries including the
Netherlands, mainly because it is a single code to govern all private relationships, civil and
commercial, professional and labour law.
3.7 Portugal
The Portuguese civil code is a sophisticated and eclectic piece of 19th century legal
scholarship drawing on a range of contemporary models and raising Portugal, like the Pheonix
from the legal ashes of a state in disarray. 'The code was completed in 1867 and in many
ways is less dependent on the Code Napoleon than other Southern European codes of the
period.' (Reynolds 1996) It has been re-written in 1967 and although encompasses many
changes it remains a purely civil code and establishes the right to compensation for
expropriated property.
3.8 The commonality of approach from the countries that have a Civil Codes is that all of the
codes address the right to property and compensation for expropriation for the common good.
4. Constitutional and Secondary Legislation
Constitutional law is the basic legislation for governments and this legislation is supported by
secondary or discipline specific legislation. The aim of this element of the paper is to establish
the prevalence of expropriation within the basic or secondary legislation and to assess the
relevance to compensation payable for expropriation.
4.1 France
4.1.1 Constitution
The right to hold property and to receive compensation for its expropriation is not addressed in
the constitution of France.
(Adopted 1958 - Fifth Republic plus amendments 1999)
4.1.2 Statute
A definitive document in all aspects that links directly to the Code Civile The secondary
legislation is the Code de l' Expropriation pour cause d' Utilite Publique (1962) is in two parts:
· Loi (laws)
· Reglementaire(regulations)
4.1.2.1 Laws
The legislative part identifies the legal procedure and administrative criteria attached to each
aspect of the expropriation. The process starts with a declaration by the Council of State or re
the execution of a public enquiry, through the impact of planning, time limits - 5years, property
referencing and legal searches, service of notices, impact of partial expropriation,
determination of compensation and finally rights of appeal.
The process starts from the concept that the purpose of the expropriation must be compatible
with the 'Plan d'occupation des sols' (POS) - land use plan - and thus Town Planning and a
maximum time scale of 5 years for the whole transaction. The procedure of notification of the
scheme to occupants with greater and lesser legal interest is defined in lois13-2 whilst the
assessment of compensation is determined in lois13-13 to13-20. The basis for the valuation
and compensation is the use of the subject property as defined in the Plan de sols together
with the physical advantages and disadvantages of the property, particularly with regard to
services, potential contamination and capacity of construction of the site or property.
The wording has specifics but there is still great capacity for negotiation.
4.1.2.2 Regulations
The regulations are codified and ordered with exactly the same number as the lois and are a
handbook for the assistance of the administration of the expropriation and are exacting in
detail and time deadlines.
The process takes place in two successive phases:
· Administrative
· Judicial
4.1.3.1 Administrative
The state or department approves a public enquiry to establish if the proposal is in the public
interest, with time constraints. Followed by a land survey to establish the extent of the land to
be expropriated and occupiers an their legal interests. This phase offers greatest scope for
appeal usually based on mal-administration and is bound by the regulations.
4.1.3.2 Judicial
The main point of this phase is that following the enquiry the judge grants the developer
ordnances to become the owner of the land subject to a price negotiation and that in the event
of disagreement the judge will determine the compensatory value.
4.1.4 Calculation of compensation
Compensation can be in the form of payment or re-location. Compensation in the form of
payment is calculated as the value of the property based upon Primary compensation plus a
compensation for expropriation
Primary compensation is calculated on the
'value of the property on the day of the ordnance'
'amount of use of the property within one year of the start of the enquiry'
'the value that the occupier has added to the property'
The major items to be excluded are
value added due to the proposed development
value accrued during the proceedings
Additional compensation includes cost of re-investing in another property, attached legal and
professional fees and particularly in agricultural areas the costs of boundary walls or fencing.
The claimant my claim interest on the late payment of compensation of demand a revaluation
if the delay is prolonged.
4.2 Germany
4.2.1 Constitution
Article 14 Property, right of inheritance, taking of property
(1) Property and the right of inheritance are guaranteed. Their content and limits are
determined by statute
(2) Property imposes duties. Its use should also serve the public will
(3) The taking of property is only permissible in the public weal. It may be imposed only by or
pursuant to a statute regulating the nature and extent of compensation. Such
compensation has to be determined by establishing an equitable balance between the
public interest and the interests of those affected. Regarding disputes about the amount of
compensation, recourse to the courts of ordinary jurisdiction is available.
(International Constitutional Law 1992)
4.2.2 Statute
The German legislation is contained in The Federal Building Code (Baugestzbuch.1997)
(BauGB 97). The extensive nature of the Code identifies the scope of the planning and
development process from planning principles to completion of a development. The document
is specific in each section and addresses both the national and federal systems of the country.
Chapter One, Part five of the Code defines the Legal Requirements, Compensation and the
Procedure for expropriation. Whilst Chapter Three Other Provisions, Part One establishes
Valuation duty and expertise including specific reference to Valuation for expropriation
Expropriation can only take place under the BauGB for use of the land designated in the
Bebauungsplan (Binding Use Plan).
Expropriation is only possible for the 'general good' and when the purpose cannot be achieved
in an alternative way. The development of the land to be expropriated is only possible if such
development will benefit the municipality or public agency. Throughout there is a
presupposition that private negotiations have been unsuccessful.
The principles of compensation are that it is provided as a monetary payment for the loss of
legal rights, together with property loss and any other loss that arise out of the expropriation.
The concept of 'set off' of any benefits accrued is taken into account in the assessment of
compensation. The basis for the payment of compensation is 'current market value at the time
that the expropriation authority adjudicates on an application for expropriation which is
decisive.' The concept of other property loss, disturbance is then addressed
4.2.3 Calculation of compensation
Section 95 defines that Compensation for the Loss of Right is based on current Standard
Market Value (as defined in Section 194). The section then continues with the items that are
not to be considered, including changes in value linked to:- change of use, anticipation of the
expropriation, increases in value since an open market transaction was possible, Section 96
considers Compensation for other property loss. Thus the legislation aims to identify a
valuation methodology, however the legislation goes further and establishes the concept of
valuation experts, their duties, powers and capabilities. Definitions of values and the recording
of price data is also addressed
4.3 Netherlands
4.3.1 Constitution
Article 14 property
(1) Expropriation may take place only in the public interest and on prior assurance of full
compensation, in accordance with regulations laid down by or pursuant to Act of
Parliament.
(2) Prior assurance of full compensation shall not be required if in an emergency
immediateexpropriationiscalledfor.
(3) In the cases laid down by or pursuant to Act of Parliament there shall be a right to full or
partial compensation if in the public interest the competent authority destroys property or
renders it unusable or restricts the exercise of the owner's rights to it.
(Ministry of Foreign Affairs1989)
The link between the Constitution of the Netherlands, and the Civil Code is tortuous and
linguistically challenging.
4.3.2 Statute
The planning legislation provides the key and legal certainty, fundamental to the Dutch
administration and law, in the form of the Bestemmingsplan (local plan). The
bestemmingsplan is a positive instrument, prepared within a regional plan, which is used not
only to regulate but also to promote developments. Municipalities frequently buy land, service
it and sell it on to developers using open market negotiations and where the major financial
problem is the cost to finance the initiative.
4.3.3 Calculation of compensation
The local plan also fixes land values based on a zoning concept and as such is the legal basis
for any claim for compensation for loss of value under The Expropriation Act (1967 plus
amendments).
There are several grounds for expropriation, but in practice it is rarely used. The reason for the
lack of use is that municipalities try and purchase land amicably and offer a price based on the
value that the owner would receive in the event of expropriation plus an amount equal to that
value to account for expenses and loss of income. Effectively a disturbance payment equal to
the value of the existing use value. [Oskam W APA Journal 1994]
4.4 Belgium
4.4.1 Constitution
No one can be deprived of his property except in the case of expropriation for a public
purpose, in the cases and manner established by law, and in return for a fair compensation
paid beforehand.
4.4.2 Statute
The legislation for defining the methodology for expropriation is The Planning Act 1962 (Loi
Organique de la management du Territoir et de l'Urbanisme) Chapter V Arts. 25-35 examines
the procedure of defining the right to expropriation for the public good and expounds the time
limits and legal criteria. Little to no explanation is offered as to valuation methodology, as
expropriation is a rarely measure.
4.4.3 Calculation of compensation
The statutory guidance to establish value to the dispossessed owner is addressed in Art.31
and states that: The Value of the expropriated property is not to be more or less than the land
values in the relevant surrounding area-market value. Art.31 also states that,
In common with many others in the Loi, there are regional variations in Belgian law.
The Loi is very similar in procedural terms to the French loi and demonstrates the historical
links with France prior to cessation. In general a disturbance payments based upon costs is an
additional payment to the market value of the property.Art.33 identifies an audit procedure in
that the valuation can be referred to a committee to ratify the valuation
4.5 Spain
4.5.1 Constitution
Article 33[Property, Inheritance]
(1) The right to private property and inheritance is recognised
(2) The social function of these rights shall determine the limits of their content in accordance
with the law.
(3) No one may be deprived of his property and rights except for justified cause of public utility
or social interest after proper indemnification in accordance with the provisions of law
(International Constitutional Law 1978)
4.5.2 Statute
The Code of expropriation is a detailed document which has regard to local custom laws as
well as the national government. It works with The Planning Act 1956, modified by the Acts of
1976 and 1992. These latter acts provide a comprehensive town planning system where the
municipality has the most detailed plans for its area, whilst hierarchy of more generic regional
and national plans exist. The planning system gives rise to zones that impact upon the values
attached to expropriations.
4.5.3 Calculation of compensation
Compensation is based on the market value of the piece of land based on the zoning system
within planning. The valuation tends to be carried out by tasadores who work within the
Decree on Valuation, their background is usually architectural or engineering. There is no
compulsion or encouragement for a claimant to have an advisor
4.6 Italy
4.6.1 Constitution
Article 42[Property]
(1) Property may be public or private. Economic goods may belong to the State, to public
bodies, or to private persons.
(2) Private ownership shall be recognised and guaranteed by laws which shall determine the
manner by which it may be acquired and enjoyed, and its limits, in order to ensure its
social function and to make it open to all.
(3) Private property, in such cases as are provided for by law, and with payment of
compensation, may be expropriated for reasons of common interest.
(Constitution of Italy 2000)
4.6.2 Statute
The statute re expropriation is Law of 25th June 1865,n.2359 " Disciplina delle Espropriazioni
Forzate per Causa di Pubblica Utilita" containing 96 articles covering the legal, planning and
valuation aspects of expropriation. The initial articles consider the appropriateness of the
scheme and public benefit together with administrative time scale for adherence. The
appropriate professionals to act in the expropriation are identified; engineers, architects and
lawyers in the original legislation but an amendment extends the group to include valuers. The
possible expropriators are also identified but the list is not finite. The type of decree is another
variable dependent upon the scale and location of the expropriation. The use of expropriation
is being revisited in the light of regeneration issues and recent town planning legislation.
4.6.3 Calculation of compensation
The valuation methodology is contained within the Expropriation Code 1865 from Article 37 the
criteria are established including the payment of expenses which are deemed to be a cost to
the purchaser. The value of the land is determined as being open market value and in the
case of purchase of only part, the before valuation of the whole is considered against the after
value of the component parts.
4.7 Portugal
4.7.1 Constitution
Article 62 Right to Private Property
(1) Everyone is guaranteed, under this Constitution, the right to private property and to
transfer it during his or her lifetime and on death.
(2) Requisitioning or compulsory acquisition of property for public purposes shall be
carried out only under the authority of law and on payment of fair compensation
(Constitution of the Portuguese Republic 1997)
4.7.2 Statute
The Portuguese constitution is supported by The Code of Expropriation 1991.(Decree of Law
438/91) The code states that expropriation must be completed by private negotiation. The
code also makes specific reference to the calculation of compensation based upon the
planning constraints or policies of the subject land for expropriation. There is compensation
payable for greater and lesser legal rights, time scales for the expropriation are defined - 6
years and the expropriator can be forced to buy the whole of a piece of land in the event that
an uneconomic piece remains. The definitions for public utility are specific and the
administrative process is well monitored. Some of the mathematics of the valuation are
enumerated within the code. The planning implications too, are clearly very evident.
4.7.3 Calculation of compensation
The Code of Expropriation 1991.(Decree of Law 438/91) flows from the rights within the
constitution and identifies the right of the community to acquire the property of an individual for
the shared benefit of all for a public utility.The code states that expropriation must be
completed by private negotiation. The code also makes specific reference to the calculation of
just compensation based upon the planning constraints or policies of the subject land for
expropriation. The two categories identified are Construction land (Art.25) and Land for other
purposes (Art.26) The valuation techniques are established within the Code of Expropriation
and are specific to the identified land categories
Construction land is valued by considering the market value of the construction that would be
allowed if the expropriation did not take place, by reference to the planning zoning. It is
considered that land value, usually, amounts to 10% of the construction value and as such
provides a basis for compensation. There are however the following add on factors depending
on specific property:
i) 1% property served by a tarmac road
ii) 1% property served by a public water supply
iii) 1.5% property served by a public sewer
iv) 1% property served by electricity supply
v) 0.5% property served by rainwater sewers
vi) 2% property served by a public treatment station
vii) 2% property served by a public gas supply
viii) 15% on the basis of the ambience of the property
Land, for other purposes (Art.26)
The calculation of the value of land, other than that identified as construction land, is based
upon the statement regarding the land in the land registry. The value is based upon the
income, on an existing use basis, from the subject land. The use of comparable evidence from
nearby properties is also important
The Code continues with criteria for Partial Expropriation (Art.28)
4.8 United Kingdom
4.8.1 Constitution
The UK does not have a promulgated constitution but that does not mean that it does not have
Constitutional Law. The following information has been documented for use by academics in
comparative constitutional law.
Section 9 Property
Everyone has the right to own property alone as well as in association with others,
no one shall be arbitrarily deprived of his property
Compensation is paid for any losses suffered through expropriation (compulsory purchase) or
the deterioration of property as a result of activities by public authorities.
(International Constitutional Law 1992)
4.8.2 Statute
Victorian and subsequent Case Law together with the Compulsory Purchase Act1965
give the right to expropriate land for the common good upon the payment of
compensation. These powers are only to be exercised when open market negotiation
fails. The basis of the compensation is to satisfy the 'Principle of Equivalence'
i.e.'compensation is the amount required, so far as money can do so, to put the owner
in the same position as if his property had not been acquired.' Ricket v Metropolitan
Rail Co. (1867)
The planning system in the United Kingdom in some areas addresses and
compliments the expropriation process, particularly where Unitary Development Plans
are in existence. The system is however not totally 'plan-led'
4.8.3 Calculation of compensation
The Land Compensation Act 1961 Section 5 (LCA 61) states the Six Rules of
Valuation but they are silent on mathematics.
(i) No allowance shall be made on account of the acquisition being compulsory
(ii) The value of land shall as hereinafter provided, be taken to be the value which
the land if sold on the open market by a willing seller might be expected to
realise
(iii) The Special suitability or adaptability of the land for any purpose shall not be
taken into account if that particular purpose is a purpose to which it could be
applied only in pursuance of statutory powers, or for which there is no market
apart from the special needs of a particular purchaser or the requirements of
any authority possessing compulsory purchase powers.
(iv) Where the value of the land is increased by reason of the use thereof or any
premises thereon in a manner which could be restrained by any court, or is
contrary to law, or is detrimental to the health of the occupants of the premises
or to the public health, the amount of that increase shall not be taken into
account
(v) Where land is, and but for the compulsory acquisition would continue to be,
devoted to a purpose of such a nature that thereis no general demand or
market for land for that purpose, the compensation may, if the Lands Tribunal is
satisfied that reinstatement in some other place is bona fide intended, be
assessed on the basis of the reasonable cost of equivalent reinstatement.
(vi) The provisions of rule 2 shall not affect the assessment of compensation for
disturbance or any other matter not directly based on the value of land.
4.9 Eire
Until the partition of the Republic of Ireland from the rest of the United Kingdom in 1922, there
was no written constitution in what is now called the Republic.
4.9.1 Constitution
Article 43 Private Property
(1.1) The State acknowledges that man, in virtue of his rational being, has the natural right,
antecedent to positive law, to the private ownership of external goods.
(1.2) The State accordingly guarantees to pass no law attempting to abolish the right of private
ownership or the general right to transfer, bequeath, and inherit property.
(2.1) The State recognizes, however, that the exercise of the rights mentioned in the foregoing
provisions of this article ought, in civil society, to be regulated by the principles of social
justice.
(2.2) The State, accordingly, may as occasion requires delimit by law the exercise of the said
rights with a view to reconciling their exercise with the exigencies of the common good.
Constitution of the Irish Republic [Adopted 1937 plus amendments to 1995]
.
4.9.2 Statute
Prior to 1922 and the partition of Ireland the legislation was common with the United Kingdom.
Since 1922 the Common Law basis has remained and in many instances UK case law is
acknowledged. The statutes have developed to address certain issues particularly the high
demand for social housing particularly under the Housing Acts 1966 which have different
provisions for compensation from the Victorian statutes. The impact of the planning system is
demonstrated by the Planning and Development Act 2000.
Thus Eire has two distinct systems and codes for expropriation, which are of common origin,
similar in principle but the assessment and amount of compensation will depend upon the
identity of the expropriator and the enabling legislation.
Expropriation is always, but does not have to, preceded by negotiation and the concepts of
value are the same. Compensation is assessed upon the diminuition in value from before the
property was subject to the expropriation order and the value after the expropriation has taken
place. The McCarthy rules [Metropolitan Board of Works v McCarthy(1874)LR 7 HL 243]are
applicable to injurious affection caused by the execution of the works.
McDermott and Woulfe (1992),
Under the 1966 Act, each planning authority was required to make a development plan within
3 years and to review it at least once in every 5 years. Plans have been made in most areas
and reviewed at least once. With few exceptions, the development plan is the controlling
instrument for development in its area. The local authority is specifically prohibited from
carrying out development which would conflict with its plan. No authority, except Departments
of State headed by a member of government, is exempt from planning control. The planning
board, in considering appeals, must have regard to the development plan, but is not bound by
it. The decision of the planning board is not subject to further appeal.
Planning authorities are enabled to ‘... develop or secure the development of land’ under
section 77 of the 1963 Act. Authorities can enter into joint ventures with private developers to
secure the development of obsolete or decayed urban areas.
The wide range of councils’ compulsory acquisition powers enable these bodies to carry out or
fulfil any of their powers or duties. Other bodies referred to in the previous section would have
to ensure that any compulsory acquisition proposals were allowed for within their specific
enabling Acts. The processes in Eire are similar to those in the UK. A notice to treat can be
served at any time within three years from the date on which the compulsory purchase order
becomes operative.
4.9.3 Calculation of compensation
The measure of compensation to which the owner of an interest in land compulsorily
purchased is entitled depends upon the provisions of the statute governing the compulsory
acquisition.
All claims for compensation for the compulsory purchase of an interest in land will include one
or more of the following elements:
1. market value of the interest acquired;
2. disturbance and other matters not based on the value of the land;
3. damage arising from the severing of the land acquired from the land is retained by the
owner;
4. damage arising from the injurious affection of the lands retained by the exercise of statutory
powers on the land acquired.
The amount of compensation and the method of its assessment is dependent on the identity of
the public authority and on the provisions of the legislation under which it is operating. In the
same way the procedures by which the compulsory purchase powers are obtained and
implemented, and the owners’ right to have any objections considered by an independent
public enquiry will depend upon the legislation from which the acquiring authority derives its
powers. It is difficult to see why uniform procedures should not apply for all compulsory
acquisitions, whether by a local authority, government department or semi-state body and why
the expropriated owner’s entitlement to compensation and the method of its assessment
should not be the same in all cases.
4.10 Assessment of relevance of legislation
All of the nine countries examined belong to one or other of two legal families, the Romano-
Germanistic or Common Law and the only point in common is that all of the countries address,
define and legislate for expropriation within their secondary legislation. All the countries with
Civil Codes address the issue in that document and with the exception of France all counties
with a promulgated constitution refer to the rights of the property and expropriation in that
document too.
There is also the issue that all of the countries are signaturees to the European Convention on
Human Rights and that as such Article 8-Right to respect for private and family life together
with Article 1 of Protocol 1:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and in the general principles of international law.
The preceding provision shall not, however, in any way impair the right of the state to enforce
such laws as it deems necessary to control the use of property I accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.
Table to show legal references to expropriation
Country Family Civil Code Constitution Secondary
Legislation
Useage
France R-G X X 6th
Germany R-G X X X 7th
Netherlands R-G X X X 7th
Belgium R-G X X X 7th
Spain R-G X X X 3rd
Italy R-G X X X 3rd
Portugal R-G X X X 5th
UK C-L X 1st
Eire C-L X X 1st
R-G Romano-Germanistic
C-L Common Law
5. Conclusion
The conclusion initially answers the following issues:
· Evaluation of efficiency and expediency of legislation against the cost of
compensation
· European equality in compensation payments
5.1 Evaluation of efficiency and expediency of legislation against the cost of
compensation
Definitions
Efficiency - ratio of useful work performed to the total energy expended
Expediency- advantageous, suitable, politic rather than just
(Oxford Concise Dictionary)
To evaluate the efficiency of legislation can have a positive or negative approach.
The positive approach is that the time expended over centuries to produce the tiers of
legislation is efficient if there is conformity to the legislation by the population..
Whilst the negative approach is that the ratio of time spent to develop the legislation has been
wasted if there is no use for the legislation and open market negotiations prevail.
Thus from a positive viewpoint the countries where the legislation is little used; Germany, The
Netherlands, Belgium and France, are efficient, whilst by degree the remaining countries are
not.
To evaluate the expediency again a positive or negative approach may be applicable.
The positive approach is that legislation is advantageous, suitable and politic. But for whom?
The negative approach, semantically, is to add politic rather than just and argue that the
legislation is politic rather than just and thus ignore the legislation and use open market
negotiations which are always listed as the first approach in expropriation.
The statement is 'evaluation of efficiency and expediency against cost of compensation' and
this promotes the questioning of time against money during the negotiations rather than during
the historic development of law. Compensation payable is most economic if the amount paid
is the least possible, unless the negotiation period and or litigation costs inc lude professional
fees at a rate per hour. Thus reasonable open market negotiations that bear in mind the
possible use of legislation can be cost effective and the compensation equitable. Thus
efficiency and expediency can be identified in Germany, The Netherlands, Belgium and
France. Against the other countries which demonstrate a greater use of legislation and even
litigation.
5.2 European equality in compensation payments
The methodology to arrive at a compensation payment is also subject to semantics and
definitions and in most countries more than one approach might be applicable.
France offers the opportunity for a payment based on market values subject to the POS
together with a relocation amount. It is also possible in certain circumstances for
compensation on a quasi equivalent reinstatement.
Germany uses Standard Market Value which can be paid as compensation or as the use of
substituted land.
The Netherlands uses Existing Use Value plus a disturbance element equal to the Existing use
value.
Belgium uses Market Value proven by comparable evidence from a small surrounding area
and the impact of planning is paramount.
Spain uses Market Value based on the municipal plan
Italy uses Open market value plus an amount for fencing or boundaries.
Portugal has slightly different approaches for land suitable for construction and for other land.
The former land is a market value with additions for services, whilst the latter is based on
occupation and use.
The UK uses Open Market Value plus disturbance costs, where mitigation of costs is very
important.
Eire applies different valuation approaches depending as to which statute is the authoring act,
thus two identical properties if expropriated for different purposes would result in differing
amounts of compensation.
The calculation of compensation is always going to be a vexing matter and with slightly
differing professional approaches, definitions of value and additional factors. The chance of
equality in payments would require a re-write of some legislation on a European basis and the
efficiency and expediency of that type of legislation is unlikely.
5.3 The evaluation has gone from full circle from two very different definitions of expropriation,
one rather confrontational and the other more acquiescent, to an evaluation where efficiency
and expediency can be viewed in two very different ways. Expropriation is a necessary legal
right for countries although the professional ethos of its use varies. The Romano-Germanistic
legal families have the detail of how to execute the procedure, in a three pronged approach yet
it is used very infrequently. Questioning of professionals in Germany and The Netherlands
demonstrated that in Germany all of the surveyors could only think of expropriation being used
once in the whole of their professional careers, average 20 years, and they all named the
development- Potsdammer Platz in Berlin. Similarly use in The Netherlands was linked to a
number of cases near the Issel Meer flood defense scheme.
Respondents from other countries could all think of more than one instance, usually including
motorway and other transport schemes, particularly in France where the line of the route is the
key issue as to whether or not expropriation is used. The TGV to the Lille was sold as a
positive initiative for Pas de Calais and expropriations were few. Whilst the more recent train
link to the Mediterranean has been less popular and extends so many kilometres that the
negative factors of such a major scheme have contributed to 'the knock on affect' and open
market purchases have diminished in number as the scheme has progressed.
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Legislation and Cases
France
Legifrance French Declaration of Human and Civil Rights 1789
Napoleonic "Code Civil" 1804
Code de l'Expropriation pour cause d'Utilite Publique
Germany
Federal Ministry for Federal Building Code.[Baugestzbuch (BauGB)]
Regional Planning, 1997
Building and Urban
Development
Valuation Ordinance 1988
Netherlands
Ministry of Foreign Affairs The Constitution of the Netherlands(1989
Hartkamp Judicial Discretion under the New Civil Code of the Netherlands
Portugal
Ministry of Planning The Code of Expropriation 1991 (decree of Law 438/91)
and Management of the (1991)
Territory
United Kingdom
Land Compensation Act 1961
Compulsory Purchase Act 1965
Ricket v Metropolitan Railway Company (1867)LR 2 HL 175
Websites
France
Legifrance Constitution of France 1958- Fifth republic plus amendments to
1999
Germany
uni-wuerzburg.de The Constitution of Germany
International Constitutional Law (1992)1
Belgium
uni-wuerzburg.de The Constitution of Belgium
International Constitutional Law 1992
Spain
uni-wuerzburg.de The Constitution of Spain
International Constitutional Law 1978
Italy
Ministry of Justice The Constitution of Italy 2000
Portugal
Parlamento.pt Constitution of the Portuguese Republic 1997
United Kingdom The Constitution of the United Kingdom ( for
uni-wuerzburg.de academic purposes)
International Constitutional Law (1992)2
Eire
Irish Government The Constitution of the Irish Republic
