The Flemish Expropriation Decree: Ready for take-off?

by DLA Piper
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Since the sixth state reform, the regions have been entrusted with expropriation law in our country. Flemish Parliament used this power to adopt the new Expropriation Decree on 15 February 2017. The proposed entry into force date of this decree was 1 November 2017, but it was eventually postponed to 1 January 2018, for lack of implementing rules. On 27 October 2017 the Flemish Government eventually adopted the implementing decree governing a few practical arrangements of the Expropriation Decree. Hereinafter we will provide an overview of the new Expropriation Decree and the related implementing provisions.

Upon entry into force of this decree the (3) existing federal expropriation acts will no longer apply within the Flemish Region, except in case of expropriation by the federal government itself or by authorities mandated by the federal government concerning federal matters.

The basic conditions for expropriation remain unchanged:

  • The objective of the expropriation shall be of common interest (and can only pursue private interests on a secondary level)
  • The necessity of the expropriation: the objective of common interest can only be met through the expropriation of that specific property
  • Expropriation is only possible in exchange for prior and fair indemnification
  • The expropriating authority shall indicate on what legal basis (habilitation basis) the expropriation procedure is initiated

The Expropriation Decree contains a few remarkable clauses with regard to the expropriation procedure:

  • The Decree expressly provides that public authorities can also expropriate rights in rem other than ownership (for ex. the right of way) relating to an immovable property
  • The right to submit a request for 'self-implementation' is expressly provided by the Decree. After all, if the objective of the expropriation can be met by the owner himself and provided the owner is able and willing to meet this objective in the way the government had in mind, there is no need for expropriation. To that end, the owner needs to submit a “request for self-implementation” to the public authorities
  • Whereas in the past, municipalities and provinces used an implicit legal basis to proceed with expropriation, the Expropriation Decree now provides a general habilitation for municipalities and provinces, just like it does for the Flemish Government. To put it in other words, they can proceed with expropriation in those cases where they believe expropriation is required to elaborate infrastructure or policies with regard to municipal and provincial matters respectively
  • The Expropriation Decree provides an obligation to negotiate. The expropriating authority always needs to make a (demonstrable) attempt first in order to acquire the immovable property amicably. Expropriation is (nothing but) an ultimum remedium
  • The Expropriation Decree provides an enforceable acquisition of the non-expropriated part, under certain conditions
  • The Decree expressly provides a right of retrocession. Such a right can be exercised if the expropriated property is not used for the purpose it was initially expropriated for. In principle, it is up to the expropriating authority to notify the expropriated party of this right. However, if the project prompting the expropriation has not started within a five-year term, the right of retrocession will apply in any case
  • There will be a digital expropriation exchange platform on which the entire digital file can be consulted electronically, including all documents and all data on the procedure, and on which these documents can be exchanged

The Expropriation Decree makes a clear distinction between the administrative and the judicial phase.

The administrative phase mainly consists of the following steps:

  • Drafting an interim expropriation decision including an expropriation plan and a project fiche. This project fiche contains, among others, (i) a project plan including a description of the project and the works to be carried out; (ii) the deadlines, if any, for the execution of the works; (iii) the implementation conditions, if any, for the works; (iv) the management procedures of the public domain
  • A 30-day public investigation. During the public investigation, the owner can submit a request for self-implementation, giving rise to a new 70-day timeframe in which the owner needs to submit a justified request
  • Following the public investigation or following the additional 70 days, the expropriating authority has got 90 days to reply to the views, remarks and objections submitted and to take the final expropriation decision

Following the administrative phase, the judicial phase is initiated with the justice of the peace:

  • The justice of the peace shall rule on the validity of the expropriation within 3 months of the introductory session
  • Subsequently the justice of the peace shall appoint an expert in order to draft an advisory report about the final compensation
  • The justice of the peace shall rule on a provisional compensation. At that time, the ownership of the property is being transferred
  • Following the deposit of the expert report, the most diligent party can ask the justice of the peace in writing to evaluate the final expropriation compensation
  • Within 5 months of the request, the justice of the peace shall rule on the final expropriation compensation

Besides fine-tuning the administrative and judicial phase, the expropriation decree also provides better coordination with land-use planning procedures. As a matter of fact, the decree provides for the streamlining of the expropriation procedure with land-use planning procedures, resulting in time savings for the public authorities. The decree also makes all information available to the citizens in a single movement.

Finally, expropriation decisions can also be appealed before the Council for Permit Disputes. However, the Council for Permit Disputes shall lose authority, at least for appeals lodged by the holder of a right in rem or a right in personam to the immovable property subject to expropriation, as soon as the case is brought before the justice of the peace. This rule does not apply to a third interested party.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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