The Supreme Administrative Court rendered the 108-Pan-124 Decision of March 22, 2019 (hereinafter, the “Decision”), holding that since any change to the usage purpose of an expropriated land which has been used according to an expropriation plan is an ordinary exercise of ownership, such change has nothing to do with the scenario where there is no expropriation need due to change of circumstance.
According to the facts underlying this Decision, the Appellant believed that an antenna tower was still not constructed on the land expropriated prior to the resurvey and the user of the expropriated land was changed to the Environmental Protection Department of the city government, which also constructed public toilets on its own. Since this had nothing to do with the purpose of the expropriation plan and met the criteria for cancelling an expropriation under Article 49, Paragraph 2, Subparagraphs 2 and 3 of the Statute for Land Expropriation, the administrative action was brought pursuant to applicable procedures after the application to revoke the expropriation was rejected via the original disposition.
According to the Decision, Articles 49, Paragraph 2, Subparagraphs 2 and 3 and Paragraphs 4 of the Statute for Land Expropriation provide: “The expropriation of land that has been publicly announced shall be revoked in any of the following situations: … (2) The proposed undertaking is changed or the proposed undertaking project is cancelled, or the manner of development is changed, or the method of acquisition has changed before the land is to be used according to the expropriation plan. (3) All or part of the land originally expropriated is no longer needed due to the change of circumstances after land use has commenced according to the expropriation plan but has not been completed…” and “the provisions of the preceding three paragraphs shall apply to lands expropriated by public announcement before the effective date of this Statute.” The revocation of an expropriation pursuant to such provisions requires an itemized review of the criteria stipulated in the provisions to ascertain if all of the criteria are met. If the user of the land has completed the use of the expropriated land according to the expropriation plan, there is no room to apply for the revocation of the expropriation pursuant to the above requirement. As for any change to the purposes of an expropriated land after its use is completed according to the expropriation plan, since such change pertains to an ordinary exercise of ownership, it has no bearing on the scenario where there is no longer any need for expropriation due to change of circumstance. Meanwhile, even though it is possible to exercise the right of recovery over a land which is expropriated by public announcement after the effective date of the Statute for Land Expropriation in accordance with Article 9, Paragraph 1, Subparagraph 3 of the same statute, which provides for “failure to continue the use according to the original expropriation plan if less than five years has elapsed since the commencement of the use under the original expropriation plan,” still the land at issue was expropriated in 1963 before February 2, 2000, which is the effective date of the Statue for Land Expropriation. Therefore, such provision does not apply.
Furthermore, according to this Decision, since the original trial court held that the use of the expropriated land at issue had commenced and had been completed, this does not meet the criteria for revoking an expropriation under Article 49, Paragraph 2, Subparagraphs 2 and 3 of the Statute for Land Expropriation. Since it was held that the original disposition which dismissed the Appellant’s application for revoking the expropriation was not erroneous, the original decision was not inappropriate.
In addition, it was also pointed out in this Decision that although the Appellant also challenged that the expropriation of the land at issue lacked justification and necessity, still this pertains to the inherent illegality or inappropriateness of the expropriation disposition itself and is different philosophically from the ex poste application for a disposition to revoke the expropriation in this case on the ground that the previous legally appropriate expropriation disposition subsequently had no need to exist anymore. Since the assertion that the Appellee should have granted the revocation of the expropriation was held groundless, the Appellant’s appeal was rejected.