March 2019
Whether the scale of an expropriation plan prepared by an enterprise to be established is expanded to the extent of warranting the expropriation of other lands falls within the discretion of the competent government and is not a matter that the agency which approves the expropriation should consider when reviewing the expropriation plan (Taiwan)
2018.10.31
Luke Hung
The Supreme Administrative Court rendered the 107-Pan-640 Decision of October 31, 2018 (hereinafter, this "Decision"), holding that whether the scale of an expropriation plan of an enterprise to be established is expanded to the extent of warranting the expropriation of other lands falls within the discretion of the competent government and is not a matter that the agency which approves an expropriation should consider when reviewing the expropriation plan.
According to the facts underlying this Decision, the Intervenor needed to use the lands owned by the Appellant when handling a road project and applied to the Appellee, which granted the original disposition to approve the expropriation. The Intervenor subsequently participated in an expropriation by public announcement and notified the Appellant to claim the compensation. The Appellant contended that his three parcels of lands at issue had been the same parcels of land as the expropriated lands and had been designated for road usage under the urban plan. Since they should have been legally expropriated and compensated by the Appellee, the Appellant filed administrative appeals separately. After they were rejected by the decisions of the agency handling the administrative appeals, the Appellant was dissatisfied and brought an administrative action which incorporated all administrative appeal matters. After the administrative action was also dismissed, the Appellant filed this appeal.
It was first pointed out in this Decision that for public infrastructure lands set aside for roads within urban plan zones, when the competent government seeks to obtain the ownership of such lands and reserve them for public infrastructure, such competent government may obtain the ownership of such land by way of expropriation. Although the plan of the enterprise to be established should include the lands to be expropriated by the competent government in the expropriation plan, the Ministry of the Interior is required to examine if the enterprise to be established will facilitate the appropriate and reasonable utilization of the lands and if the lands to be expropriated are needed by the enterprise to be established when reviewing the expropriation plan. As for whether the scale of the transportation enterprise to be established in the expropriation plan is expanded to the extent of warranting the expropriation of other lands, this pertains to the allocation and raising of the financial resources by such competent government. This falls within the discretion of such competent government and is not a matter that the Ministry of the Interior, which is the agency that approves the expropriation plan, should consider.
This Decision further points out that although the Grand Justices of the Judicial Yuan interpreted, by way of the Shih-400 Interpretation, that all levels of government shall set a time period for raising financial resources to deal with existing roads gradually year by year or to provide compensation in other manners, still the Grand Justices pointed out that all levels of government shall conduct the expropriation pursuant to law, and that the interpretation does not allow the owner of a private land which is an existing road to apply for an expropriation. As for the principle of equality, which shall be observed, this is limited to circumstances where private lands are expropriated for the same transportation enterprise. Therefore, private land owners shall not assert that the principle of equity is not satisfied due to failure to expropriate their lands since the person needing to use the lands to conduct transportation business does not include their lands in the scope of the transportation enterprise to be established.
It was further concluded in this Decision that since the original decision which had held that the original disposition was not unlawful was not erroneous, and the rejection of the Plaintiff's complaint would be well-grounded, the Plaintiff's appeal was rejected.
Luke Hung
The Supreme Administrative Court rendered the 107-Pan-640 Decision of October 31, 2018 (hereinafter, this "Decision"), holding that whether the scale of an expropriation plan of an enterprise to be established is expanded to the extent of warranting the expropriation of other lands falls within the discretion of the competent government and is not a matter that the agency which approves an expropriation should consider when reviewing the expropriation plan.
According to the facts underlying this Decision, the Intervenor needed to use the lands owned by the Appellant when handling a road project and applied to the Appellee, which granted the original disposition to approve the expropriation. The Intervenor subsequently participated in an expropriation by public announcement and notified the Appellant to claim the compensation. The Appellant contended that his three parcels of lands at issue had been the same parcels of land as the expropriated lands and had been designated for road usage under the urban plan. Since they should have been legally expropriated and compensated by the Appellee, the Appellant filed administrative appeals separately. After they were rejected by the decisions of the agency handling the administrative appeals, the Appellant was dissatisfied and brought an administrative action which incorporated all administrative appeal matters. After the administrative action was also dismissed, the Appellant filed this appeal.
It was first pointed out in this Decision that for public infrastructure lands set aside for roads within urban plan zones, when the competent government seeks to obtain the ownership of such lands and reserve them for public infrastructure, such competent government may obtain the ownership of such land by way of expropriation. Although the plan of the enterprise to be established should include the lands to be expropriated by the competent government in the expropriation plan, the Ministry of the Interior is required to examine if the enterprise to be established will facilitate the appropriate and reasonable utilization of the lands and if the lands to be expropriated are needed by the enterprise to be established when reviewing the expropriation plan. As for whether the scale of the transportation enterprise to be established in the expropriation plan is expanded to the extent of warranting the expropriation of other lands, this pertains to the allocation and raising of the financial resources by such competent government. This falls within the discretion of such competent government and is not a matter that the Ministry of the Interior, which is the agency that approves the expropriation plan, should consider.
This Decision further points out that although the Grand Justices of the Judicial Yuan interpreted, by way of the Shih-400 Interpretation, that all levels of government shall set a time period for raising financial resources to deal with existing roads gradually year by year or to provide compensation in other manners, still the Grand Justices pointed out that all levels of government shall conduct the expropriation pursuant to law, and that the interpretation does not allow the owner of a private land which is an existing road to apply for an expropriation. As for the principle of equality, which shall be observed, this is limited to circumstances where private lands are expropriated for the same transportation enterprise. Therefore, private land owners shall not assert that the principle of equity is not satisfied due to failure to expropriate their lands since the person needing to use the lands to conduct transportation business does not include their lands in the scope of the transportation enterprise to be established.
It was further concluded in this Decision that since the original decision which had held that the original disposition was not unlawful was not erroneous, and the rejection of the Plaintiff's complaint would be well-grounded, the Plaintiff's appeal was rejected.
