Facts
The Gotthard base tunnel project for a Swiss Federal Railways (SBB) line between the Altdorf/Erstfeld and Bodio/Biasca areas was subject to a combined plan approval and expropriation procedure, opened on October 25, 1995 by the Federal Valuation Commission of the 13th District (CFS). AlpTransit San Gottardo SA (AlpTransit), established in 1998, has taken over the implementation of the entire project from the SBB.
A. is the owner of a property in Mairengo, in the hamlet of Polmengo di sopra, bordering the AlpTransit construction site of the Faido/Polmengo intermediate access. The construction work, which will last for more than a decade, began on November 1, 1999. On December 28, 2000, A. filed a claim with the CFS, requesting compensation for the nuisance caused by the excessive noise and dust emissions from the construction site.
In a decision of April 11, 2005, the CFS recognized the expropriated party and charged AlpTransit a compensation of CHF 70,000, plus interest, for the emissions caused by the construction site. AlpTransit appealed this decision with an administrative law appeal to the Federal Court, requesting a finding that the emissions from the construction site would not be excessive and would therefore not entail the payment of expropriation compensation. The expropriated party filed a joint appeal requesting an increase of the compensation to CHF 140,000.
Considerations
The Federal Court dismissed the main appeal and partially upheld the joint appeal. It found that the dust and noise emissions from the AlpTransit construction site were excessive within the meaning of Art. 684 of the Swiss Civil Code (CC) and had caused significant damage to the expropriated party. Despite the adoption of preventive measures provided for in the federal guidelines, the emissions have exceeded the limits of the right of ownership due to the size and duration of the construction site.
The Federal Court therefore determined that the expropriated…