Expropriation of neighboring legal claims in relation to national highways

Facts

The Federal Department of the Environment, Transport, Energy and Communications (DETEC) and the Federal Roads Office (ASTRA) have lodged an appeal against the judgment of the Federal Administrative Court of 11 April 2019. The subject of the proceedings is the expropriation of neighboring legal claims in connection with the noise protection project Flums - Mels. The appellants request the annulment of the contested decision and the referral of the matter back to the Assessment Commission for re-evaluation.

The respondents, [A.A.] and [B.A.] , are owners of the properties No. 1907 and 3850 in Mels, which border on the national highway N3. The DETEC had approved a noise protection project that provided for relief for the properties, as the noise remediation was associated with disproportionate costs. The respondents had lodged an objection against the project and requested compensation for the expropriation of their neighboring legal claims.

The Assessment Commission had awarded the respondents compensation of CHF 222,615 and ordered a restriction on use on parcel No. 1907. The Federal Administrative Court had partially upheld the appeal by DETEC and confirmed the assessment of compensation.

Considerations

The Federal Court has upheld the appeals by DETEC and ASTRA, insofar as they are admissible. The Court has established that DETEC and ASTRA are entitled to appeal to the Federal Court. DETEC has an abstract right of appeal under Art. 89 para. 2 lit. a FSCA, while ASTRA is entitled to appeal as the expropriating authority under Art. 87 para. 2 ComPurA in conjunction with Art. 89 para. 2 lit. d FSCA.

The Federal Court has further established that the lower court treated the appeal by DETEC as one exercised in the exercise of the right of expropriation and ruled on it. This is not objectionable, as DETEC was authorized to appeal to the lower court as the expropriating authority under Art. 47 GAOA in conjunction with Art. 39 NHwA.

The Federal Court has also established that the appellants are bound by the subject matter of the dispute before the lower court and are no longer entitled to extend it by disputing the existence of conditions for compensation. The lower court had assumed that the…