Facts
On 16 August 2016, the Department of Construction and Environmental Protection of the Canton of Basel-Landschaft (BUD) adopted, for each of 18 municipalities in the two Frenke valleys, a cantonal zoning plan for the water space of watercourses located outside the building zone. During the public display period, 55 objections were filed by private individuals, municipalities and interest groups.
On 2 May 2017, the Regierungsrat of the Canton of Basel-Landschaft dismissed the outstanding objections, insofar as it entered into them. Against this decision, the Bauernverband beider Basel and various farmers, including A., lodged appeals with the Cantonal Court of Basel-Landschaft. The court joined the proceedings and dismissed the appeals on 28 March 2018, insofar as it entered into them.
By public law appeal dated 10 January 2019, A. and the Bauernverband beider Basel brought the matter before the Federal Supreme Court. They requested that the arable land areas in the water space be fully compensated and not be credited toward the cantonal minimum extent. They further requested a finding that Art. 41a para. 5 WPO contradicts Art. 36a WPA.
Subject of dispute: Must the loss of arable land areas in the water space be compensated, and is Art. 41c WPO, which only compensates irreversible effective losses, compatible with Art. 36a para. 3 WPA?
Outcome: The appeal of the Bauernverband was not entered into; A.'s appeal was dismissed insofar as it was entered into.
Considerations
The Federal Supreme Court first examines the wording of Art. 36a para. 3 WPA. The sentence stating that the water space does not count as arable land does suggest that arable land areas in the water space lose their quality and must be compensated. However, this interpretation is not mandatory: the term 'loss' may also be understood in the sense of an effective consumption, as is the case for the identically worded provision of Art. 38a para. 2 WPA concerning widening of watercourse channels. Furthermore, Art. 36a para. 3 third sentence WPA refers to the requirements of the federal sectoral plan for the compensation obligation.
The legislative history is not clear. The UREK-S and the National Council both assumed that only the effective loss of land through widening of the watercourse channel should be compensated. Later parliamentary initiatives and Motion 12.3334, however, show a need for clarification. The materials do show, though, that no new compensation obligation beyond the sectoral plan was intended to be created.
The sectoral plan for arable land serves to secure an emergency reserve of soil for food supply in times of crisis. Decisive for creditability is therefore not the current use, but whether the soil fertility is preserved in the long term and the area can be intensively cultivated again in times of need. Extensive use is compatible with this purpose. The compensation is derived from the duty of the cantons to permanently…