OGH: No expropriation in case of designation as flood hazard zone

Mar 4, 2022 Benn-Ibler Rechtsanwälte

According to the Austrian Supreme Court (Oberster Gerichtshof, OGH), the mere designation of a property as a hazard zone for a 100-year flood and as a “red-yellow functional area” in the water law hazard zone plan does not constitute an encroachment on property rights.

In the original case, a hazard zone map (Section 42a para 2 of the Water Act – Wasserrechtsgesetz, WRG) was drawn up for the applicant's land (designated as agricultural land). This shows the areas as HQ 100 hazard zones (not protected against 100-year floods) and as red-yellow hatched functional areas (Article 10 para 2 WRG-Hazard Zone Planning Ordinance). The latter means that the areas include floodplains that are significant for flood runoff or have significant potential for flood retention.

The applicant then submitted an application for compensation. Due to the designation in the hazard zone plan, the property could not be dedicated as building land, or only to a very limited extent. This designation in itself resulted in a reduction in value. This restriction of property rights in the interest of the general public resulted in a material expropriation, which is why she was constitutionally entitled to appropriate compensation for this "special sacrifice".

Both the lower instances and the OGH did not grant the application.

According to the OGH, the hazard zone plan pursuant to Article 2 para 1 WRG-Hazard Zone Planning Ordinance is merely an expert opinion. Areas are evaulated on the basis of certain characteristics that already result from nature. Thus, only the characteristics existing in nature are depicted in the plan. For this reason in particular, but also because of its legal nature as an "expert opinion", a hazard zone plan has no normative effect.

The "normative implementation" only takes place through the spatial planning law of the Federal Provinces of Austria. It is only through this that restrictions on the exercise of property rights arise.

OGH 1 Ob 176/21w (16.11.2021)