If the government expropriates land, or if a new zoning plan causes damage to citizens (so-called ‘planning damage’), some compensation must be provided. This type of process goes through a court (in the case of expropriation) or an administrative body (in the case of planning damage), which hires a damages expert to advise on the amount of compensation. Experts are quite common in law, but the role they play in expropriation or planning damage is unique, according to Schuite's research.
“In regular civil law, experts are often called in to provide the judge with expertise that the judge does not have. In an expropriation case, on the other hand, the expert also provides legal advice,” Schuite explains. “In expropriation and compensation for loss law, these damages experts actually play two roles at once: they advise the judge or administrative body both on the valuation aspects of the case, and on the legal aspects. This makes these experts’ opinion quite influential, as it serves as a kind of ‘outline judgment’ and can be directly adopted by the court.”
“This is remarkable because the role and position of damages experts is actually hardly defined or anchored in law,” says Schuite. The lawyer examined the special position of these experts. “For example, should the nitrogen problem actually be ‘solved’ by means of expropriation, the experts will play an important role in that process. Legally, however, there is relatively little regulation around their appointment and position. Expropriation experts have existed in the Netherlands since 1811, when the first expropriation law was introduced. Almost immediately, experts began to brand themselves as a core player in expropriation cases, assuming control of much of the process.”
Later, the system in which damages experts play a central role in damage assessment was even ‘extended’ to situations related to expropriation, such as planning damage and compensation for loss. “Legislators have had plenty of opportunities in the intervening years to create frameworks for expropriation practitioners, but in the end they were never actually created,” says Schuite. Steps have, however, been taken by legal practitioners. “For example, since 2013, the intended experts have to be ‘pre-screened’ to parties, and a register of expropriation experts has been active since 2014, housed in the National Register of Judicial Experts. Currently, only experts from that register can be appointed by the court, and prior to joining the register, parties are submitted to a stringent assessment.”
“Government infringements of property rights, such as expropriation and planning damages, can affect people very severely,” as Schuite points out “These experts play a central role in damage assessment. Therefore, their appointment should be objective and transparent.” Schuite makes several recommendations to legislators, legal practitioners, and courts to anchor the role of damages experts in law. “Especially in the area of quality control, there is still room for improvement. The appointment procedure should be more transparent, and it should be possible to check the quality of damages experts more objectively, using a pre-established assessment method. This prevents discussions about the damages expert afterwards, and creates more confidence in their role.”