La indemnización de los daños ocasionados en el paisaje como consecuencia de expropiaciones forzosas y de la ejecución de obras públicas

Abstract

Historically, the Spanish Supreme Court has been hesitant in those cases where it has had the opportunity to assess the damages caused to an owner of real state’s landscape, in the event of partial expropriation. In these matters, it is stated nothing less than a judicial recognition of a, so to speak, right to a «private landscape.» However, in recent years, the Supreme Court has clearly stated that damage to the landscape, resulting from an expropriation, is a concept valuable by the way of a fair compensation. The conditions required for this, induced from the case law, are fourfold: that the injury is severe; that it is a direct consequence of the expropriation or of its purpose; that it was not pre-existing legal acquisition or possession of the property damaged, in relationship with the source of the damage; and that there was a residence from which the owner would be able to appreciate the landscape. These damages are compensable by way of a fair compensation, as a reduction of the property value of the expropriated properties, which exceed the compensation by the means of the affection’s reward. Other cases would be compensable by way of the extra contractual liability of Public Authorities: as damages caused in the «private landscape» resulting from expropriations and works taking place in the neighbours properties, or as damages to the landscape caused by the possible subsequent construction of a public work, for the establishment of a public service, that was established by the expropriation. Other times, the Supreme Court has dismissed (wrongly, in my opinion) the valuation of damages to a «private landscape» arguing that it was an immaterial concept, so it would be only valuable by way of an economic estimation of the natural resources expropriated, which serve as a basis of that landscape.