Fastsetting av fallvederlag under endra samfunnsforhold og rettslege rammevilkår. Ein studie av utviklinga i rettspraksis for hypotetisk pårekneleg utnytting.

This master’s thesis addresses the criteria for determining compensation for waterfall rights intended to be used for hydropower production, in Norwegian expropriation law. The aim of the thesis is to describe and analyse current law by means of legal method. Nevertheless, the thesis raises questions that call for the legislator’s attention. Changes in socio-economic conditions and in legal framework over the last decades do not seem to have been taken adequately into consideration in Norwegian expropriation law. Among other things a rule designed for public expropriation may have unintended effects if used uncritically for private expropriation. The thesis shows that in times of rapid changes the rules’ object and purpose should carry great weight in legal considerations. The constitutional requirement of full compensation is the object and purpose of rules in written and case law. The thesis especially studies the development in case law of the assessment of hypothetically foreseeable use of the object of expropriation, which is a consequence of the requirement of full compensation. There are two types of hypothetical evaluations in Norwegian expropriation law. Owners are entitled to compensation based on the foreseeable use that can be made of their property, given the conditions surrounding the property. In one landmark decision from 1976 (Kløfta, Rt. 1976 s. 1) the Supreme Court, – sitting as a plenary court, – laid down that the Constitution demands that the amount of compensation should not be set below the owner’s value assumed the taking is eliminated. The second hypothetical evaluation relates to zoning plans. Projects are generally impermissible, and thereby not foreseeable, unless they are consistent with the applicable zoning plan. If a property's development value is expropriated as part of the implementation of the zoning plan, the court shall however, – according to the Supreme Court sitting as a plenary court in the seminal case of Lena (Rt. 1996 s. 521), – eliminate the plan and the preceding planning process in the foreseeability test. The purpose is to fulfil the constitutional requirement of full compensation. The Supreme Court in chamber has sought to apply the foreseeability test on watercourse appraisements on several occasions in the 2010s. Kløvtveit (Rt. 2011 s. 1683) established the rule that the valuation court, after having eliminated the licensed project, could reinclude it in its assessment as one of possibly several foreseeable exploitation options, for the purpose of full compensation. The rule has not been used by the valuation courts according to the provisions in Kløvtveit. The licensed project in Kløvtveit involved an integrated development of several waterfalls with owners in different factual positions. Determining the value of the individual owner's right in such projects entails specific challenges that are analysed in the thesis. Otra I&II (Rt. 2010 s. 1056 and Rt. 2013 s. 612) provided the basis for a legal practice where the valuation court eliminates the licensed project from the foreseeability test, but not the considerations which are the basis for the discretionary administrative act used in the licensing assessment. Thus, the valuation court repeats the discretionary administrative act and thereby only projects corresponding to the licensed one are considered as foreseeable use. The purpose of the foreseeability test which is full compensation, is therefore not fulfilled. The thesis shows that the practice is in conflict with the precedence in Lena