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5'inci İdare Hukuku ve İdari Yargı Uluslararası Sempozyumu (ISALAJ- 2025), Balıkesir, Turkey, 24 - 25 April 2025, pp.189-193, (Summary Text)
AUTHORITIES OF THE ADMINISTRATION IN THE DETERMINATION AND USE OF AGRICULTURAL LANDS:
LEGAL FRAMEWORK ESTABLISHED BY JUDICIAL DECISIONS
In articles 44 and 45 of the 1982 Constitution, the State has the duty to prevent the misuse, destruction and erosion of agricultural lands, meadows and pastures, and to protect and develop the productive use of land. As a requirement of this duty, agriculture has been on the agenda of the administration intensively in our country, especially in the last thrity years, both in terms of production and products and in terms of the use of land. Indeed, rapid industrialization and urbanization have led to the deterioration of the structure of the soil and air on the one hand and the decrease in the land for planting on the other, which necessiated the duty of the administration to realize multiple objectives and priorities together in terms of the protection and use of lands. It will be appreciated that soil, as the natural resource of the country, is a limited commodity and not all soils have the same ability7 efficiency. Therefore, it is not/ shoul not always be possible to preserve this characteristic of agricultural land in cases that require different public benefits such as tourism, factories, oil or defense to be built on the same area.
Due to the nature of the need for agriultural lands in this way, the Soil Conservation and Land Use Law No. 5403, which entered into force in 2005, classified agricultural lands according to the type of production carried out on them and determined different legal regimes for each type based on this classification. However, many legal problems have arisen in the implementation of the Law, which aims to protect agricultural lands according to this classification. In our study, the expropriation of such lands fort he activities required by the administration, the permission to use the lands in terms of benefiting from agricultural incentives, the content, legal nature, administrative procedure, the principles to be followed in making decisions, the criteria to be used in the evaluation made in terms of the soncrete needs of the region, the current status of the structures on the land, the issues of importance in terms of the lands being subject to zoning plans and judicial review will be discussed.
On the other hand, in order to prevent the decrease in the productivity obtained from production by dividing the land due to its limited nature, a classification has been made as minimum and sufficient income agricultural land based on its width. According to this classification, the transfer of agricultural land is restricted and the owners are obliged to obtain permission from the Ministry of Agriculture and Forestry in transfer transactions. The legal nature of the procedure of the administration to grant permission, the solutions brought by the judiciary to the problems arising in practice according to the status of the creditors in the transfer will be expalined.
With the amendment made to the Law in 2023, the administration was authorized to lease uncultivated agricultural lands (Law No. 5403, Art. 8/K). The leasing duty assigned to the administration violates the right to property in terms of the material enjoyment of its benefits and the procedural peaceful enjoyment of the property. Alhough it is stated in the justification of the article that the reason for giving such a duty to the administration without touching the essence of the right to property is that idle agricultural lands are necessary to ensure food security, this practice is likely to create situations contrary to the democratic social order due to the sociological problems that exist between those living within the same administration boundaries. There is also the possibility that it may not achieve the expected purpose, as there must be demand for the use of the land. The Regualtion on the Leasing of Uncultivated Agricultural Land for Agricultural Purposes, which came into force for the amplementation of this provision, will also be evaluated in the study.
As a methodology in our study, firstly, the classification of agricultural lands in the legal regulations will be mentioned and the the administrative process regarding the process of changing the qualifications of these lands will be mentioned. Afterwards, these authority over agricultural lands will be evaluated with reference to the legal regime of public service, law enforcement and planning activities.
Key Words: Land, property rights, administrative powers, economic public order, public interest