Does the harmful change to neighboring land have to be real?

Article 234(3) of the Water Law states: “If changes in the water conditions on land caused by the landowner harmfully affect neighboring land, the mayor, city mayor, or city president, on their own initiative or upon request, shall order the landowner, by decision, to restore the previous condition or to implement devices preventing damage, setting a deadline for these actions.” In the practice of public administration and administrative courts, the issue has arisen as to whether the legislator meant only damage that has already occurred on neighboring land or also damage that may potentially occur in the future.

Hypothetical damage only

Although not a widespread or prevailing opinion, some administrative courts, and thus public administration authorities, accept that for issuing a decision ordering the landowner to restore the previous state or implement preventive measures, it is sufficient to show in the proceedings leading up to the decision that damage to the neighboring land could likely occur.

As indicated by the Voivodeship Administrative Court in Gliwice in its judgment of October 21, 2015, file reference II SA/Gl 412/15, damage “may also be hypothetical, i.e., may occur in the future, if this possibility is realistic under certain circumstances (e.g., during exceptionally heavy rainfall). It may also involve an intensification of unfavorable water runoff due to the terrain’s shape.”

Similarly, the Voivodeship Administrative Court in Lublin ruled on May 29, 2014, file reference II SA/Lu 250/14, stating that damage “may also refer to the potential risk of flooding neighboring lands depending on extraordinary events, but also resulting from those changes. Harmful effects on neighboring land, as understood by this provision, do not need to be associated with material loss. It may also involve the threat of flooding or submersion.”

The stance that hypothetical damage is sufficient to issue a decision under Article 234(3) of the Water Law is a minority view, though there are court rulings to support it, and one can attempt to obtain a decision protecting neighboring land from potential damage. However, such an approach is likely to fail.

Dominant stance – Real damage

The prevailing and well-established position in practice and jurisprudence, including the case law of the Supreme Administrative Court, is the view that a prerequisite for issuing a decision under Article 234(3) of the Water Law is actual damage occurring on the neighboring plot.

The provision of Article 234(3) applies to a situation where a change in water conditions on the land has occurred, and this change has a harmful effect on neighboring land. The normative phrase “this change affects” indicates that both the change and its harmful effect must actually occur. If the legislator had intended to include situations where a change in water conditions on the land occurred but did not yet have a harmful effect on the neighboring land (actual damage), they would have explicitly stated this in the provision, using, for example, a conditional phrase: “may harmfully affect” (Supreme Administrative Court judgment of July 9, 2021, file reference III OSK 530/21, similarly, the most recent judgment of this court in a similar case of July 9, 2024, file reference III OSK 2657/22).

Intermediate stance – Hypothetical damage that must occur

According to the author, an attempt to reconcile these two opposing positions was successfully made by the Voivodeship Administrative Court in its judgment of June 5, 2013, file reference II SA/Kr 315/13. It stated that: “Only in completely exceptional situations could it be considered that even in the absence of actual damage caused by a change in the state or configuration of the land, there was a basis for imposing certain obligations on the perpetrator of such a change […] but such a situation could only concern cases where, for obvious reasons, beyond any doubt, the landowner’s actions directly and deliberately lead to damage to the neighboring land, and it is only a matter of time before a future event (e.g., rainfall) and a certain one (damage due to the change in water conditions on the land) will occur.”

It should be agreed that the basis for issuing a decision under Article 234(3) of the Water Law should be either real damage or hypothetical damage, but only when the findings of the case show that, beyond any doubt, it will occur in the future.