One of the more popular forms of recreation is water recreation. Unfortunately, it is very often obstructed by various types of fences or other obstacles that prevent access to the waters. Therefore, it is useful to know what waters we should be guaranteed access to and to what extent, as well as what measures can be applied in the event that difficulties arise.
Common use of water
One of the basic rights to which everyone is entitled, according to the provisions of Art. 4 paragraph. 1 of the Act of April 27, 2001. Environmental Protection Law (Journal of Laws 2022, item 2556, as amended), the right to the general use of the environment. One of its forms, in turn, is the right to the general use of water having its legitimacy in Art. 32 of the Act of July 20, 2017. Water Law (Journal of Laws 2023, item 1478). In accordance with the provisions of paragraph. 1 of this provision is vested in everyone, including the right to use public inland surface waters, internal marine waters and the waters of the territorial sea, unless otherwise provided by law.
On the other hand, according to paragraph. 2 of this provision “The general use of water is for the satisfaction of personal, household or agricultural needs, without the use of special technical devices, as well as for recreation, tourism, water sports and, under the terms of separate regulations, amateur fishing.” Thus, it follows from the cited solutions that the right to the general use of water to the extent indicated is enjoyed by everyone. And if it is violated, legal consequences should be applied to the violator. In turn, these can be varied.
Administrative measures to guarantee access to water
First, the provisions of Art. 232 para. 1 of the Water Law, according to which “It is forbidden to fence real estate adjacent to public inland surface waters and to the shore of marine waters and the territorial sea at a distance of less than 1.5 meters from the shoreline, as well as to prohibit or prevent passage through the area.” On the other hand, according to paragraph. 2 of this provision “The owner of a property adjacent to waters subject to general use is obliged to provide access to the waters in a way that allows this use. Parts of the property allowing access to the water shall be designated by the mayor, mayor or city president, by decision.”
Therefore, if on the banks of rivers or lakes we meet obstacles obstructing access in a strip of one and a half meters, we can say with a high degree of probability that they were made in violation of the law (exceptions to this rule are allowed for safety reasons and in protective zones of water intakes).
In order to restore the lawful condition, we should notify the municipal authority, which, ex officio, must issue a decision designating a water access zone. Of course, the rights of an individual citizen are limited, and it does not automatically follow from the fact of making a notification that we will actively participate in such proceedings. Indeed, it is accepted in case law that “The legitimacy to be a party to the administrative proceedings conducted to designate access to waters subject to common use in a way that allows this use is held only by the owner of the property that is designated as allowing access to water.” (Judgment of the WSA in Gdansk of 27.02.2020, III SA/Gd 857/19, LEX No. 2939056).
Accordingly, it is assumed that “The entity declaring a lack of access to water is not a party within the meaning of Article 28 of the Code of Administrative Procedure, and cannot determine in a binding manner the plots of land where this access will take place, that is, according to its factual interest. Indeed, the authority competent to designate specific plots of land to provide access to water is exclusively the administrative body acting ex officio, guided by the principle of universal use of water and the public good.” (Judgment of the WSA in Gdansk of 27.02.2020, III SA/Gd 857/19, LEX No. 2939056). But already associations, e.g., fishing associations, can demand that such a case be prosecuted under Art. 31 of the Code of Administrative Procedure (K.p.a.), while participating as a party. Indeed, the applicability of this provision in the category of cases at hand has not been restricted.
Regardless, however, the writer of the complaint to the municipality under Art. 221 K.p.a. should, according to the provisions of Art. 237 par 1. K.p.a., to be informed of the manner of its consideration without undue delay, no later than within a month. If, at that time, the proceedings were not completed with a decision, then under the general rules under Art. 10 of the Law of September 6, 2001. on access to public information (Journal of Laws 2022, item 902, as amended), the notifier will be able to obtain information on how the proceedings were completed. Therefore, one should not break one’s hands when encountering obstructions on the banks, but inform the municipal authorities.
Of course, access to the coastline will not be unrestricted. This is because it is only related to the use of water and does not extend beyond a strip along the shoreline. Therefore, it will not include, for example, access to it anywhere. This is because in such a case, the use of someone else’s property would go beyond the common use of water. Guaranteeing access to water cannot be at the expense of adjacent property owners. Therefore, in Art. 233 para. 3 of the Water Law specifies that “The property owner referred to in paragraph. 1, shall be entitled to compensation from the water owner or the owner of hydrological and meteorological measuring devices, respectively, and the property owner referred to in paragraph (1). 2 – from the municipal budget, under the conditions specified in Art. 469”.
Criminal measures sanctioning obstruction of access to waters
Obstructing access to the shore, in addition to an administrative tort, also constitutes an offense. Based on Art. 477(11) of the Water Law, who, contrary to Art. 233 para. 2 does not provide access to water in a manner that allows for the general use of water commits an offense punishable by a fine. On the other hand, according to Art. 478(2) of the Water Law commits an offense who, contrary to Art. 232 para. 1 bulkheads properties adjacent to public inland surface waters or to the shore of marine waters or the territorial sea at a distance of less than 1.5 m from the shoreline or prohibits or prevents passage through the area.
Therefore, the obstructions encountered must also be notified to the relevant authorities, who should take further action. In the case of the second described offense, the matter is simple – a fine can be imposed for it. Indeed, according to the provisions of par. 1 of the Ordinance of the Minister of Maritime Affairs and Inland Navigation of July 15, 2020. on offenses for which employees of the State Water Management Company Wody Polskie, performing water management control, are authorized to impose fines by way of a penalty ticket, as well as the conditions and manner of issuing authorizations to impose fines by way of a penalty ticket (Journal of Laws of 2020, item 1285) for the offense specified in Art. 478(2) of the Water Law may be fined.
In the case of an offense under Art. 477(11) of the Water Law such a possibility does not exist. Therefore, the case will have to go to court.
Therefore, encountering obstacles that impede access to water, it is necessary to take action under the cited laws. In the future, however, it is worth considering expanding the mandate powers available to Watershed employees. This is because it can affect the acceleration of the removal of barriers to water access.