Expiration of the possibility to issue a decision based on article 234(3) of the Water law

Cases involving changes to water conditions on land that negatively impact neighboring properties often take years to resolve before a proper decision is issued. Additionally, the harmful effects of such changes in water conditions sometimes only become evident after a considerable period (often years). To prevent decisions under Article 234(3) of the Water Law from being based on water conditions from an indefinite time in the past, the legislator introduced a type of “statute of limitations” for issuing such decisions in Article 234(5) of the Water Law. This provision states: Proceedings concerning the decision referred to in paragraph 3 shall not be initiated if more than five years have passed since the neighboring landowner became aware of the harmful impact on their property.

Permissibility of proceedings based on time limits

According to the Provincial Administrative Court in Gdańsk, the time limit mentioned in Article 234(5) of the Water Law means that proceedings to issue a decision requiring the restoration of the previous condition or the implementation of devices to prevent damage cannot be initiated if more than five years have passed since the neighboring landowner became aware of the harmful impact on their property.

The key factor determining the permissibility of initiating proceedings is establishing the moment when the neighboring landowner learned of the harmful impact on their property. The court agreed with the prevailing judicial view that this provision requires evidence that a change in water conditions on the neighboring land is causing damage to the applicant’s property, justifying the initiation of proceedings, and that the applicant has been aware of this fact for no more than five years.
(See Judgment of the Provincial Administrative Court in Gdańsk, October 16, 2024, Case No. II SA/Gd 508/24).

Summary and analysis of the above judgment

Based on Article 234(5) of the Water Law and the court’s position in the judgment, the following conclusions can be drawn:

• The expiration of the five-year period from the date the neighboring landowner became aware of the harmful impact excludes the possibility of initiating proceedings.
• The five-year period is not counted from the date the harmful change occurred or even when the harmful impact actually began, but from the date the neighboring landowner became aware of the harmful impact on their property.
• Therefore, the critical factor is when the neighboring landowner learned about the harmful impact. This fact must be determined when making the procedural decision to initiate proceedings.
• The application to initiate proceedings should include circumstances demonstrating compliance with this time limit. If not included, the authority must request additional information.
  (See the above judgment of the Provincial Administrative Court in Gdańsk: The legislator places the burden of proving this circumstance on the applicant.)
• The burden of proof for meeting the time limit is relaxed at this stage—the applicant only needs to make the circumstances plausible, not conclusively prove them.
  (See Judgment of the Provincial Administrative Court in Kraków, May 7, 2019, Case No. II SA/Kr 260/19).
• Administrative authorities initiating proceedings ex officio must also obtain this information beforehand from the landowner whose property is affected by changes on the neighboring land.
  (See the above judgment of the Provincial Administrative Court in Gdańsk.)
• Failure to demonstrate compliance with the time limit entitles the authority to refuse to initiate proceedings.

Termination of proceedings due to time xxpiration

If an authority initiates proceedings because:

1. It failed to verify compliance with the above time limit during the initiation phase; or
2. It is later revealed that, contrary to initial findings, the applicant became aware of the harmful impact earlier than claimed in the application, and this occurred more than five years before submitting the application;

Then the proceedings should be terminated. The authority has a legal basis to issue a decision terminating the proceedings under Article 105(2) of the Administrative Procedure Code.
(See the above judgment of the Provincial Administrative Court in Gdańsk and the judgment of the Provincial Administrative Court in Kraków).

The issue of the proceedings becoming moot due to the expiration of the time limit can and should be examined at any stage of the proceedings, including during the appeal process. (See the above judgment of the Provincial Administrative Court in Gdańsk: The objection regarding the expiration of the time limit under Article 234(5) of the Water Law was raised in an appeal against the first-instance authority’s decision.)

Given the importance attributed to adhering to the time limit (its violation eliminates the possibility of resolving the case substantively and issuing a decision on the merits), the moment the landowner becomes aware of the harmful impact on their property should be established without doubt. (See Judgment of the Provincial Administrative Court in Poznań, September 20, 2023, Case No. III SA/Po 347/23, and the above judgment of the Provincial Administrative Court in Gdańsk).