Polski
The owner of a thing should be aware that the scope of property rights consists not only of rights (e.g., to use the thing), but also of certain obligations. An example of this is for the property owner to refrain from activities that would interfere with the use of neighboring properties beyond the average measure resulting from the socio-economic use of the property and local relations (Art. 144 of the Civil Code [1]). In view of this, the principle known from the literature of “wolnoć Tomku w swoim domku” does not apply in Polish law.
Responsibilities of the owner of water facilities
There is a special obligation on the owner of a water device, who is obliged to maintain the device in good condition. Indeed, according to Art. 188 para. 1 of the Law of July 20, 2017. Water Law [2], hereafter referred to as the Water Law, maintenance of water facilities is the responsibility of their owners and consists of operation, maintenance and repair to preserve their function. Under Art. 17 para. 1 point 1 of the aforementioned. Law [3], the obligation described above will also apply to freeholders and perpetual usufructuaries. It should be clarified that a self-owner is an entity that actually owns the thing as if it were the owner, but the owner is not (Article 336 of the Civil Code).
It also raises the question of what water facilities are. Well, the Water Law defines them as devices or structures used to shape or use water resources [4]. At the same time, the legislator used an exemplary list, mentioning, among other things. canals and ditches. The latter were further defined as artificial troughs carrying water continuously or periodically, with a bottom width of less than 1.5 meters at the mouth [5]. Ditches as linear facilities are often part of a city’s drainage system to prevent flooding on public and private land. Therefore, regular and proper maintenance of these facilities is extremely important for the common good of the local community.
This paper outlines the basic procedures that may apply when the obligation to maintain water facilities, particularly ditches, is not properly performed.
Legalization and demolition of water facilities
In Art. 190 of the Water Law provides for the legalization and demolition of a water facility made without the required water permit or notification. The authority competent to handle these matters is the authority responsible for issuing water permits for the construction of water facilities, that is, as a rule, the director of the basin management board of the State Water Company Wody Polskie (PGW WP) [6]. If the owner of the water facility has not applied for legalization or has not obtained a decision on legalization of the water facility, the authority shall impose on him, by decision, the obligation to decommission the facility, setting the conditions and deadline for performance of this obligation [7]. The legislator first points to legalization.
Thus, before a demolition order is issued, the authority should give the owner of the device an opportunity to apply for legalization, setting an appropriate deadline. In doing so, it should be noted that it is the right of the owner, not his obligation. Only if he does not use it, or uses it but does not obtain a legalization decision, will a demolition decision be issued.
The provision discussed above uses the phrase “shall impose” rather than “may impose.” Thus, the decision is binding and not discretionary, that is, the authority is obliged to issue a decision to order demolition if certain legal prerequisites have been met. However, the legislator has provided for an exception. If the owner of a water device has not obtained a decision on its legalization, and the removal of the device is technically or economically impossible, the authority may impose on the owner, by decision, the obligation to implement damage prevention devices [8].
According to Art. 17 para. 1(4) of the Water Law, the provisions of the Law regarding the construction of water facilities shall apply mutatis mutandis to the reconstruction, expansion, superstructure, reconstruction, demolition or liquidation of such facilities. Thus, Art. 190, in conjunction with Art. 17 para. 1(4) of the Water Law, also applies to situations where a water device has been illegally (i.e., without a permit or water law notification) reconstructed or decommissioned.
Indeed, according to the judgment of the Regional Administrative Court (WSA) in Gdansk on July 2, 2013, II SA/Gd 98/13: “(…) If there has been backfilling of a ditch, which is, in fact, its liquidation (demolition of a water device), such action requires a water permit. In turn, the provision of Article 64a (5) of the Water Law allows to impose by decision the obligation to dig up a ditch buried without the relevant permit, setting the conditions and deadline for carrying out this action, and the authority competent to issue a decision in this regard is the authority competent to issue a water law permit, i.e. the district governor. (…)” [9].
The cited judgment refers to the previous legal status, i.e. Law of July 18, 2001. Water law [10], referred to as the 2001 Water Law. However, due to analogous legal solutions, the ruling remains valid, and the competencies of the district governor were taken over by the PGW WP authority.
Improper maintenance of a water facility
Another proceeding pertaining to the issue at hand is that set forth in Article 191(1) of the Water Law for improper maintenance of a water facility. The decision issued in this proceeding is the so-called. a restitution decision and its purpose is to restore the previous function of the device, lost as a result of improper maintenance, or to perform damage prevention devices or to eliminate the damage when the consequence of improper maintenance of a water device is its harmful impact on water or land [11]. The procedure in this regard also belongs to the authority competent for water permits for water facilities.
It is worth adding that Article 191(1) of the aforementioned. of the law applies in the situation of inadvertent acts, negligence in the performance of the duty under Art. 188 para. 1 of the Water Law. In a situation where there has been deliberate illegal removal or reconstruction of a ditch, the appropriate legal basis for proceeding will be Article. 190, in conjunction with Art. 17 para. 1 point 4 of the Water Law, as outlined above.
If it is not possible to determine the function of a water facility, the authority – bearing in mind that the use of water must not cause deterioration of water and ecosystems dependent on it, waste of water or water energy, and must not cause damage – may by decision redefine the function of the facility and order its reconstruction or liquidation [12]. The latter regulation applies to those devices whose function is unknown. For example, this applies to ditches that have existed for several decades and it is not known de facto what function they serve.
Water reclamation facilities
In the provisions of Art. 205-206 of the Water Law regulates the obligation to maintain water reclamation facilities and the enforcement of this obligation by the WP PGW authority, i.e. The director of the Regional Water Management Board of PGW WP (director of RZGW). According to Art. 195 of the Water Law, water reclamation involves regulating water relations to improve the productive capacity of the soil and facilitate cultivation. As for water reclamation facilities, these include. ditches together with functionally related structures, if they serve the purposes of Art. 195 Water Law [13].
Maintenance of water reclamation facilities is the responsibility of the landowners concerned, and if the facilities are covered by a water company operating in the municipality or an association of water companies in which a water company operating in the municipality is affiliated, to that company or that association of water companies [14]. In a situation where, for example, a drainage ditch (not covered by a water company or association of water companies) is not properly maintained and causes flooding of neighboring land, then the director of the Regional Water Management Board shall establish, by decision, detailed scopes and deadlines for its execution in proportion to the benefits to landowners [15].
It should be noted that the obligation to maintain a drainage facility is not on the owner of the facility, but on the affected landowners, i.e. those who benefit from the operation of the facility. Thus, they can be both the owners of the ditch (owners of the land on which the ditch is located) and owners of neighboring properties.
Violation of water relations
The proceedings set forth in Art. 234 of the Water Law on violation of water relations and conducted by the mayor/mayor/mayor. The source of these proceedings is often neighborhood disputes that occur in small towns, especially in rural areas. A landowner who feels aggrieved by the actions of a neighbor in altering the status of water on the land does not have to file a lawsuit to protect his property or possession with the court, but it is sufficient for him to submit a request to the municipal authority.
According to Art. 234 para. 3 of the Water Law, if the changes in the condition of water on the land caused by the landowner detrimentally affect the neighboring land, the mayor, mayor or city president, ex officio or on application, by decision, orders the landowner to restore the previous condition or to perform devices to prevent damage, setting a deadline for the performance of these activities. These proceedings, as a rule, are free of charge, but due to their specialized nature, they are lengthy – often lasting many years, taking into account the judicial and administrative procedure [16].
The above legal institution is deeply rooted in the tradition of Polish water law. Indeed, analogous solutions functioned on the grounds of all laws regulating water management immediately after Poland regained independence [17], i.e. water law of September 19, 1922. [18], the Law of May 30, 1962. Water law [19], the Law of October 24, 1974. Water law [20] and the 2001 Water Law.
If, as a result of the operation of the water device, there is a change in the state of the water on the land, then the procedure for violating water relations will not apply. This is because according to the decision of the Supreme Administrative Court of February 5, 2019, II OW 186/18: “The hypotheses of the norms decoded from the provisions of Article 234 and Article 191 of the Water Law are different. The norm of Article 234(3) of the Water Law applies when a landowner has caused changes in the state of water on the land that harmfully affect neighboring land. On the other hand, Article 191(1) of the Water Law provides the basis for adjudication by the competent authority of the Water Authority in cases of improper maintenance of a water facility.” [21].
A similar view was expressed in the judgment of the WSA in Cracow on November 4, 2016. II SA/Kr 912/16, issued while the previous legal regime was still in force, where it was indicated that: “1. The purpose of Art. 29 p.w. is to ensure the non-deteriorated state of water relations on the land, to prohibit interference with the actual state of water on the land if this may have a detrimental effect on neighboring land, and not to order the maintenance and upkeep of water facilities or the prohibition of their destruction, which are subject to the dispositions of separate regulations. 2. The provision of Art. 29 paragraph. 3 p.w. applies when the changes in the state of water on the land result from activities that do not involve existing water facilities, but only incidentally affect water relations in the surrounding area (…)” [22].
Criminal provisions
In addition to administrative procedures, the legislature also provided for criminal sanctions. According to Art. 476 para. 1 of the Water Law, whoever uses water or performs water facilities or other activities requiring a water permit without the required water permit or exceeds the conditions specified in the water permit, shall be punished by arrest, restriction of liberty or a fine. In addition, whoever, contrary to the provision of Article 188 (1) of the Water Law, fails to maintain water facilities or contrary to the provision of the Art. 192 para. 1 point 1 aforementioned. Act destroys or damages water facilities, shall be punished by a fine (Article 477(6) and (7) of the Water Law).
In view of this, a person who arbitrarily eliminates or plugs a ditch, or fails to perform the duty to maintain it, commits an offense and is subject to punishment on this account, regardless of the administrative duties imposed on him.
Summary
The authorities of the WP PGW have important responsibilities for enforcing the duty to properly maintain water facilities. Public awareness of this issue is relatively low. Many people believe that if a ditch is on their land, they have the right to do what they see fit with it, such as they can fill it in or plug it up, without thinking at all about the function it serves. Therefore, it is important for the authorities to be determined in taking the described proceedings, so that those who do not take care of water facilities or intentionally destroy them will bear the consequences of their actions.
Jaroslaw Dolny – legal counsel, long-time employee of public administration, including water management structures (RZGW, Wody Polskie), practitioner of the application of law in a law firm, associate of the municipality in the field of proceedings for violation of water relations, currently a local government employee (head of department) in a municipal organizational unit, dealing with, among other things. water management, experienced trainer and author of scientific publications on Water Law and Kpa, participant in the debates “Water Roundtable: Water Management – Challenges for Poland”, “II Water Roundtable 2022: A city responsible for water” and “III Water Roundtable 2023: Managing Water in Emergencies.”
Source:
[1] Law of April 23, 1964. Civil Code (Journal of Laws 2022, item 1360, as amended), referred to as the Civil Code.
[2] OJ. of 2022. pos. 2625, as amended. zm.
[3] According to this provision: “The provisions of the Law relating to: 1) owners – shall be applied mutatis mutandis to self-owners and perpetual usufructuaries, and in the case of operation of the installation within the meaning of the Art. 3 point 6 Law of April 27, 2001. – Environmental Law – to the operator of the installation”.
[4] Art. 16 Section 65 of the Water Law
[5] Art. 16 point 47 of the Water Law
[6] Art. 397 para. 3 point 2 of the Water Law
[7] Art. 190 para. 13 of the Water Law
[8] Art. 190 para. 14 of the Water Law
[9] Judgment of the WSA in Gdańsk dated July 2, 2013, II SA/Gd 98/13. A similar position, also from the previous legal regime, was presented in the judgment of the WSA in Cracow dated November 4, 2016, II SA/Kr 912/16.
[10] OJ. 2017. pos. 1121, as amended. zm.
[11] Judgment of the Supreme Administrative Court (NSA) dated October 18, 2022. III OSK 5453/21.
[12] Art. 191 para. 3 of the Water Law
[13] Art. 197 para. 1 point 1 of the Water Law
[14] Art. 205 of the Water Law
[15] Art. 206 of the Water Law
[16] J. Dolny, Change in the state of water on the ground, “Water Management” 2020/6, p.22
[17] J. Dolny, Violation of water relations – evolution of the institution in the last 100 years, Public Law Review 4/2023, p.19
[18] OJ. 1922. No. 102, item. 936
[19] OJ. 1962. No. 34, item. 158
[20] OJ. 1974. No. 38, item. 230
[21] Order of the Supreme Administrative Court of February 5, 2019, II OW 186/18
[22] Judgment of the WSA of November 4, 2016. II SA/Kr 912/16
