Institution protecting against harmful changes to water conditions on neighboring land

As a rule, a property owner does not have unlimited rights to their property. The boundaries of their ownership rights, including the use of the property, may be restricted by generally applicable laws, as set out by the Water Law Act of July 20, 2017. Article 234, paragraph 1 of this law specifies the following prohibitions for the landowner (indicating what they cannot do with their property). These are, in order:

• Prohibition of discharging water onto neighboring land.
• Prohibition of discharging sewage onto neighboring land.
• Prohibition of altering the direction and intensity of runoff of rainwater or snowmelt on their land, as well as altering the direction of runoff from springs, if such changes cause damage to neighboring land.

While the first two prohibitions are ones that arise directly from the law (Article 234, paragraph 1, point 2 of the Water Law, described above in points 1 and 2), and should be enforced based solely on this regulation, the prohibitions based on Article 234, paragraph 1, point 1 of the Water Law (described above in point 3) require the issuance of an appropriate decision for enforcement.

Therefore, if someone believes that the natural flow of rainwater or snowmelt on neighboring land has been altered, and this change negatively affects their property (land), they should file a request for the initiation of the appropriate proceedings with the village head, mayor, or city president (depending on which is the competent executive authority for their municipality). They should do the same if they observe damage caused by the alteration of the natural flow of water from springs.

Based on the above, the following situations can be distinguished:

When a landowner begins to discharge water onto neighboring land that was not previously (naturally) discharged there—this is prohibited under the Water Law and can be enforced by administrative authorities (in administrative enforcement proceedings).

When a landowner discharges sewage onto neighboring land—regardless of whether they did so previously or only recently started doing so—this is also prohibited under the Water Law and can be enforced by administrative authorities (in administrative enforcement proceedings).

When a landowner makes changes on their property, and those changes cause damage to neighboring land, and these changes involve:

• Changing the direction or directions of the natural runoff of rainwater or snowmelt from their land onto neighboring land;
• Changing the intensity of the natural runoff of rainwater or snowmelt from their land onto neighboring land;
• Changing the direction of the natural runoff of water from springs.

In such cases, affected landowners may seek protection through administrative proceedings (provided for by Article 234, paragraph 3 of the Water Law—If the changes to water conditions on the land caused by the landowner adversely affect neighboring land, the village head, mayor, or city president, either ex officio or upon request, will issue a decision ordering the landowner to restore the previous condition or to construct facilities to prevent damage, setting a deadline for these actions), initiating them themselves or waiting for the authority to initiate such proceedings ex officio (the second option does not seem optimal, as Article 234, paragraph 5 of the Water Law currently provides for a 5-year period from the day the damage is discovered to initiate such proceedings).

Although the regulations concerning the institution commonly referred to as changes to water conditions on land to the detriment of neighboring land or changes in water relations to the detriment of neighboring land are not extensive (it can be noted that this institution is essentially found mainly in Articles 234 and 235 of the Water Law), their interpretation and practical application can cause difficulties or doubts. In a series of articles devoted to this institution, the author will examine its aspects, trying to explain them to readers. The practice of applying these regulations by public administrative authorities, and later administrative courts, sometimes leads to mutually exclusive conclusions or interpretations of specific provisions.

This creates uncertainty for citizens when dealing with this institution—uncertainty about what decision will be made in their case. This often results in lengthy proceedings in such cases and repeated reviews by the authorities conducting them or the administrative courts reviewing the decisions made. In subsequent articles, the author will not only provide information on possible interpretations of legal concepts but will also share experiences from cases they have handled, where seemingly obvious issues have led to what they consider absurd or at least questionable decisions by administrative authorities or even courts.

Piotr Tarkowski – law and administration graduate of the Jagiellonian University in Krakow. Former member of the Local Government Appeal Board in Krakow and former legal advisor to the Zabierzów Municipality. After completing his legal advisor apprenticeship at the District Chamber of Legal Advisors in Krakow, he has been running his own law firm since the end of 2014. He is the author of numerous publications and a trainer in administrative law. He specializes, among other things, in Water Law, in which he advises clients from all over Poland and represents them in administrative and administrative court proceedings. Author’s website dedicated to Water Law: https://kancelariatarkowski.pl/oferta-wodne.php, https://prawowodne.com/.