The role of an expert in proceedings under Article 234 of the Water Law – part 1

In this text, I would like to focus on the first aspect of the role of an expert opinion in proceedings conducted pursuant to Article 234(3) of the Water Law, namely whether such an opinion is always necessary in the proceedings, or whether the case can be concluded without the authority conducting the case relying on this form of evidence.

Is an expert opinion in such cases the rule?

Anyone who reads the reasoning behind most rulings of administrative courts adjudicating in cases under Article 234(3) of the Water Law will find that in this type of case, a hydrology expert was generally appointed. This results from the fact that these cases are often very complex and require specialist knowledge (in the field of hydrology). Even when the staff of the administrative bodies conducting the case possess some knowledge in this area, it is often insufficient.

Therefore, as stated by the Provincial Administrative Court in Gliwice (in the judgment of 7 July 2016, ref. II SA/Gl 336/16): the rule is that in cases concerning the restoration of water conditions on land, evidence in the form of an expert opinion should be obtained, among other things to determine whether damage occurred on a neighboring plot and whether there is a causal link between the change in the water conditions and the damage.

This view is also supported by the case law of the Supreme Administrative Court in Warsaw (judgment of 3 February 2015, ref. II OSK 1621/13): explanatory proceedings concerning the regulation of water relations on land, including the possible imposition of obligations in administrative proceedings under Article 29(3) of the Water Law, due to their nature and complexity, require the use of specialist knowledge.

These proceedings cannot be limited merely to confirming the execution of certain works on the land. The authority must establish and demonstrate the causal relationship between the change made on the plot and the damage that resulted on neighboring land. This generally requires appropriate knowledge in the field of hydrology, water management, water law proceedings, and land drainage, and may also involve the conduct of appropriate studies, analyses, and calculations. It is therefore appropriate in this category of cases to admit evidence in the form of an expert opinion.

Examples of rulings confirming this rule include:

1. Judgment of the Provincial Administrative Court in Kielce of 18 June 2014, ref. II SA/Ke 373/14.
2. Judgment of the Provincial Administrative Court in Łódź of 4 July 2013, ref. II SA/Łd 336/13 (To assign liability for a harmful change in water conditions, it is necessary to determine a causal link between the action and the damage. To clarify whether the works performed on a property led to a change in water conditions, it is justified for the administrative authority to admit expert evidence. Without specialist knowledge, it is impossible to assess whether a change in water conditions occurred.)
3. Judgment of the Provincial Administrative Court in Gorzów Wielkopolski of 3 July 2013, ref. II SA/Go 338/13 (Assessing changes in water conditions on land requires specialist knowledge and appropriate expertise in fields such as hydrology, water management, land drainage, and water law proceedings, as well as possibly conducting relevant analyses, studies, measurements, or calculations.)
4. Judgment of the Provincial Administrative Court in Łódź of 21 June 2013, ref. II SA/Łd 263/13 (Where there is a difference of opinion between the complainant and the alleged perpetrator of water condition disturbance, an expert opinion may be the only evidence determining the existence of a causal relationship between a specific action and the state of water on neighboring land and, if that link is confirmed, indicating the type of devices necessary to prevent damage.)

Exceptions to the rule

Thus, in such cases, the appointment of an expert and reliance on their opinion is the rule. However, there are exceptions to this rule:

1. If the case is simple and straightforward – meaning that, based on evidence such as an on-site inspection of the property subject to the proceedings (or possibly other evidence such as photographs, witness statements, maps), it is possible to clearly determine whether a change in water conditions harmful to neighboring land has occurred, and if so, how to restore the previous state or what preventive measures can be taken to avoid damage (see the judgment of the Provincial Administrative Court in Kraków of 9 September 2016, ref. II SA/Kr 581/16. Specialist knowledge is necessary in those cases where the issue has significance for the resolution and exceeds the general knowledge and life experience of persons with a general education. […] A request for expert evidence, in light of Article 84 of the Code of Administrative Procedure, is binding on the authority only if determining the facts requires specialist knowledge. It must therefore concern facts that cannot be established using general knowledge, life experience, and logical reasoning available to the administrative authorities.)
2. When the staff of the authority conducting the proceedings possess the relevant expertise – that is, they have the specialist knowledge that would otherwise be sought in an expert opinion (see the judgment of the Provincial Administrative Court in Łódź of 3 August 2016, ref. II SA/Łd 283/16. Assessing changes in water conditions requires specialist knowledge and expertise in hydrology, water management, land drainage, and water law proceedings, as well as possibly conducting relevant analyses, studies, measurements, or calculations. Inspections by individuals without specialist knowledge in this area are not always sufficient for an objective assessment of whether a change in water conditions harmful to neighboring land has occurred).