Article 234(3) of the Water Law states that if changes to water conditions on a property caused by its owner negatively affect neighboring properties, the mayor, town mayor, or city president, either ex officio or at the request of a party, may issue a decision requiring the owner to restore the previous condition or implement measures to prevent harm, setting a deadline for these actions. This raises the question of what type of harmful impact on neighboring land the legislator intended.
The answer to this leads to multiple interpretations, as evidenced by legal practice. When harmful water condition changes on one property affect another, the consequences (i.e., damages) can vary, but they share a common factor – they result from the direct or indirect influence of water.
The most common consequences of harmful water condition changes on adjacent land
The most frequent consequence of harmful water condition changes on neighboring land is so-called “flooding of the adjacent property.” This means that during rainfall (usually heavy downpours, not ordinary rain) or during thawing, water from property no. 1 – which previously did not flow at all or not at such a rate/quantity onto property no. 2 – now does and causes damage. The most common damage is the proverbial flooding of the adjacent property, where water from rain or thawing covers it in whole or part, and then, before it evaporates or is absorbed into the ground (or partially drains away), remains on the land.
Due to climate change, and the fact that many areas of Poland are currently experiencing hydrological drought, another harmful effect of water condition changes on adjacent land could be reduced water flow from the neighboring property, which could cause drying out of the adjacent property (including, for example, plant life dying off).
Types of damages from administrative court rulings
Below are interesting examples of damages identified by administrative courts and the situations causing them:
- Digging a ditch in such a way that it deliberately directs water to flood the neighboring property – the damage has not yet occurred, but it is certain that it will in the future (Voivodeship Administrative Court in Krakow, ruling of June 5, 2013, case no. II SA/Kr 315/13).
- Blocking the drainage of rainwater from neighboring areas, e.g., by filling a depression through which rainwater from higher areas previously flowed, or raising the land to prevent water from draining, causing water to collect in areas where it did not previously gather but flowed freely (Voivodeship Administrative Court in Białystok, ruling of June 10, 2014, case no. II SA/Bk 265/13).
- Damage may manifest as a material loss in the party’s assets or create a situation where it is no longer possible to use the property in its usual manner (Voivodeship Administrative Court in Rzeszów, ruling of June 16, 2011, case no. II SA/Rz 334/11) – thus, damage could include the destruction of the party’s fixed assets, e.g., soaking and subsequently ruining furniture, books, or flooring materials. It could also mean that a permanently waterlogged field is no longer suitable for agricultural use – nothing will grow, and it will start to be overgrown by plants typical of waterlogged areas.
- Damage could consist “merely” of the land becoming waterlogged (see Voivodeship Administrative Court ruling of June 27, 2024, case no. II Sa/Kr 629/24).
- The parties attempted to argue that the damage could consist of the “deterioration of the air-water conditions in the soil and the decline in the soil’s productive potential,” but the Voivodeship Administrative Court in Rzeszów disagreed with them (in this specific case – ruling of June 25, 2024, case no. II SA/Rz 363/24). Nevertheless, it is reasonable to agree that the deterioration of the soil’s productive capacity or a decrease in property value could also constitute damage warranting a decision under Article 234(3) of the Water Law.
- Damage could involve the potential risk of flooding neighboring land, dependent on extraordinary events, and does not have to be associated with material loss (Voivodeship Administrative Court in Lublin, ruling of May 29, 2014, case no. II SA/Lu 250/14). However, it should be noted and emphasized that rulings discussing potential, rather than actual, damage are in the minority, and currently, the prevailing view in the rulings of the Supreme Administrative Court is that for a decision under Article 234(3) of the Water Law to be issued, the damage to the land must be real.