Agnieszka Sznajder

Gloss to the decision of the Polish Supreme Administrative Court of February 23, 2022, case file no. III OSK 820/21 (partially approving)

The gloss concerns the decision of the Polish Supreme Administrative Court of February 23, 2022, which examined a complaint against a decision imposing an obligation to pay a fee for water services under the New Water Law Act of July 20, 2017.

The content of the aforementioned decision raised issues that cause interpretative difficulties, but at the same time, due to the short duration of the regulation being in force, have not yet been the subject of a wider examination by the administrative judiciary.

In the case which is the subject of the decision, the entity charged with the obligation to pay the fee challenged the decision of the commune head determining the amount of the fee, challenging both how the authority determined what specific land should be considered real property within the meaning of the New Water Law Act, and also objected to the authority’s failure to recognize in the decision the individual sewage system located on the complainant’s land and discharging rainwater from the complainant’s land into a ditch as a stormwater drainage system within the meaning of the provisions of the aforementioned Law, accounting for the area where the complainant used construction facilities, the construction of which was associated with a reduction in natural terrain retention.

In assessing the case, the court of the first instance primarily examined the scope of the concept of real property and the area included in open or closed stormwater drainage systems.

Both the Regional Administrative Court, ruling on the complaint in its October 18, 2018 decision, case file no. II SA/Sz 735/18, and the Polish Supreme Administrative Court did not share the applicant’s position, dismissing the complaint.

The decision of the Polish Supreme Administrative Court concerns a problematic issue, raising many doubts even before the legislation introducing it came into force.

In the opinion of the author of the gloss, the court in question, in its decision, failed to address concerns that have arisen around the regulation of fees for the reduction of natural terrain retention.