European Court of Human Rights

FOURTH SECTION

Application no. 64719/09
by Teresa WILK
against Poland
lodged on 25 November 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Teresa Wilk, is a Polish national who was born in 1938 and lives in Warszawa.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Proceedings before the Mayor of Warszawa-Ursynów

(a)  Facts before 1 May 1993

On 8 December 1992 the applicant requested the Warszawa-Mokotów Municipal Office (Urzad Dzielnicowy Gminy Warszawa-Mokotów) to order her neighbour, a certain K.K., to carry out works on his property in order to prevent the flow of excess rainwater which, as she claimed, was flooding her house.

(b)  Facts after 1 May 1993

On 31 August 1993 three inspectors from the Municipal Office visited both concerned properties. They found that the ground level on the applicant’s neighbour’s land had been raised by 1.5 metres above the base level. They moreover observed that the drainage pipe in the fence separating both plots had been clogged by concrete. The inspectors ordered K.K. to submit a copy of the construction permit and the technical documentation concerning the construction of his house. They also ordered him to find an adequate solution for the drainage of excess rainwater.

On 27 June 1994 the Mayor of Warszawa-Ursynów (Burmistrz Gminy Warszawa-Ursynów; hereafter: the Mayor) discontinued the administrative proceedings. He found that the applicant’s neighbour’s house had been built in accordance with a plan previously approved by the district architect (architekt dzielnicowy) and that the situation complained of by the applicant did not warrant an intervention by the construction supervision authority.

On 16 July 1994 the applicant appealed.

On 19 September 1994 the Warszawski Governor (wojewoda, hereafter: the Governor) quashed the Mayor’s decision and remitted the case. In the Governor’s view, the construction of K.K.’s house appeared not to have been fully in compliance with the construction plan approved by the district architect. Moreover, the Governor considered that the Mayor had not sufficiently elucidated the issue of the origins of the rainwater flooding the applicant’s house. In his opinion, the excess rainwater might have been coming onto the applicant’s property from K.K.’s land or it might have been due to the faulty old rural drainage well system in the applicant’s street.

On 10 November 1994 the Mayor ordered K.K. to produce a detailed technical report on the state of his house and its drainage well system, with particular regard to the groundwater conditions and their possible impact on the adjacent street and the applicant’s property.

Towards the end of 1994, road works were carried out in the applicant’s street with the aim of hardening its surface. The street was covered by a mix of asphalt road planings (destrukt asfaltowy) and its level was raised on average by several centimetres. No drainage well system was built.

On 13 January 1995 the Governor dismissed K.K.’s appeal against the Mayor’s decision of 10 November 1994. In passing, the Governor observed that both the applicant and the Municipal Board (zarzad gminy), the latter in its capacity as the owner of the street, should also be requested to produce the necessary technical reports.

On 25 September 1995 the Mayor once again discontinued the proceedings. On the basis of two technical reports, he considered that K.K.’s land had not been at the origin of the rainwater flooding the applicant’s property. The Mayor further observed that the old rural drainage well system in the applicant’s street was often clogged-up by mud and debris, and concluded that this had most likely resulted in the flow of excess rainwater onto the adjacent plots of land. He further noted that the applicant’s garage entrance had been located seven centimetres below the street level, which further increased the risk of its being flooded by rainwater. Lastly, the Mayor observed that the flooding of the basement of the applicant’s house had been possibly caused by poor planning at the time of its construction and by the inadequate insulation of the basement walls.

On 9 October 1995 the applicant appealed. She pointed out that her house had been constructed in the 1950s and that, for the period of 40 years, she had never experienced any problems with basement flooding. She further explained that the difference in the level between her property and the street had been due to the street’s newly laid asphalt surface.

On 16 August 1996 the Governor quashed the Mayor’s decision of 25 September 1995, finding that also the applicant should have been afforded an opportunity to submit a technical report in support of her statements.

On 20 December 1996 the Mayor requested the applicant to submit such an expert technical report.

On 16 September 1997 the Mayor once again summoned the applicant to submit the report.

According to the applicant’s submissions, she could not afford to pay the expert’s fees and she had never submitted the requisite report.

On 17 December 1999 the Mayor discontinued the proceedings and his decision subsequently became final.

2.  Proceedings before the construction supervision authority

By letters of 22 June, 28 September and 6 December 1999, the applicant requested the Warszawa District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego, hereafter: the District Inspector) to prevent the flooding of her house by water coming from the neighbouring properties.

On 7 January 2000 the District Inspector instituted the requested administrative proceedings.

On 19 May 2000 the District Inspector issued another decision, in which he refused to institute the requested proceedings. He first of all observed that the old rural drainage well system in the applicant’s street had been damaged by the construction of new houses on the adjacent properties, built without the Municipal Office’s proper supervision. He further considered that the reasons for the flooding of the applicant’s house had been manifold and could not be linked solely to the construction of new houses in the neighbourhood. In this respect, the District Inspector noted that, according to the technical report produced by the applicant’s neighbour K.K. in 1995, the construction of his house had had no impact on the groundwater situation of the applicant’s property. The District Inspector further confirmed that the hardening of the road surface of the applicant’s street had lowered the level of the section of the street located near the applicant’s house, and considered that this might have caused occasional rainwater overflows. He considered that the situation could be remedied by repairing the relevant section of the road and advised the applicant to address the Mayor with an appropriate request to that aim. He further noted that the Municipal Office had no immediate plans to build a modern drainage well system in the applicant’s street, but considered that the construction of a sanitary sewage system (kanalizacja sanitarna) was possible. The District Inspector concluded that he had no legal means at his disposal to remedy the situation complained of by the applicant, and advised her to either directly address the Mayor with her complaints or to bring a civil action for the protection of her property rights.

On 2 June 2000 the applicant appealed.

On 4 January 2002 the applicant requested the Warsaw Regional Court (Sad Okregowy) to admit the administrative case file as evidence in the civil proceedings which she had instituted against the city of Warsaw and her neighbours. Following a subsequent request from the Regional Court’s, the District Inspector transferred the administrative case file to it.

On 25 March 2002 the Mazowiecki Regional (Wojewódzki) Inspector of Construction Supervision (hereafter: the Regional Inspector) quashed the District Inspector’s decision of 19 May 2000. The Regional Inspector noted at the outset that the impugned decision had been illogical, as the District Inspector could not refuse to initiate the administrative proceedings which he had already initiated, by virtue of his own decision given on 7 January 2000. Moreover, the Regional Inspector observed that the applicant had already previously instituted a set of administrative proceedings before the Mayor of Warszawa-Ursynów which concerned the flooding of her house, and ordered the District Inspector to verify whether the current and the previous sets of proceedings had had the same subject-matter. In the affirmative, in the Regional Inspector’s view, it would be appropriate to discontinue the new set of proceedings and to resume the previously discontinued one.

On 11 April 2003 the applicant complained directly to the District Inspector about his inactivity.

On 28 April 2003 the District Inspector informed the applicant that the files of the case had been transferred to the Warsaw Regional Court in connection with a set of civil proceedings which she had instituted. He further explained that, without the case file, the administrative proceedings could not be pursued and that they would only be resumed after the case file had been returned.

On 26 April 2006 the applicant filed with the Regional Inspector a complaint under section 37 of the Code of Administrative Procedure, alleging the District Inspector’s inactivity.

On 25 May 2006 the Regional Inspector granted the applicant’s complaint. He observed that the District Inspector had been passively waiting for the return of the case file from the Warszawa Regional Court and he considered this to be administrative inactivity. He reminded the District Inspector about his duty to take a proactive role in the examination of the case and ordered him to take steps to have the case file returned by the Regional Court without any further delay.

On 5 June 2006 the District Inspector requested the Warszawa Regional Court to return the case file.

Following the return of the case file, on 23 August 2006 the District Inspector ordered the President of Warsaw (Prezydent Warszawy) to submit an expert opinion concerning the technical conditions of the road works carried out in 1994 in the applicant’s street. The District Inspector justified his decision by the fact that the timing of the road works in question had coincided with the applicant’s first complaints about the flooding.

Both the applicant and the President of Warsaw appealed.

On 15 January 2007 the Regional Inspector quashed the District Inspector’s decision of 23 August 2006. He acknowledged that the municipal road works in the applicant’s street might have been one of the causes of the rainwater overflow on the applicant’s property, but observed that a technical report, prepared by a court expert in the civil proceedings conducted before the Warszawa Regional Court, had linked the systematic flooding of the applicant’s house also to the fact that the applicant’s neighbours had raised the ground level of their properties. The Regional Inspector concluded that an administrative hearing with all the parties concerned was necessary in order to sufficiently clarify the complex circumstances of the case.

On 27 February 2008 the District Inspector discontinued the administrative proceedings in so far as they concerned the quality of the road works carried out in the applicant’s street. The decision was not served on the applicant.

On 9 June 2008 and on 2 December 2008 the applicant filed a complaint with the Regional Inspector, requesting him to quash the District Inspector’s decision of 27 February 2008. She argued that the District Inspector’s decision had not been served on her and that, therefore, she could not appeal against it.

On 15 January 2009 the Regional Inspector informed the applicant that her complaint would be examined by 27 January 2009.

On 27 January 2009 the Regional Inspector extended the time-limit by another twelve days.

On 9 February 2009 the Regional Inspector informed the applicant that steps would be taken with a view to assessing whether there were grounds to quash the District Inspector’s impugned decision of 27 February 2008. It is unclear whether that decision was subsequently quashed.

On an unspecified date, the applicant filed another appeal under section 37 of the Code of Administrative Procedure with the Regional Inspector, alleging the District Inspector’s inactivity.

On 14 May 2009 the Regional Inspector granted the applicant’s appeal and ordered the District Inspector to issue a decision in the case within a time-limit of seven days.

On 25 May 2009 the District Inspector discontinued the administrative proceedings in so far as they concerned the flooding of the applicant’s house. He found that both the raising of the ground level on the applicant’s neighbours’ properties and the road works which had elevated the level of the street had contributed to the emergence of a rainwater drainage problem in the applicant’s neighbourhood. He then considered that the occasional flooding of the applicant’s house had occurred not because of the two above-mentioned factors, but could rather be explained by the overall rapid urban development of the entire neighbourhood. Lastly, the District Inspector noted that the Municipality apparently intended to build a new rainwater drainage well system in the foreseeable future, but that this would first require the carrying out of land drainage works in the entire surrounding area. In the light of his findings, he concluded that there were no grounds for the intervention of the construction supervision authority.

On 15 June 2009 the applicant appealed.

On 22 July 2009 the Regional Inspector quashed the District Inspector’s decision. The Regional Inspector found, on the basis of the documentary evidence gathered in the case, that the flooding of the applicant’s property had resulted both from the road works carried out in the applicant’s street and from the fact that each of the applicant’s neighbours had elevated the ground level of their respective plots. The Regional Inspector concluded that the District Inspector had failed to correctly assess the causal link between the above-mentioned facts and the flooding of the applicant’s land.

On 16 March 2010 the applicant filed another appeal under section 37 of the Code of Administrative Procedure to the Regional Inspector, alleging inactivity on the part of the District Inspector.

On 14 May 2010 Regional Inspector granted the applicant’s appeal and set a time-limit of thirty days for the District Inspector to issue a decision in the case.

On 31 May 2010 the District Inspector once again discontinued the administrative proceedings. He first of all noted that the proceedings had been conducted since 1994. He then essentially restated the reasons of his previous decision of 25 May 2009.

On 14 June 2010 the applicant appealed.

On 20 July 2010 the Regional Inspector quashed the District Inspector’s decision. He first noted that the proceedings had been instituted on 7 January 2000. He further observed that the problem of the flooding of the applicant’s land persisted and that the cause had not been sufficiently clarified. He further observed that, on 27 February 2008, the District Inspector had discontinued the administrative proceedings in so far as they related to the quality of the road works in the applicant’s street, and that he had never served his decision on the applicant, in breach of the applicable procedural requirements. The Regional Inspector considered that the District Inspector had failed to adequately assess the causal link between the road works, the construction activities on the neighbouring plots and the flooding of the applicant’s property. Consequently, he ordered the District Inspector to verify whether the current shape of the terrain in the concerned area sufficiently protected the applicant’s land from being flooded.

On 14 January 2011 the District Inspector again discontinued the administrative proceedings. He restated the reasoning invoked in his previous discontinuation decisions and considered that the case, in so far as it concerned the flow of the underground water between land properties, belonged to the competence of the Mayor and not of the construction supervision authority. In this respect, he invoked the relevant provision of the 2001 Water Act. Lastly, he observed that the discontinuation decision of 27 February 2008 had not been served on the applicant as she had not enjoyed the status of a party to that specific part of the proceedings.

On 31 January 2011 the applicant filed an appeal.

On 10 March 2011 the Regional Inspector quashed the District Inspector’s decision. He reiterated that the flow of the underground water between the applicant’s property and those of her neighbours had been caused by the road works and the neighbours’ construction activities and considered that, therefore, the applicant’s case lay within the competence of the construction supervision authority. Specifically, the Regional Inspector expressed doubt as to the compliance of the construction works complained of by the applicant with the technical requirements for buildings, specified by the applicable construction laws. The Regional Inspector further explained at length the steps to be taken by the District Inspector in order to sufficiently elucidate the factual circumstances of the case.

The proceedings are currently pending before the District Inspector.

3.  Civil proceedings before the Warszawa Regional Court (case nos. III C 759/01, VI ACa 732/06 and I CZ 98/07)

On 2 April 2001 the applicant sued jointly the city of Warsaw and two of her direct neighbours for damages resulting from the flooding of her property.

On 7 March 2006 the Warsaw Regional Court dismissed the applicant’s claim and ordered her to pay the costs of the proceedings. The court confirmed that the applicant’s land had been flooded, but considered that the last serious flooding had taken place in 1992. It further observed that, following the 1992 flooding, the applicant had built her own drainage system and, in 1995, raised the level of her land by 10cm. The court moreover observed that the applicant’s land had been flooded already in the 1980s, i.e. before the defendants moved in to the neighbouring properties and began any construction activities. It also considered that the construction of houses on the applicant’s neighbours’ properties had not changed the groundwater conditions. The court concluded that the reasons for the flooding of the applicant’s land had been manifold. For the court, the main reasons were, on the one hand, the natural topographical and geological characteristics of the area, and, on the other hand, the fact that the applicant’s house, built in the 1950s with a 1-metre-deep cellar, had constituted a natural receptacle for the excess water amassing in the entire neighbourhood and percolating through the subsoil. The court did not find any reasons to hold the defendants liable for the flooding of the applicant’s property. It also concluded that the applicant’s claims had in any event been time-barred, as she had brought her action in 2001 but based it on the 1992 flooding and the costs of constructing her own drainage well system in 1993-1996. Lastly, the court considered that, in any event, the applicant had not sufficiently substantiated the extent of the damage which she claimed she had suffered or the reasons why, in her view, the defendants could be held liable for it.

On 9 January 2007 the Warsaw Court of Appeal (Sad Apelacyjny) dismissed the applicant’s appeal. It shared the Warsaw Regional Court’s findings and confirmed that the applicant’s claims had become time-barred.

On 1 June 2007 the Court of Appeal rejected the applicant’s cassation appeal for failure to pay the applicable fee. The applicant’s appeal against this decision was dismissed by the Supreme Court (Sad Najwyzszy) on 24 August 2007.

4.  Other steps taken by the applicant with regard to the flooding of her property

On 29 November 2006 the Warsaw Municipality Office (Urzad Miasta Stolecznego Warszawy), in reply to a query from the applicant, informed the applicant that the preferred solution to the applicant’s problem would be the urgent construction of a drainage well system in her street and in other streets in the neighbourhood. It further informed the applicant that, on 19 October 2006, it had requested the Mayor of Warszawa-Ursynów to urgently implement the aforementioned project and to earmark the necessary funds.

On 18 March 2009, in reply to another query from the applicant, the Director of the Infrastructure Department of the Municipal Office (Naczelnik Wydzialu Infrastuktury) warned the applicant that it was not possible for her to release excess rainwater from her plot of land onto the public road. He advised her to consider building her own drainage well to collect the rainwater accumulating on her property.

On 22 May 2009, in reply to a letter from the applicant, the Mayor informed her that, according to the expert technical reports drawn up in the course of the administrative proceedings there had been no causal link between the construction activities on the adjacent plots of land and the flooding of her house. He moreover informed her that building her own drainage well would help her prevent the recurring floods. The Mayor further assured the applicant that the Municipal Office would carry out an on-site visit of her neighbourhood in the period of rainstorms and attempt to come up with other possible solutions. Lastly, he informed her that the construction of a sanitary sewage system in the applicant’s street was planned for the following years.

On 15 July 2009, in reply to another letter from the applicant, the Mayor considered that the rainwater overflow on her property was due to the fact that the property in question was the lowest point in the entire neighbourhood. He further explained that building a public rainwater drainage well system, which could remedy the situation, was not possible as the local area was not equipped with a rainwater container (kolektor). He expressed the conviction that the sanitary sewage system, the construction of which was scheduled for the last quarter of 2009, would certainly improve the applicant’s situation.

In his subsequent replies to the applicant, dated 9 October 2009 and 29 October 2009, the Director of the Infrastructure Department confirmed that the municipality would not build a rainwater drainage well system but that the construction of a sanitary sewage system was being prepared.

On 3 March 2010 the applicant and her 11 neighbours petitioned the Mayor to build a public drainage well system.

In a reply on behalf of the Mayor, dated 24 March 2010, the Director of the Infrastructure Department of the Municipal Office informed the petitioners that no funds had been earmarked in the 2010-2014 budget for the construction of the requested rainwater drainage system. He assured them that the sanitary sewage system would be constructed in the first half of 2010.

According to the applicant’s submissions, the sanitary sewage system was built in her neighbourhood in the second half of 2010 but it did not remedy the problem of recurring rainwater overflows.

5.  Technical opinions, minutes of official on-site visits and other documentary evidence

In a report concerning the road works to be carried out in the applicant’s street, prepared on 8 November 1993, the Director of the Technical Department of the Warszawa-Mokotów District Office (Naczelnik Wydzialu Technicznego Urzedu Dzielnicy) found the subsoil water conditions in the applicant’s neighbourhood to be inconvenient and observed that the planned road works should comprise the construction of a drainage well system. He noted that the budget had not foreseen the costs of constructing such a drainage system. He concluded that refraining from its construction would constitute an “engineering error” and would have a negative impact on the foundations of the local houses, in particular on account of the possible flooding of garages and basements.

According to a report from an on-site visit, prepared on 27 November 1999 by the District Inspector, the level of the ground in the applicant’s neighbourhood had been raised above the base level as a result of the road works carried out in the applicant’s street and the construction works on the neighbouring properties. The report further stated that the land had been raised on average by 50 to 150 centimetres above the base level. This, in turn, redirected the flow of the excess rainwater onto the applicant’s property, which has been suffering from recurring floods already for the period of several years.

Another report, prepared by the District Inspector on 3 October 2000 as a result of an on-site visit on the applicant’s neighbour’s property, found that its two private rainwater drain wells had been built without a proper authorisation.

A technical report commissioned by the applicant, drafted on 22 May 2002 by an expert geologist, confirmed that the raising of the street level had channelled the flow of the rainwater onto her land.

A geological opinion prepared in October 2003 by a court expert in connection with the civil proceedings instituted by the applicant before the Warsaw Regional Court concluded on the existence of a causal link between the road works carried out in the applicant’s street, the raising of the ground level on the neighbouring plots and the flooding of the applicant’s property. The court expert considered that the changes to the ground level in the area had resulted in the increased flow of rainwater onto the applicant’s land and that the construction permits, issued by the relevant administrative authorities for construction projects in the neighbourhood, had not sufficiently taken into account their possible consequences for the subsoil water conditions. He concluded that the high level of underground water constituted a serious threat to the foundations of the applicant’s house.

In a supplementary court opinion of 9 February 2004 the court expert stated that the rainwater drainage wells located on the applicant’s neighbours’ plots of land were feeding the excess rainwater onto the applicant’s property.

According to a certificate issued on 29 January 2008 by the Municipal Commander of the Fire Brigade (Komendant Miejski Panstwowej Strazy Pozarnej), an intervention took place on 22 January 2008 at the applicant’s house in order to pump water out of the applicant’s basement.

Several dozen photographs of the applicant’s property show a flooded basement, garage and a partly flooded garden.

B.  Relevant domestic law and practice

1.  Administrative inactivity

Article 35 of the Code of Administrative Procedure of 1960 (Kodeks Postepowania Administracyjnego) lays down time-limits ranging from one to two months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit.

Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority sets a new time-limit for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future.

Following an amendment to Article 37 § 1, which entered into force on 11 April 2011, a party to administrative proceedings may currently file a complaint not only about an authority’s failure to handle the case within the time-limits referred to in Articles 35 and 36, but it may also complain about undue delay in the conduct of the proceedings (przewlekle prowadzenie postepowania).

On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force.

According to the provisions of section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.

Section 26 of the 1995 Act provided:

“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”

Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and could itself give a ruling on the right or obligation in question.

The 1995 Act was repealed and replaced by the Law of 30 August 2002 on proceedings before administrative courts (Prawo o postepowaniu przed sadami administracyjnymi, “the 2002 Act”) which entered into force on 1 January 2004.

Section 3 § 2 of the 2002 Act, as amended on 11 April 2011, contains provisions analogous to section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint with an administrative court, alleging inactivity of the authority obliged to issue an administrative decision or undue delay in the conduct of the proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.

2.  Rainwater flooding

(a)  Civil law remedy

Article 222 § 2 of the Civil Code of 1964 (Kodeks cywilny) provides that an owner whose use of his or her property has been interfered with by another person in a manner other than physical deprivation may demand that that person restore the original condition and refrain from any further interference.

(b)  Construction supervision

The Construction Act of 7 July 1994 (Prawo budowlane) (“the Construction Act”) lays down, in its section 5 (1), the technical requirements for the construction of buildings (obiekty budowlane). In particular, it specifies in its subsection 9 that a building must be designed and constructed in a manner ensuring respect for the legitimate interests of third parties whose property is located within its area of influence.

Section 29 of the Ordinance of the Minister of Infrastructure (Minister Infrastruktury) of 12 April 2002 on technical requirements and localisation of buildings (w sprawie warunków technicznych, jakim powinny odpowiadac budynki i ich usytuowanie), which substituted an almost identical provision of a previous ordinance of 14 December 1994, prohibits redirecting the natural flow of rainwater onto the neighbouring properties.

According to section 84 (1) of the Construction Act, the supervision of compliance with construction laws falls to the construction supervision authorities.

(c)  The 2001 Water Law Act

According to section 29 (1) of the Water Law Act of 18 July 2001 (Prawo wodne), a landowner, unless otherwise provided for by the law, cannot alter the water conditions on his land and, in particular, the direction of the flow of rainwater or spring water in a manner causing damage to the neighbouring properties. It is also prohibited to release water or waste on the neighbouring properties.

Subsection 3 of the above provision specifies that, if alterations to the water conditions damage the neighbouring properties, the mayor may issue a decision ordering the owner of the land to restore the original condition or to carry out works aiming at preventing the damage.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention that the length of the administrative proceedings before the construction supervision authority was excessive.

2.  Moreover, invoking Article 1 of Protocol No. 1, she complains that for many years the authorities failed to prevent the recurrent flooding of her house by excess rainwater flowing from the adjacent properties and street.

The Court considers that this complaint should be examined from the standpoint of Article 8 of the Convention.

QUESTIONS TO THE PARTIES

I.  As regards Article 6 § 1 of the Convention

1.  Having regard to the circumstances of the case, such as:

-  the fact that the applicant filed three complaints under section 37 of the Code of Administrative Procedure, asking the authorities to accelerate the examination of her case

- the fact that all the above-mentioned complaints were successful in that they resulted in new-time limits being fixed for the lower-level authority to deal with the case,

- the fact that the lower-level authority each time issued a new decision within the newly fixed time-limit or shortly after its expiry,

- the fact that the overall length of the proceedings appears to have been caused by the sheer number of decisions given in the case and repeated renvoi between building inspectors, and not by any particular delays before a specific authority,

-  the fact that, although the applicant was most of the time kept informed by the authorities about the course of the proceedings, there seems to have been no real progress on the case for a period of eleven years,

has the applicant exhausted all domestic remedies, within the meaning of Article 35 § 1 of the Convention?

In this context, the parties are also invited to make their observations in the light of the Court’s judgment given on 1 June 2010 in the case Derda v. Poland (no. 58154/08, §§ 40-49).

2.  Has the length of the administrative proceedings in the present case been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

II.  As regards Article 8 of the Convention

3.  Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of her complaint under Article 8 of the Convention?

In particular, was

- a civil action under Article 222 § 2 of the Civil Code of 1964 (Kodeks cywilny), or

- a request for a decision ordering a landowner who altered the direction of the flow of rainwater in a manner causing damage to the neighbouring properties to restore the original condition or to carry out works aiming at preventing the damage, under section 29 (1) of the Water Law Act of 18 July 2001 (Prawo wodne)

an effective remedy within the meaning of this provision in respect of the applicant’s complaint under Article 8 of the Convention?

4.  Is the level of detriment suffered by the applicant as a result of the recurrent flooding of her house and property such as to raise an issue of a positive obligation on the part of the State under Article 8 of the Convention as regards the applicant’s right to respect for her home?

If so, can it be said that the State has complied with its positive obligation under Article 8 of the Convention to secure the applicant’s right to respect for her home, by taking adequate steps to protect her house and property from the recurrent flooding?