The doctoral thesis of Advocate Dr Joanna Kazmierczak on liability for planning damage is cited in the case law. It has recently been cited to support arguments in the reasoning of the Regional Court in Lodz in the case ref. no.: II C 825/23 in the context of the interpretation of Articles 36 and 37 of the Act of 27 March 2003 on planning and spatial development.
The reasoning of the Regional Court in Lodz reads:
“It is also emphasised in the doctrine of civil law that the principles of liability for damages referred to in Article 36(1) of the Act may not be modified by Article 37(11) as amended by the Water Law Act 2018. In particular, as a result of the introduction of the indicated provision, there was no narrowing of the application of Article 36(1)

A few months earlier, a request was received from the Regional Court in Lodz for the doctoral thesis of Dr Joanna Kazmierczak, advocate, in order to use the hearing in the performance of her duties as a judge of a general court.The loss of potential use of the land can theoretically be considered as a change in the previous designation or use of the land. Assuming that land use, as a concept of legal language and not only legal language, can only result from the applicable local law – the local plan, it should be noted that in the case of a property covered by a local plan after a planning gap, and certainly for the first time (when the land had never been covered by a plan before), one cannot speak of a change in the existing use. The adverse change introduced by the plan in such situations can only refer to a change in the existing use. If it were to be understood only as the loss or substantial limitation of the possibility of actual use in the manner in which it was used before, liability for planning damage would be negligible and cases of loss of potential use that was previously within the bundle of ownership rights would be completely ignored.”
to infringements only in the actual use of the land (without taking into account the loss of potential use). The court shares this view. In particular, it also shares the argument that the extent of the damage, as established pursuant to Article 36(1) of the PPA, cannot be narrowed down on the basis of the provision of Article 37(11)In the absence of any intention on the part of the legislator to amend Article 36(1), Article 37(11) is only intended to set out the rules for calculating the value of one of the depleted assets as at the date preceding the entry into force of the local plan – so Dr J.Kaźmierczak “Odpowiedzialność za szkodę planistyczną”, Łódź 2023. The Court also fully agrees with the plaintiff’s argument, cited after the above-mentioned author, that a restrictive interpretation of Article 36(1) and (3) of the Act would be contrary to the constitutional standard of property protection, because it would lead to depriving the owner of the right to redress the damage if he did not manage to realise the potential use of his property before the entry into force of the local master plan. Adoption of the thesis advanced by the defendant municipality would lead to a randomness of consequences in terms of the emergence of claims for damages by landowners depending on whether they had taken actual implementation measures prior to the entry into force of the plan or (for various reasons) had not taken such measures. Reaching for an absurd but illustrative argument, one could say that the proverbial shovel driven into the ground and starting to prepare the foundations or just hauling one wheelbarrow of humus to level the ground could be decisive. It is irrelevant in this regard, in the Court’s view, whether the owner, in addition to the planning conditions, had obtained planning permission for a specific construction during the planning gap period. A planning permission decision makes it possible to commence construction, but does not oblige one to do so. It is therefore possible, having obtained permission for a number of reasons, not to physically commence construction until the date of entry into force of the plan.
The author of the aforementioned publication is also right that, according to the literal wording of Article 37 (1) of the Act on Public Right of Way, it is applicable only when the actual use of the real property in a manner consistent with the one existing on the date of enactment of the local plan is impossible or significantly restricted – a contrario, it is not applicable when a potential, but unrealized manner of use is restricted or prevented. In the present case, there is no doubt that the owner can continue to use the land as an undeveloped green area and, as such, the application of Article 37(11) is out of the question, while the prerequisites of Article 36(1) of the Act have been actualised. As a result of the introduction of the plan, the plaintiff suffered a restriction in the sphere of use, understood not as an element of the actual state of affairs perceptible to the senses at a given moment, but as the possibility of taking certain actions with respect to his property, which forms part of the content of the broadest substantive right in civil law, which is the right to property.