Ambrose -v- Shelvin
High Court
Judgment was given by Ms Justice Dunne on December 11th, 2009
Judgment
A farmer who had constructed a farm pass on his land was liable for blocking the flow of water when there was heavy rain, thereby causing a nearby house to flood.
Background
The case arose from events over the weekend of February 25th, 26th and 27th, 1994.
The plaintiff, Michael Ambrose, owned a bungalow built on a site near Carrickmacross, Co Monaghan. The defendant, Patrick Shevlin, owned a field to the left of this site, as seen from the public road. A stream, situated 300-400 metres from the house, crossed the road by means of a culvert.
Mr Ambrose’s house was at a lower level than neighbouring houses, and the natural flow of water from the stream, should it overflow, would be downhill and past his house.
There was a farm track or roadway, described as a “farm pass” running alongside Mr Ambrose’s boundary. On the evening of February 25th, 1994, it was raining heavily. By about 7.30pm Mr Ambrose noticed the water level rising around his home.
He noticed that at a point adjacent to the gable end of his house a three-inch pipe under the farm pass was obstructed by a stone, which he removed.
It was a key part of his case that the farm pass had been constructed in 1993, at a level above the surrounding land, and that it was at a higher level than Mr Ambrose’s house, so that it acted as a dam when water levels in the area rose. He also claimed that the pipes under it were inadequate to drain away the water that accumulated.
By 9.20pm on the Friday evening the plaintiff noticed water was coming through the back door of his house. He called for assistance from a local county council engineer and a neighbour with a JCB. The farm pass was breached by the JCB on the instructions of the engineer, and the water subsided. Mr Ambrose had to stay away from his home that night due to the damage, as the water had risen to a level inside the house of over eight inches.
The next day he noticed the trench that had been opened had been filled in. That night it rained again, and again his house was flooded. On Sunday he again sought the help of the neighbour with the JCB, who was reluctant to take sides.
Eventually, on the instructions of the engineer, the neighbour reopened the trench in the farm pass. He was also asked by the engineer to open a number of cuttings on both sides of the road where the stream is located, which had the effect of diverting water back into the stream.
Ms Justice Dunne said that the central issue in the case was whether the flooding to the Ambrose home was attributable to the farm pass on the Shevlin land.
The first question was regarding when the farm pass had been constructed. Mr Ambrose had stated that in 1993 a large amount of quarry stone had been brought to the site. Mr Shevlin had put in an application for planning permission around that time for cattle sheds, a slurry pit and a service road, to which Mr Ambrose had objected. Planning permission was refused.
Mr Shevlin said he had never constructed a road, but had merely repaired or maintained an existing path. He accepted that he had received a warning notice from Monaghan County Council in August 1993, and that the schedule to the warning notice included the words “construction of farm roadway and filling of land at Aghalile”.
It was also confirmed that in an application for a farm improvement grant he had described the work as “construct farm roadway 215m x 3.0m”, but he stated that there was an error in this form, and the application was to maintain, not construct, the road.
The next issue to consider was whether the works done raised the level of the farm pass to a higher level than the floor level of Mr Ambrose’s house. If it did not, it was difficult to see how the construction of the farm pass could have led or contributed to the flooding of Mr Ambrose’s house.
A consultant engineer gave evidence on behalf of Mr Shevlin that the pass was not higher than the floor of the house.
Decision
Ms Justice Dunne said that she was satisfied that the road was constructed of hardcore materials brought onto the land by Mr Shevlin. While there had been an existing track there, she had little doubt that in 1993 Mr Shevlin engaged in “significant works” to improve it.
She said she had difficulty with the engineer’s evidence. A number of witnesses all confirmed that when a breach was made in the farm pass on the Friday night, the water on the Ambrose side subsided.
“I am satisfied that construction work took place on the farm pass in 1993. I am also satisfied that the result of that work was to raise the level of the farm pass with the result that on that weekend it acted like a dam, impeding the natural flow of the overflow from the stream and causing the flooding of the house,” she said.
The only remaining matter was whether the issue of nuisance and negligence arose, and the question of reasonable foreseeability.
“I do not think that the events of that Friday night were or could have been reasonably foreseeable by Mr Shevlin. The combination of events was exceptional,” she said.
However, by Saturday night the breach in the farm pass had been filled in, without any reasonable steps being taken to put in any suitable drain pipes to allow water to escape. Further flooding took place. That was entirely foreseeable.
In the circumstances, she said she was entirely satisfied that Mr Shevlin was entirely liable to Mr Ambrose for the damage done to his property, and she noted that a figure had been agreed in respect of damages.
The full judgment is on www.courts.ie.
Richard Lyons SC and Noel Cosgrove BL, instructed by O’Sullivan Barnicle, Dublin, for the plaintiff; Eamonn Coffey BL, instructed by M P Crilly, Co Monaghan, for the defendant