Defendant liable for nuisance and trespass due to foreseeable flooding from filling breach without drainage.

Neutral Citation Number: [2009] IEHC 548

THE HIGH COURT

1996 922 P

BETWEEN

MICHAEL AMBROSE

PLAINTIFF

AND

PATRICK SHEVLIN

DEFENDANT

JUDGMENT delivered by Ms. Justice Dunne on the 11th day of December, 2009.

Michael Ambrose lives in a bungalow which is located on the Aghalile Road, Carrickmacross, Co Monaghan. The house is

located some distance back from the public road. To the left of the house, as one looks at it from the public road, is

McNally's field. To the right, is a field belonging to the defendant, Patrick Shevlin. The site on which the bungalow is built

is rectangular in shape, with the short side fronting onto the public road and the long side going to the back of the site.

The long side of the site is approximately 100m long rising quite steeply towards the back and also rising more gradually

towards the road.

Some 300 to 400m away from the house going away from the direction of Carrickmacross, is a stream which crosses the

road adjacent to a Mr. Lennon's house by means of a culvert under the road. Between the place where the stream meets

the road and Mr. Ambrose's house are a number of fields. This area has been described as “saucer shaped”. I would

describe the area as one where the land adjoining the road is lower than the road itself and rises more steeply to a hill

further away from the road.

On the field belonging to Mr. Shevlin is a farm track or roadway described in the course of the evidence as a farm “pass”.

This runs all the way up the field along the boundary with Mr. Ambrose’s property and beyond. This pass is at the heart of

these proceedings.

It is also relevant to note that the land falls gradually from left to right as depicted on a map produced in the course of

the proceedings by Mr. Osborne, an engineer, so that the land adjacent to the Lennon's house beside the stream is higher

than the land situated further along the road going towards Carrickmacross. Thus, the site on which Mr. Ambrose's house

is located is at a lower level than the houses of Mr. Matthews, Mr. Lennon and Mr. Smith shown on the map prepared by

Mr. Osborne on behalf of Mr. Shevlin. Therefore, the natural flow of water from the stream, should it overflow, would be

downhill towards and indeed, past Mr. Ambrose's house.

Having set the scene, it is now necessary to look at what occurred over the weekend of the 25th, 26th and 27th

February, 1994. Mr. Ambrose arrived home from work on Friday the 25th. There was heavy rain falling but there was no

problem at that stage. By seven o'clock in the evening, Mr. Ambrose noted that the water levels around his home were

rising. He accessed the Shevlin property via the public road and noted that at a point adjacent to the gable end of his

house, a 3 inch pipe under the farm pass was obstructed by a stone and he removed the stone from the mouth of the

pipe.

A key area of dispute in this case concerns the farm pass. The case made by Mr. Ambrose is that the farm pass had been

constructed in 1993 approximately, that it was constructed above the ground level of the field in which it was located

and that it was at a higher level than Mr. Ambrose's house with the result that it acted as a dam when water levels in the

area rose. It was also a part of his case that the pipes under the farm pass were inadequate to drain away the water

that accumulated in that area.

In the course of the evidence, Mr. Ambrose stated that he met Mr. Shevlin and his daughter at around 7pm and he

expressed his concerns about the situation in relation to the rising water levels around his house and his concerns as to

the farm pass to them but he stated that Mr. Shevlin did not respond, he simply walked off. Mr. Shevlin disputed this

account in the course of his evidence. Later that evening, around nine o'clock, Mr. Ambrose called to the Shevlin's home

and spoke to Mrs. Shevlin but again he got no satisfaction. According to him, Mrs. Shevlin told him that the river was

flooded and that was her only response to the situation. In the course of her evidence, Mrs. Shevlin stated that she had

no recollection of Mr. Ambrose calling to the home on Friday evening.

By 9:20 pm, Mr. Ambrose noted that water was coming through the back door of his house. At that stage, he went up to

a neighbour's house for assistance and finally he called in to the home of Mr. Mark O’Callaghan, a local county council

engineer. He took Mr. O’Callaghan into his office and shortly before midnight, Mr. O’Callaghan, together with a JCB driver,

Mr. Lennon, and gardaí came to the scene. The water was at that stage being dammed by the farm pass. The farm pass

was breached by the JCB on the instructions of Mr. O'Callaghan. It took a short time to do this and when this was done

the water levels subsided. Mr. Ambrose stayed elsewhere that night due to the damage done to his home by the flood. He

was clear in giving evidence that once the farm pass had been breached the water flowed away.

The following day he returned to clean up the house. He noted that the water level in the house had reached up to 8½

inches above the floor level. This figure was based on the “tide mark” visible on pieces of furniture in the house. The

following day was relatively dry but during the night it rained again. The trench which had been opened in the farm pass

had been filled in and consequently, when the water levels rose again his home was flooded again. He arrived at his home

on Sunday morning to find it flooded.

There is some dispute between the parties as to the timing of various events that occurred on Sunday, 27th February.

There is no doubt about one aspect of the matter. On Sunday, the breach that had been made in the farm pass on Friday

was no longer open. It was necessary on Sunday to reopen the breach. Mr. Lennon, the JCB driver and who is the same

Mr. Lennon who lives adjacent to the stream was called to reopen the breach. Mr. Lennon says that he was called around

10.30 on Sunday morning by Mrs. Shevlin. He went up to the farm house with his JCB and arrived around 10.30. He noted

that there was water around Mr. Ambrose's house. He said that Mr. Ambrose asked him not to do anything at that stage

as he had contacted the authorities and a photographer. Mr. Lennon said that at this stage he stepped back as he did

not wish to appear to take sides. The Shevlin's were distressed. He waited for Mr. O’Callaghan to arrive and when Mr.

O'Callaghan arrived, he was directed by him to open the farm pass again. When the trench in the farm pass was reopened

he was aware that new pipes were to be placed in the trench. According to Mr. Lennon the trench was dug by lunchtime.

Subsequently, on the directions of Mr. O'Callaghan, he went up to the area where the stream was located and he opened

a number of cuttings on both sides of the road adjacent to where the Smith house is now located. This had the effect of

diverting the flow of water from the stream, which had been flowing down the fields towards Mr. Ambrose's house, back

into the river. The problem caused by the overflowing stream and the excessive rain was alleviated straight away once

that was done. He accepted that the flood at Mr. Ambrose's house had been alleviated by breaching the farm pass. He

also agreed that on the Friday evening, the effect of breaching the farm pass on the flooding was immediate. He agreed

with Mr. O'Callaghan in that regard.

The area of dispute between Mr. Lennon and Mr. Ambrose relates to the timing of events on the Sunday as I have already

mentioned. Part of the difficulty in that regard is that a photographer was indeed called to his home by Mr. Ambrose with

a view to recording the scene. On the back of a number of photographs taken by that photographer depicting the scene

on Sunday the legend indicates that the photographs were taken around 3:30 pm. Some of the photographs show Mr.

Lennon at work in the JCB. As already mentioned, his evidence was that he had finished work at the farm pass by

lunchtime. Mr. Ambrose's evidence was to the effect that the photographs were taken around 3:30 pm.

In the course of his evidence, Mr. Ambrose referred to a contemporaneous record that he made in relation to the events

that occurred. In the course of those notes, he described the various events and the times at which certain incidents

occurred. It was not disputed that those notes were indeed a contemporaneous record of the events. It is clearly the

case that Mr. Ambrose was at the time sufficiently concerned about the events that had occurred to record details of

those events in a contemporaneous record. No doubt, Mr. Ambrose used those notes to refresh his memory in relation to

the evidence given before me. In respect of the evidence given by Mr. Ambrose as to a number of issues, namely the

meeting between Mr. Ambrose and Mr. Shevlin and his daughter on Friday evening, his visit to the Shevlin home at

approximately 9.00 pm on Friday evening and his evidence as to the timing of events on Sunday I prefer the evidence of

Mr. Ambrose to that of other witnesses. I do not think much turns on the issue of the timing of the events on Sunday and

the evidential dispute between Mr. Lennon and Mr. Ambrose on this point. There is no dispute between them as to the

fact that the photographer, when he came, was in a position to photograph Mr. Lennon at work in the JCB.

There is no dispute between the parties as to the events that gave rise to the flooding. A combination of excessively

heavy rain and the failure of the culvert to take the excessive rainfall going into the stream led to a situation where the

stream overflowed at the point of the culvert resulting in a flood or overflow flowing down the fields towards the Ambrose

house. It seems that the problem at the culvert was that the pipes at the entrance to the culvert were obstructed by

stones and silt. Consequently, the stream which was swollen by the extremely heavy rainfall then overflowed.

The central issue in this case is whether the flooding to the Ambrose home is attributable to the farm pass on the Shevlin

land. In looking at that issue, it is necessary to consider a number of matters raised in the course of the evidence. The

first question that arises relates to when the farm pass was constructed. In the course of his evidence, Mr. Ambrose

stated that the farm pass had been constructed around 1993. He did not dispute the fact that there had been a path in

use along the boundary with his house but he said that around 1993 a large amount of quarry stone had been brought on

to the site and works were carried on resulting in a substantial road being put in. According to his recollection, lorries

brought hard-core or quarry stone to the site and a mechanical digger was used.. He wasn't entirely clear as to the

precise time when that work was done. He was aware that Mr. Shevlin had put in an application for planning permission

around that time relating to the construction of cattle sheds, a slurry pit and a service road in that field. It was put to

him that in anticipation of planning permission being granted Mr. Shevlin had brought materials on to the site with a view

to the work he intended to carry out. These were mounds of hard-core material. It was also put to Mr. Ambrose that the

work done by Mr. Shevlin to the farm pass was confined to doing minor repairs from time to time. He disagreed. It

transpired that Mr. Ambrose had objected to the application for planning permission and planning permission was refused.

Mr. Shevlin in his evidence indicated that he never constructed a road at the site of the farm pass and that all he had

done was to repair or maintain the existing farm pass. He said that he had brought in hard-core materials in preparation

for the building work he hoped to do and for which he had applied for planning permission. He stated that the material

accounted for the mounds apparent on the field. He disputed that lorry loads of stone or gravel had been brought in to

create the pass. Mr. Shevlin accepted that he had received a warning notice from the County Council in relation to the

work being carried out at the field. The warning notice was dated 13th August, 1993 and it stated that:

“It appears to the Monaghan County Council that the land referred to in the schedule to this notice is being or is

likely to be developed in contravention of s. 24 of the Local Government (Planning and Development) Act 1963 (i.e.,

otherwise than under and in accordance with the permission required under that Act). The Monaghan County

Council by this notice require that development of the said land shall not be commenced, or if such development

has commenced, that it shall be discontinued forthwith and the land restored to its original condition.”

In the schedule to the warning notice, the following appeared:

“Description of land to which this notice refers

Construction of farm roadway and filling of land at Aghalile.”

By way of response Mr. Shevlin wrote to the County Council stating:

“Received your letter of today 13- 8- 93. I would like to inform the Council that I am not developing land. I am

reclaiming land and gravelling an existing pass.

Enclosed is map with pass marked from A to B.”

There was some notation on the letter which it is accepted was placed there by County Council officials. These stated:

“Please refer to Mr. M. O’Callaghan

re (1) Changes in ground level

(2) Confirmation that this is a farm road.”

One further document was put to Mr. Shevlin and that was a document relating to an application for a grant in respect of

farm improvement programmes. The description of the work referred to was as follows:

“Construct farm roadway 215m x 3.0m in accordance with the specification S.127….”

Mr. Shevlin stated that there was an error in the form in respect of the application for the farm grant. The application

was for a grant to maintain the road not to construct the road. He went on to explain that the planning permission for the

construction of the slurry tank and other works he had contemplated in 1993 was refused because of flooding and the

impact on the visual amenity of the area and the proximity to Mr. Ambrose's house. He denied having any antipathy

towards Mr. Ambrose because he had objected to the planning permission for this work.

In the course of the evidence and bearing in mind the photographs produced in court, I am satisfied that the farm pass

was constructed of hard-core material. I am satisfied that that material was brought onto the land by Mr. Shevlin. I do

accept his evidence and that of Mr. McNally that there was an existing track alongside the boundary with Mr. Ambrose’s

property but I have little doubt that in 1993 Mr. Shevlin engaged in significant works to improve the farm pass. The

evidence of Mr. Ambrose in this regard is borne out by the warning notice served by the County Council and the

application for a farm grant submitted by Mr. Shevlin himself.

The next question to consider is whether the works done by Mr. Shevlin in 1993 raised the level of the farm pass such

that it was at a higher level than the floor level of Mr. Ambrose's house. If not, then it is difficult to see how the

construction of the farm pass could have led to or contributed to the flooding of Mr. Ambrose's house.

There is no doubt that the area in which Mr. Ambrose's house is located is part of the floodplain leading down from the

stream towards Carrickmacross. The house built by Mr. Ambrose was constructed on a site, the level of which was raised

some 2 to 2.5 feet above ground level. The floor level of the house itself would have been somewhat higher again. It

seems to be clear that the construction of the house has created an obstruction in the natural flow of water through the

fields. Nonetheless, the evidence was that although the house is constructed in a floodplain, from the time it was built

and until 1994 the house has never flooded.

Mr. Osborne, an experienced consulting engineer, gave evidence on behalf of the defendant. He prepared a number of

drawings and a helpful map of the area. He carried out an examination of the levels that are relevant to these

proceedings. Mr. Osborne made a number of visits to the land in October of this year. That is obviously more than 15

years since the events giving rise to these proceedings. The net effect of his evidence was that the level of the farm

pass adjacent to the gable end of Mr. Ambrose's house coincides with the floor level inside the house. That being so, he

concluded that the farm pass could not have had a damming effect such that it caused the water levels to build up

behind it leading to the flooding of the house. Mr. Osborne had clearly done considerable work in relation to the various

levels relevant to this case. Mr. Fahy, the engineer on behalf of the plaintiff had not carried out a similar exercise. Mr.

Osborne in the course of his evidence was also of the view that the farm pass was not constructed above the ground

level of the surrounding field. He did concede that parts of the farm pass might be higher than the surrounding ground

level at certain points.

I have a difficulty with the evidence of Mr. Osborne. First of all, the evidence of a number of witnesses, namely, Mr.

Shevlin, Mr. O'Callaghan and Mr. Lennon, not to mention Mr. Ambrose, all confirmed that when the breach was made in

the farm pass on the Friday evening the water levels subsided. Mr. O'Callaghan had described in his evidence how deep

the water was on the Ambrose side of the farm pass. If Mr. Osborne's evidence was correct as to the levels at different

points, it is difficult to see how the various witnesses who were present on the night of the flooding could have observed

the water levels subside in the way described following the breach of the farm pass. Secondly, in the course of his

evidence, I asked Mr. Osborne about one of the photographs in which a number of shovels can be seen just beyond the

trench made in the farm pass which are leaning up against the farm pass. It is clear from that photograph that at that

point the farm pass is raised higher than the adjoining land on the Ambrose side. Indeed I think it is clear that the ground

on the other side of the farm pass also slopes down from the pass. In those circumstances, I am reluctant to rely on the

evidence as to levels supplied by Mr. Osborne notwithstanding the care taken by him in preparing the information, given

the passage of time which has elapsed since the flooding. I do not know what changes may have occurred to the farm

pass in the intervening years since the flood occurred apart from the regular use to which it has been put. However, as I

have mentioned above, the key factor, it seems to me, is that when the breach was made in the farm pass, the water

level subsided. That evidence has not been contradicted by any witness who was present on the night of the 25th

February, 1994.

I am satisfied that construction works 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 in February 1994, it acted like a dam,

impeding the natural flow of the overflow from the stream and causing the flooding of the house.

The claim against Mr. Shevlin has been brought in nuisance and negligence. I was referred to the case of Fitzpatrick v.

O’Connor (Unreported, High Court, Costello J., 11th March, 1988) in which Costello J. stated at p. 7 of the judgment:

“I now turn to the claim for damages from nuisance. The proper legal principles which I should apply are set out in

Home Brewery v. Davis and Company [1987] 1 All E.R. 638. The legal position is as follows: the defendant was

under no obligation to receive water from the plaintiff's land but if the use of his land by him is unreasonable and is

resulting in damage to a higher occupier, which the plaintiff is, then a nuisance is created.”

It is useful to look at the decision in the Home Brewery case referred to above more closely. The head note states:

“Held, (1) that an occupier of land had no cause of action against the occupier of higher adjacent land for

permitting the passage of natural, unchannelled water over or through the higher to the lower land, but neither was

he under any obligation to receive such water and was entitled to take steps consistent with his reasonable use of

the land to prevent it from entering thereon, albeit that damage was thereby occasioned to the occupier of the

higher land; that where the occupier of the higher land established that the lower occupier's use of his land in

taking such preventative steps was unreasonable, and that the resultant damage to the higher land was reasonably

foreseeable, an action in nuisance would lie but that since the filling of the clay pit in the land generally with a view

to its development was a reasonable use by the defendants, the plaintiffs had no cause of action against them in

nuisance in respect of the major part of their claim that the damage suffered as a result of the defendants use of

their land impeding drainage from the plaintiff's land. ...

but (2), giving judgement for the plaintiffs, that since the temporary additional flooding caused by the ejection of

water onto the plaintiff's land in the course of infilling the osier bed was reasonably foreseeable the defendants

were liable to the plaintiffs, either in nuisance or trespass for the damage occasioned thereby, namely, the

additional cost of pumping and maintenance during their ‘squeezing out period’.”

One of the questions that arose in that case was the question of reasonable foreseeability. In this case, I have already

stated that I am satisfied that the immediate cause of the flooding was the construction work that took place on the

farm pass in 1993. Thereafter, a combination of events occurred. Exceptionally heavy rainfall fell that weekend. There

was also a failure at the culvert by reason of the heavy rain and the silting up of the culvert which led to the stream

overflowing. The natural flow of the water after those events was through the fields leading to Mr. Ambrose’s house. This

is an area which is prone to flooding at a lower point along the road although not to the levels seen that weekend.

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. That, however, does not conclude the matter. Further exceptional rain fell on

Saturday night/Sunday morning. The culvert had not been cleaned out and the stream overflowed again. In the

meantime, the breach in the farm pass had been filled in. Mr. Ambrose gave evidence to this effect. Mr. Shevlin did not

admit to doing this but I cannot accept his evidence on this point. I am satisfied that he filled in the breach sometime on

Saturday. He did so without taking any steps to put in suitable drain pipes to allow any flood water that might accumulate

to escape. He should have taken reasonable steps to ensure that there would be no further problem. The result was

inevitable. Further flooding took place. This was entirely foreseeable. He subsequently took the necessary steps to avoid

a similar occurrence on the Sunday by inserting large drain pipes in the breach at ground level.

In the circumstances, I am satisfied that Mr. Shevlin is liable to Mr. Ambrose for the damage done to his property. I note

that a figure has been agreed in respect of damages. I do not think that it would be possible to make any distinction

between the level of damage done on the Friday night and the damage done subsequently. Accordingly, I will give a

decree in the sum agreed.