Nuisance Issues
Overview
A key feature of a claim in nuisance is that it is not necessary to prove that the respondent’s behaviour was deliberate or even negligent. Once the act itself constitutes a nuisance and is an unreasonable interference with the claimant’s land, this of itself creates liability. In effect, the fault lies in the nuisance itself.
Circumstances and the environment may change over time and impose greater obligations. Therefore, liability has been imposed for damage caused to vehicles of a type which would not have used the adjoining highway /roadway in an earlier period.
Nuisance generally relates to an activity or to a continuing activity or state of affairs. A one-off event will not constitute a nuisance in itself. However, a state of affairs may lead to a one-off event and act of damage, in which event, it may constitute a nuisance
The degree of vigilance required depends on the circumstances, including the extent of the risk, which may depend on the nature of the location. Trees overhanging the boundary in an agricultural area require a lesser standard of vigilance than trees overhanging a boundary in a populated suburban setting. Where a tree over-hangs a boundary and damage arises from a hidden fault which is not reasonably discoverable, then there is no liability for nuisance.
Ingrid Stelzer v The Wexford North Slob Commissioners
1983 No. 4949P
High Court
4 March 1987
[1988] I.L.R.M. 279
(Lynch J)
The plaintiff is Miss Ingrid Stelzer of Kilmisten House, Castlebridge, Co. Wexford. The plaintiff claims that the defendants have been in breach of statutory duty and have created a nuisance by failing to maintain in proper repair and condition a catchment canal into which the plaintiff’s lands drain.
The plaintiff claims mandatory injunctions against the defendants requiring them to repair and maintain the said catchment canal and by way of amendment during the course of the trial she also claims declarations as *281 to the defendant’s duties regarding the repair and maintenance of the said canal. She also claims damages.
The defendants deny any neglect of duty whether statutory or otherwise and they further deny that they have created any nuisance or that they have any liability to the plaintiff.
The Facts
In 1962 the plaintiff’s mother Mrs. Elizabeth Stelzer bought that part of the lands of Kilmisten the subject matter of Folio 14575 Co. Wexford containing 92 acres 1 rood and 3 perches and a further part of the lands of Kilmisten the subject matter of Folio 9807 Co. Wexford containing 20 acres 2 roods and 37 perches and part of the lands of Ard Colm the subject matter of Folio 13547 Co. Wexford containing 24 acres 3 roods and 2 perches. The plaintiff’s mother became the registered owner of these three folios on 12 October 1964 and the plaintiff subsequently became registered owner on 16 October 1969.
Although the plaintiff’s mother bought the foregoing lands in 1962 and became registered owner of them in 1964 she did not come to live on the lands in 1962. Mrs. Stelzer and her daughter the plaintiff had lived in Canada where the plaintiff had just completed a university degree in political science and history. The plaintiff came to live on the lands and work the same in June 1962 having at that time no previous experience of farming. At first the plaintiff kept about 20 cattle and 80 to 90 sheep and also did some tillage. Between 1964 and 1972 she also kept mink but gave up keeping sheep. Through the years she has endeavoured to keep cattle and do some tillage and in more recent years she has resumed keeping sheep.
In 1972 or 1973 the plaintiff purchased parts of the lands of Ballyla the subject matter of Folio 14568 Co. Wexford containing 44 acres 3 roods and 32 perches. The plaintiff became the registered owner of these lands on 13 January 1975. The plaintiff’s predecessor in title to the lands of Ballyla was Miss Kathleen O’Connor who gave evidence before me, and the plaintiff’s predecessor in title to the lands of Kilmisten and Ard Colm was Patrick Jordan, whose daughter, Mrs. Catherine Crean, gave evidence before me. The plaintiff employs one full-time workman and in addition works part-time on the lands herself, the plaintiff being also part-time for the last six or seven years a student of law in Dublin.
The plaintiff’s lands are bounded on the South East and the East by part of the catchment canal already referred to. This canal extends for a distance of four and a half miles or seven kilometres and forms the northern, the north western and the western boundary of the Wexford North Slobs which were reclaimed from the foreshore and the sea in the middle of the 19th century. The area of the north slobs so reclaimed totals 2,489 acres. It is bounded on the south by an embankment running from the southwest end of the catchment canal in the west to the Raven Point in the east and it is bounded on the east by the sand hills known as the Raven. The embankment to the south cut off the north slobs from the sea. This would *282 have been of little use in reclaiming the north slobs if the hinterlands to the north, the north-west and the west continued to discharge their drainage into the north slobs. Accordingly the catchment canal was erected with the intention of cutting off the reclaimed lands from the hinterland to the north, north-west and west. In addition the catchment canal was intended to provide drainage to such hinterland from the north, the north-west and the west of the reclaimed lands in lieu of the drainage which such hinterlands (including the plaintiff’s lands) formerly enjoyed into the north slobs and the sea. The area of hinterland drained by the catchment canal is 2,133 acres.
Suggestions and plans had been put forward to reclaim the Wexford slobs for many years before the middle of 19 century. Eventually an Act was passed on 18 August 1846 called ‘The Wexford Harbour Improvement Act 1846’. This Act created a company known as the Wexford Harbour Improvement Co. and authorised it to carry out first improvement works to Wexford Harbour and the River Slaney as far as Enniscorthy and secondly reclamation works of the Wexford slobs north and south. Some work was done under the 1846 Act but the company created thereby was unable to cope with improvements to the harbour and the River Slaney and the reclamation of the slobs.
Accordingly the 1846 Act was repealed and replaced by the Wexford Harbour Embankment Act 1852 under which a company called the Wexford Harbour Embankment Company was created to reclaim the Wexford slobs north and south. I am concerned only with the north slobs.
Although I am dealing with the facts it is necessary at this stage to set out some of the provisions of the Wexford Harbour Embankment Act 1952 and more especially ss. 25, 26 and 45:
S. 25. For the purpose of effecting the embankment and reclaiming of the said wastelands, mudbanks or slobs and other works hereby authorised in connection therewith, it shall be lawful for the company their agents and workmen to make and alter and maintain good and sufficient walls banks and fences and also such waterways tunnels engines sluices roadways and other works in or upon through or over the said wastelands mudbanks or slobs and also to divert or turn the course over the said wastelands mudbanks or slobs of any river stream creek drain or water which does or shall flow in through over or upon the said wastelands mudbanks or slobs and to embank such rivers streams creeks drains or waters and to use and employ their wastelands mudbanks or slobs and water in such manner as to the company shall seem fit and proper.
S. 26. Provided always, that nothing herein contained shall extend or be construed to extend to empower the company to injure the draining of the lands adjoining the said wastelands mudbanks or slobs to be embanked and relcaimed by virtue of this Act, or to prevent or impede the free discharge of the waters of any of the rivers streams or creeks running from such adjoining lands.
S. 45. And whereas it is expedient to provide for the maintenance of the undertaking hereby authorised and for the continuous drainage of the lands embanked and recovered from the sea under the provisions of the Act hereby repealed and of this Act and for the repair of the works executed for such purposes so soon as the several lines of embankment and the catch water and other drains proper for the security of the same and for the cultivation of the lands so recovered from the sea shall have been completed: be it enacted, that the company and the owner or owners for the time being, as the case may be, of any *283 lands sold by the company under the provisions of this Act shall at his or their own expense and in the manner hereinafter provided maintain and keep in an efficient state of repair all the embankments and works already made, or which may from time to time be made by the company for the embankment recovery from the sea or drainage of such lands and which shall for the time being be essential for protecting the same or any part thereof from inundation and shall also maintain in repair all such drains culverts and sluices as may have been made under the provisions of the Act hereby repealed or may be made under the provisions of this Act in, over, or under such lands or any part thereof, and such embankments shall be maintained and kept in repair to the satisfaction of the said Lord High Admiral or the said Commissioners for executing the office of Lord High Admiral signified by writing under the hand of the secretary of the admiralty.
The work done by the Wexford Harbour Improvement Co. and by the Wexford Harbour Embankment Co. in succession to the former company was described in a paper read by one William Anderson to the institution of Civil Engineers in Ireland in December 1962. A copy of this paper was admitted in evidence without objection. Mr Anderson describes the work as follows:
James B. Farrell Esquire who was appointed the Harbour Improvement Co.’s Engineer at once commenced the works on the north side by constructing an embankment, beginning close to the public road near the ruins of Ardcavan Church, and running straight for one thousand six hundred yards to Big Island, and thence curving slightly to the southward 1,830 yards to the Raven Point which is the southern extremity of the range of sand hills forming the eastern boundary of the reclamation …. A cross section of the embankment is given: its total length is 3,430 yards: the crest which is six feet wide rises 13 foot 6 inches above low water at spring tide: the slopes are one and a half to one on the sea and one to one on the land side the former being protected by stone pitching …. In 1849 M. E. Talbot Esquire CE was appointed resident engineer. Under him the embankment was finished and a catchment drain four and a half miles long about four feet deep and ten foot wide at the bottom was constructed to intercept the waters of the mainland which it skirts preserving a dead level. It is strongly embanked on the side of the reclaimed land and discharges all its waters through tidal gates into the harbour the sand hills at its eastern extremity precluding a division of the outfall. It serves to carry off the watershed of 2,133 acres and is made of uniform width throughout in order that it might act as a reservoir during such times as the outfall was prevented by high tide. The result of these operations is the reclamation of 2,220 acres of excellent land added to which are 155 acres in what once were islands and 114 acres of old navigable channel making a total area of 2,489 acres enclosed.
It appears from the evidence of Mr Kevin Cullen called on behalf of the defendants that Mr Anderson may have slightly misunderstood the design of the catchment canal embankment on the slob side insofar as he said that ‘it is strongly embanked on the side of the reclaimed land’. It is true that the canal was strongly embanked on the slob side but only to a height determined by the height of the average or mean high tide level of the sea in the north slob area.
References to levels in this judgment relate to a datum of naught at the Poolbeg Lighthouse Dublin. In relation to that datum the level of the sill of the sluice gates at the outlet of the catchment canal to the sea is 1.75 metres over datum (M.O.D.).
*284
A chart showing the levels for tides, for the catchment canal and for the ground and water in different areas of the Plaintiff’s lands was proved in evidence by the said Mr. Cullen and I am satisfied is accurate. The mean high water level in spring tides is 3.13 M.O.D. and for neap tides is 2.83 M.O.D. Accordingly the average or mean high water is halfway between these two figures that is to say 2.98 M.O.D.
I accept the evidence of Mr Cullen that the catchment canal was originally constructed so that the level of its embankment on the slob (or east) side did not in general exceed the average or mean high tide level which is 2.98 M.O.D. The purpose of generally restricting the slob side embankment to this height was to observe the requirements of s. 26 of the 1852 Act and thus ensure that land which was always well above the mean high tide level, and therefore not liable to flooding by such tides before the reclamation works, would continue to enjoy the same conditions; because, if the water level in the canal rose to a higher level than 2.98 M.O.D. it would then overflow the slob side embankment and be carried away by a back channel into and through the drainage system of the north slob and by way of its pumping station out into the sea. Other lands of the hinterland not above the level 2.98 M.O.D. and therefore liable to flooding at average high tides would on average be no worse off—they might be liable to flooding when they would not have been (example in neap tides) and not liable to flooding when they would have been (example in spring tides) and thus a fair balance was maintained in order not ‘to injure the draining of the lands adjoining the said wastelands mudbanks or slobs to be embanked and reclaimed’ as required by the proviso in s. 26 of the 1852 Act.
I am satisfied therefore that the reclamation of the Wexford North Slobs and in particular the design and construction of the catchment canal complied with the requirements of the 1852 Act including the sections which I have quoted. No issue arises as to the proper maintenance of the catchment canal prior to the middle of this century. The plaintiff’s complaint is that since in or about the late 1950’s or early 1960’s the canal has been neglected and has ceased to provide adequate drainage for her lands as a result of which part of her lands have become flooded and useless.
The defendants are the Commissioners of the Wexford North Slob and are the successors of the Wexford Harbour Embankment Co. and by virtue of the provisions of the 1852 Act they have the duties and obligations and rights set out in the sections which I have already quoted.
Prior to the reclamation of the Wexford North Slobs two portions of the plaintiff’s present holding of lands were in fact part of the estuary and slobs of Wexford Harbour. The larger of these two areas is now known as the pill field and is the subject matter of Folio 9807 County Wexford of which the plaintiff is the registered owner. Parts of the pill field have a level of only 2.2 M.O.D. and all of the pill field is below the level 2.98 M.O.D. the mean high tide level. The pre 1850 maps show that the pill field was part of the estuary and was not valued at the time of the Griffith valuation.
The smaller of the two areas which prior to the reclamation of the north *285 slobs was part of them and estuarine comprises approximately two and a quarter acres in Ballyla, its southern boundary being the boundary with Kilmisten. This two and a quarter acres is not registered on any of the plaintiff’s four folios referred to above. It is just to the north of the north eastern extremity of the lands of Kilmisten registered on Folio 14575 and it is just to the south of the south eastern extremity of the lands of Ballyla registered on Folio 14568. The plaintiff has been in possession of this two and a quarter acres for many years and her predecessor in title Miss O’Connor was in possession of it before her, so that I regard the plaintiff as the owner of this area of lands for the purposes of this case. Nevertheless, the fact that this area is not registered on any of the plaintiff’s folios emphasises that it was part of the north slobs before the reclamation work began and was itself reclaimed by being cut off from the sea and tidal waters. The same applies to the pill field but it was many years ago transferred to the plaintiff’s predecessors in title and is now registered on Folio 9807.
Although the pill field and the two and a quarter acres in Ballyla were originally part of reclaimed lands, it seems to me that the legal duties of the defendants are no different in relation to them than they are in relation to the remainder of the plaintiff’s lands. This is because s. 45 imposes on the owner of the lands the obligation of maintaining the drainage works on the owner’s particular area of lands so that internal drains on such lands are the responsibility of the landowner. The duties of the defendants are not to worsen the drainage of such lands. However, the factual nature of these two areas of lands determines the extent of the rights of the plaintiff and the duties of the defendants in relation to these particular areas. The landowner cannot require the defendants to improve the drainage of the lands over and above what they would have been if there had never been the reclamation of the north slobs.
The plaintiff had no previous experience of farming before coming to live on and work the lands of Kilmisten and Ard Colm in June 1962. At that time there was a pump operated by a windmill to pump the water from the pill field into the catchment canal. When the pill field was reclaimed pursuant to the 1846 and 1852 Acts a drain was dug along the centre of the field running from west to east to the catchment canal and the windmill pumped the water from this centre drain into the canal, the water level in the canal being usually at a higher level than that in the drain. In addition a stream known as the Ard Cavan stream which formerly discharged into the western end of the pill field when it was part of the estuary was carried in a drain known as the Ard Cavan drain eastward to the catchment canal. The Ard Cavan drain runs along the southern boundary of the pill field which is itself the southernmost of the plaintiff’s lands.
In addition to the windmill to pump water from the pill field central drain into the canal, the plaintiff’s predecessor in title Patrick Jordan operated a form of sluice consisting of a series of wooden planks slotted one on top of the other between supporting uprights. Whenever the water in the *286 canal dropped below the water level in the drain he would remove one or more planks as appropriate and allow the water to flow from the drain into the canal. Whenever the canal water level would be higher than the water level in the drain he would replace planks to prevent the water overflowing from the canal into the drain.
The fact that the plaintiff denied any knowledge of this sluice between the centre drain of the pill field and the catchment canal serves to emphasise the plaintiff’s inexperience in farming and land management especially land liable to flooding. Both the pill field and the Kilmisten Ballyla area are low lying and are specifically marked on the ordnance survey land registry maps as ‘liable to floods’. The plaintiff did no maintenance work whatsoever on the drains on any part of her lands between June 1962 when she first came to live at Kilmisten and January 1981, a period of some eighteen and a half years. The plaintiff’s lands by virtue of their low lying nature require artificial drainage and constant maintenance of the drainage system. The hinterlands to the west of the plaintiff’s lands drain through the Ard Cavan stream and drain and the hinterland to the north west and north of the plaintiff’s lands drain through the Ard Colm and Ballyla stream and drain.
Prior to the reclamation of the north slobs the Ard Colm stream flowed from the north of the plaintiff’s Ard Colm and Ballyla lands in a southerly direction along the boundary between the plaintiff’s Ard Colm and Ballyla lands, discharging into the westernmost end of the estuary or inlet of the sea at Ballyla. During the north slobs reclamation work, a drain was dug so as to connect the discharge end of the Ard Colm stream in an easterly direction with the catchment canal corresponding to the Ard Cavan drain at the southern boundary of the plaintiff’s land connecting the Ard Cavan stream with the canal. The Ard Colm Ballyla stream and drain, the centre drain of the pill field and the Ard Cavan drain along the southern boundary of the pill field were all neglected by the plaintiff as were any internal drains on the plaintiff’s land. Water from the hinterland to the west of the plaintiff’s lands comes somewhat more quickly into the Ard Cavan stream and drain by virtue of improved drainage methods and likewise waters from the hinterlands in the north west and north come more quickly into the Ard Colm stream and drain.
The wheel and the blades of the windmill pump fell off about one or two years after the plaintiff came to live in Kilmisten whereupon that pump could no longer operate. The plaintiff made no attempt to repair the windmill or otherwise get the pump to work and was in addition wholly unaware of the sluice system previously operated by Patrick Jordan between the pill field central drain and the catchment canal. The plaintiff did not appreciate the importance of continuing Patrick Jordan’s system of draining the pill field and indeed she did not even know what sort of farming was carried on by Mr Jordan on the lands.
However, the plaintiff complains in this action that during the time since she came to live in Kilmisten the catchment canal was greatly neglected by *287 the defendants. She further says that as a result of this neglect the capacity of the canal to drain away water was greatly diminished which in turn resulted in overflowing from the canal into her lands. She alleges that it was pointless for her to maintain, much less improve, the system of drainage of her lands because this would largely have resulted in the extra water which she would discharge into the canal overflowing back again onto her lands.
Because of their dissatisfaction with the maintenance of the catchment canal the plaintiff says that she and eleven other landowners adjoining the catchment canal complained to the defendants during the late 1970’s and ultimately sent a letter of complaint dated summer 1979 to the Commissioners in the following terms:
We, the undersigned, whose lands adjoin the outer canal of the north slob, are gravely concerned with the worsening position regarding drainage of our land due to lack of proper maintenance of the outer canal.
Due to the high level of water in the canal, parts of our lands are flooded or unusable for long periods. There is also a risk of losing stock if they go into water logged areas.
We request the Commissioners to give attention to the following:
1. Repair and maintain the sluice gates at the mouth of the outer canal.
2. Install grid on the landward side to exclude foreign matter which prevents the sluice gates closing fully.
3. Dredge the canal along its entire length.
4. Maintain the canal banks and keep clear by spraying for weeds.
5. A culvert should be opened and maintained for some distance on the seaward side of the sluice gates to allow for the unimpeded passage of water from the canal when the gates are open.
We trust the Commissioners will give favourable consideration to the above proposals as we are at considerable financial loss due to not being able to use our lands fully because of the water logged condition of parts of our holding.
Yours sincerely
—
Ingrid Stelzer
John Creane Murphy
James Nolan
Martin R. Murphy
Matthew Murphy
James Quirke
Thomas Wall
Ellen Cloake
Catherine Sutherland
Charles Kavanagh
John Harding
Thomas Neville.
Shortly after that letter was sent to the Commissioners new sluice gates were installed at the outlet from the end of the catchment canal to the sea.
There are three main elements in the proper maintenance of the catchment canal. The most important element is the sluice gates at the south western end of the canal where it discharges into the sea. Secondly there is *288 the maintenance of the bottom of the canal and of its outfall to the sea at a level not exceeding the level of the sill at the sluice gates namely 1.75 M.O.D. and thirdly there is keeping the canal free from excessive vegetation.
The old wooden sluice gates were replaced by new metal sluice gates shortly after the letter dated summer 1979. It is apparent from photograph number 2 of the plaintiff’s photographs that the old wooden sluices were decayed and rotten when they were replaced. The evidence did not establish when the wooden sluices had first been installed but there was no suggestion that they were not quite old. I infer therefore that the old wooden sluices were not working to a proper level of efficiency for about four years prior to their replacement at the end of 1979, that is to say from in or about the beginning of 1976.
The evidence also established that a Mr Cash was employed up to the war years by the Commissioners and he manually opened the sluices at the end of the catchment canal most days throughout the winter months. The new metal gates which have been fitted are very heavy. Nevertheless, on an ebb tide they open and on a flood tide they close, but their efficiency would be greatly improved if they were manually or mechanically opened on an ebb tide so that the bottom of the sluice gates cleared the top of the water. I am satisfied that during bad weather in winter time this is necessary if the canal is to work to the proper level of efficiency which is now required of it bearing in mind particularly the fact that drainage from the hinterland to the west and the north west comes more quickly into the canal with modern systems of drainage than it did formerly. Drainage from the north where the Curracloe Bog is situate comes slowly into the canal and no more quickly than when the canal was first built.
As regards the second important element in maintaining the canal in proper working order I am satisfied that there is some silting within the canal upstream of the sluice gates to a level in excess of 1.75 M.O.D. This is especially so under the bridge which is just upstream of the sluices. This is contributed to by the fact that an access road to the beach beside the sluice gates has been widened in recent years allowing sand to blow in and silt up the bottom of the canal just upstream of the sluices. Nevertheless, the bottom of the canal must be kept at a level not exceeding 1.75 M.O.D. if it is to operate to its best efficiency. This had not been done. I appreciate that it is difficult for machinery to work at the bottom of the canal under the bridge but this difficulty must be overcome so that the bottom of the canal does not exceed the level of the sill.
Silting also occurs below the sluices on the outfall to the sea. Owing to the shifting nature of the sands in Wexford Harbour it is not possible to eliminate this silting, but it requires attention quite frequently, particularly in the winter time. I am satisfied that the defendants in the last three years or so have been taking reasonable steps to alleviate silting in the outfall from the catchment canal. I accept the evidence of Mr James Nolan that he carried out at least five dredgings to the outfall through 1984 and a like *289 number through 1985. In regard to the manual operation of the sluice gates I also accept Mr Nolan’s evidence that he has been manually operating them about four or five times each winter, on each occasion for a period of three to four days during which he opens and closes them once per day manually.
As regards the third element in the maintenance of the canal, namely, vegetation; up to the war years the defendants or their predecessors used to employ about twelve men who were unemployed from the nearby maltings during the summer months to clear the canal each year. That system of working ceased just after the war and the canal was not as well maintained from the point of view of cleaning out vegetation as theretofore. However, alternative methods were adopted in the late 1960’s when a drag line was introduced for the first time, and subsequently, chemical spraying for weeds; but these measures were not adequate. That they were not adequate is clearly illustrated by photographs 17 and 18 of the plaintiff’s photographs which show the difference between the situation before and after a proper dredging of the canal.
There is very little flow in the canal which is virtually dead flat for its four and a half miles. In fact the evidence was that there was a fall of only two to three feet over the four and a half miles from the north eastern corner down to the sluices at the south western end. As there is very little flow in the canal the excess vegetation does not have much effect on the rate of flow but it does reduce the storage capacity of the canal. The evidence was that the canal had a total capacity of about 7,000,000 gallons and its storage capacity is an important element in its proper working. A thorough dredging of the canal in 1986 resulted in restoring it to as good a condition as could possibly be expected at that time but of course the defendants have a duty to continue the control of vegetation which unfortunately grows in the canal quite quickly.
Conclusions
The plaintiff’s primary claims in this action are for mandatory injunctions against the defendants (a) to repair or replace the existing sluice gates, (b) to restore the full and correct dimensions of the canal, (c) to ensure the regular and efficient maintenance of the canal and (d) to reopen and maintain the outlet channel on the seaward side of the sluice gates.
I am satisfied that at least since 1984 the defendants are fully conscious of their duties and obligations in regard to the maintenance and repair of the catchment canal and its various mechanisms. I am also satisfied that the defendants have since that time been making reasonable efforts to carry out their duties even if such efforts may not have quite reached the proper standard. Therefore, I have come to the conclusion that in this case it would be inappropriate to make any order by way of mandatory or other injunction.
By way of amendment during the course of the hearing the plaintiff claimed a declaration that the defendants are under a duty to maintain the *290 catchment canal in such condition as will permit the free and unimpeded drainage from the adjoining lands to the west and north west of all such surface water as may naturally drain therefrom from time to time and a declaration that for the purpose of discharging the duty aforesaid the defendants are obliged where necessary to adapt, enlarge or otherwise improve the catchment canal and its mechanisms.
It seems to me that the first declaration is unnecessary because the defendants have throughout the case despite the formal denials in the pleadings accepted their responsibility to keep the catchment canal in proper condition. I think that the second declaration goes too far. The defendants for example are under no obligation to build a second canal alongside the first if circumstances should have so changed as to call for such second canal in order to cope with the water. Nevertheless the defendants are under an obligation to take account of what can be regarded as normal increases in the speed of drainage water arriving in the canal by reason of improved drainage methods in modern times and for that reason the defendants are under an obligation to take all the greater care to keep the catchment canal and its mechanisms working at their best so far as reasonably can be achieved.
In the circumstances it seems to me that the two declarations sought by the plaintiff in the note of the amendment which was handed in during the course of the trial are too wide and vague and for the purpose of assisting the parties I make the following declarations:
1. In recent years as a result of throwing the spoil from dredging onto the slob side embankment of the catchment canal the level of that embankment has been excessively raised at certain important points opposite the plaintiff’s lands. For example the slob side embankment opposite the Ard Cavan drain being the southernmost point of the plaintiff’s lands adjoining the canal is 3.79 M.O.D. whereas the canal embankment on the plaintiff’s side at that point is only 2.90 M.O.D. On the other hand just 80 metres on the sluice side of that point the slob side embankment is 2.93 M.O.D. whereas the plaintiff’s side embankment is 3.13 M.O.D. Again just 140 metres upstream of the first point opposite the Ard Cavan drain the slob side embankment is just 2.96 M.O.D. whereas the plaintiff’s embankment is 3.18 M.O.D. The defendants must restore and maintain the embankment on the slob side of the catchment canal to and at a level not exceeding 2.98 M.O.D. between the points 830 metres and 1,100 metres and the points 1,500 metres and 1,700 metres upstream or north east from the sluice gates. The plaintiff is under no corresponding inhibition regarding the level of the embankment on her side of the catchment canal.
2. The defendants must dredge or otherwise thoroughly clean the canal from the sluice gate for 1,800 metres upstream or north east at least once every second year and ensure that the bottom of the canal does not exceed the level of the sill at the sluice gates for at least the same distance upstream or north east. The defendants must dredge or otherwise thoroughly clean *291 the remainder of the canal upstream or north east at least once every fourth year.
3. The defendants must dredge or otherwise thoroughly clean the outfall from the sluice gates to the sea to a point not less than 55 metres beyond the end of the walls below the sluice gates in a south or south west direction at the option of the defendants so that no part of such outfall to such point exceeds the level of the sill at the sluice gates. Such dredging or cleaning must be carried out at least once every six weeks between November and March inclusive and once every nine weeks between April and October inclusive and also whenever the tide and/or weather conditions have raised such outfall significantly above the sill level at the sluice gates. A rise of not less than .15 metres that is to not less than 1.90 M.O.D. would be significant for this purpose.
4. The defendants must engage a person or persons to attend the sluice gates at least once every day (except Sundays and public holidays) during the months of November to March inclusive to ensure that the sluice gates are reasonably free of seaweed and other growths and debris and are automatically opening and shutting properly. Furthermore the defendants must engage such person or persons to open and shut the sluice gates manually so that the bottom of the gates clears the level of the water at appropriate times once per day (except Sundays and public holidays) during such months. The defendants must engage a person or persons to attend the sluice gates at least three times per week for like duties during the months of April to October inclusive.
The defendants may at their option install a system whereby the sluice gates will be automatically opened so that the bottom of the sluice gates clears the top of the water and automatically shut tight by electric or other suitable power at times appropriate to each ebb and flood tide and weather conditions respectively in which event they need engage a person or persons to attend the sluice gates only twice per week during the months of November to March inclusive and once per week during the months of April to October inclusive to ensure that the sluice gates are free of seaweed and other debris and are operating properly.
If the defendants decide not to install before March 1989 an automatic system for opening and shutting the sluice gates then the defendants must not later than March 1989 replace the present sluice gates with new gates to the best modern design. Such new gates should be lighter than the present gates perhaps incorporating some plastic material as well as metal in their construction so as to lift more easily with the ebb tide but should nevertheless be heavy and strong enough to fall again with the flood tide so as to shut out the sea water from the canal.
5. The defendants must take all such steps as are open to them whether as of right or by obtaining all necessary permissions and/or way-leaves to protect the canal in the vicinity of the sluice gates from the influx of water and sand from the beach whether via the access road to the beach or otherwise. If possible the defendants should build a wall or embankment *292 along the western side of the canal leaving a gap for the bridge over the canal for a distance of not less than 80 metres upstream from the sluice gates. In any event the defendants must clean out the sand from the canal immediately upstream of the sluice gates including under the bridge across the canal so that the level of the bed of the canal does not exceed the sill level 1.75 M.O.D. and preferably does not exceed 1.50 M.O.D.
It may be that the defendants may find assistance from the foregoing declarations in case of any discussions or disputes with other landowners outside but in the vicinity of the north slob reclaimed lands but nevertheless this judgment is between the plaintiff and the defendants and deals with their respective rights and duties from and to each other respectively and does not bind any other such landowner nor the defendants in relation to any other such landowner.
There remains the question whether the plaintiff is entitled to damages. The plaintiff cannot expect the defendants to keep the catchment canal and all its mechanisms at all times absolutely clear of vegetation, silting or obstruction. The defendants must however take all reasonable steps to keep the canal and its mechanisms in such working condition. There was some neglect by the defendants in this regard but the plaintiff cannot recover in respect of such neglect unless it caused her damage.
I think the defendants’ neglect did cause some damage to the plaintiff. Although the plaintiff was very neglectful of her own drains she was planning to carry out a drainage scheme from the late 1960s and early 1970s but was hindered and delayed in doing so by the unsatisfactory condition of the canal. On the other hand when the defendants brought machinery in the early 1980s onto the canal banks with a view to doing work on the plaintiff’s side as well as on the slob side the plaintiff would not allow them to do such work or throw spoil on her side. The plaintiff claims that the defendants’ neglect caused her loss between 1977 and 1986 inclusive. It seems to me that since 1984 the defendants have been doing substantial works on the canal and that any loss suffered by the plaintiff after the end of 1983 must be attributable to her own neglect rather than any default on the part of the defendants. I find however that the neglect by the defendants of the catchment canal and its mechanisms caused some damage to the plaintiff from 1977 to 1983 inclusive but even in relation to those years the losses were greatly contributed to by the plaintiff’s own neglect. The plaintiff is entitled to some damages but on a modest scale: she cannot expect that estuarine lands will not be marshy and flooded in winter time.
The plaintiff formulates her claim for damages as follows:
A.
Production Losses 1977/1986
£ 38,657.00
B.
Capital Cost of Reclamation
£ 36,821.56
C.
Other Losses
£ 47,903.71
D.
Future Losses
£ 13,596.00
Total
£137,978.27
I shall leave Item A, Production Losses, until last. Dealing first with Item B Capital Cost or Reclamation in a sum of £36,821.56 it seems to me *293 that that expenditure is so large because of the eighteen and a half years neglect by the plaintiff of the drainage of her lands and in any event the plaintiff now has the benefit of that expenditure. I allow nothing in respect of this head of claim.
As to Item C, Other Losses, £47,903.71. As to £36,400 of this claim it is for the plaintiff’s own time for two days per week for seven years at £50 per day. If the plaintiff had attended to the drainage on her lands over the 18 and a half years period of neglect she would have had to expend at least the same time. I allow nothing in respect of this claim. As to £2,200 of Item C it is for the extra area of the new drains. I am satisfied that the plaintiff’s lands needed extra large drains having regard to their low lying nature and that these new drains will improve the lands and should have been done in any event. I allow nothing in respect of this item. The same goes for the remaining claims under Item C all of which arise because the drainage of the plaintiff’s lands was neglected by her for 18 and a half years and the lands had thereafter to be restored by an extensive drainage scheme. Accordingly I allow nothing in respect of Item C.
As to Item D, Future Losses, in a sum of £13,596. The catchment canal has been in reasonably good order for the last few years. It is up to the plaintiff herself to repair the bank of the Ard Cavan drain and also the bank of the catchment canal on her own side. The plaintiff refused permission to the defendants to repair the canal bank on her side which they are not bound but were willing to undertake. Had she allowed the defendants to repair the bank or done the work herself and repaired the bank of the Ard Cavan drain and reopened the pipe to her pumping system the pill field could by now have been back to its former condition and likewise any other areas of land damaged partly by the neglect of the defendants. I allow nothing in respect of Item D.
I now turn to Item A of the plaintiff’s claim for damages, Production Losses £38,657. This figure is arrived at on an alleged loss of profits from livestock units which it is alleged or assumed would have been on the farm and were not on it due to the flooding. It seems to me that this method of calculation is extremely speculative. The plaintiff might or might not have had extra cattle on the lands and it seems to me that the better way to try to calculate the loss suffered by the plaintiff is by reference to the letting value of the lands affected by the flooding.
Over the seven year period from 1977 to 1983 inclusive I find that on average 30 acres of the pill field and the fields immediately adjoining it were rendered useless for the plaintiff. The letting value of these lands would have been £30 per acre or £900 per year which for seven years total £6,300. The plaintiff was herself two thirds responsible for this loss and I therefore allow to the plaintiff £2,100 in respect of this head of claim.
On average I find that 34 acres of the Kilmisten and Ballyla area was affected by the flooding and rendered useless for seven years. Of these 34 acres 17 acres would have had a letting value of £30 or £510 per year which for seven years is £3,570. The other 17 acres would have had a letting value *294 of £60 per acre or £1,020 per year which for seven years is £7,140. Thus the loss in respect of the 34 acres in the Kilmisten/Ballyla area is £10,710. The plaintiff was herself two fifths responsible for this loss and I therefore allow to her in respect thereof £6,426. Adding the loss in respect of the pill field £2,100 makes a total of £8,526 for which I give judgment for the plaintiff accordingly.
I give liberty to each party to apply generally.
Loss Required
Unlike the position in trespass, a case in nuisance requires proof of damage (loss). The damage may be physical interference or damage to land, interference with easements or interference with the enjoyment of land.
For example, the intrusion of roots or branches does not create an automatic right to damages. However, if there is a prospect of damage or risk, the adjoining owner may take pre-emptive action or seek an injunction in anticipation of damage.
Liability for nuisance does not generally extend to personal injuries. Its purpose primarily is to compensate for and prevent interference with the enjoyment of land. However, in principle, where such interference leads to personal injury, for example, in the case of noxious fumes, compensation for personal injury is available.
Relationship with Other Claims
Claims may be made both based on negligence and nuisance simultaneously. The same facts may justify both claims. The advantage of a claim in nuisance for the claimant is that it is not necessary to show that the defendant owed him and has breached a duty of care.
A nuisance may be contrasted with trespass. Trespass involves a direct and immediate incursion into the land.
In contrast, nuisance involves a state of affairs, which may, but does not necessarily involve an element of physical intrusion. Nuisance is wider than trespass and may involve smells, noises, a gradual intrusion of roots and many other phenomena.
Intrusion
A nuisance may involve intrusion or physical injury to land, but it primarily protects against interference with the use and the enjoyment of land, whether or not there is any intrusion of noise, smell, et cetera. It may be caused by such matters as the intrusion of dust, water, noise, toxic substances, smoke, sewage, obstruction and heat.
The intrusion of roots and branches may constitute a nuisance. Although trespass law covers intrusions over the boundary, which are the inevitable result of something being left at the boundary, the intrusion of roots and branches is regarded as too slow and indirect to constitute trespass.
Balancing of Interests
The courts may grant an injunction in order to limit activities which constitute a nuisance. Nuisance itself involves a balancing of the social use and necessity of the defendant’s conduct against the claimant’s enjoyment of property.
A similar balancing is always involved in the granting of an injunction. An injunction may limit work to normal workdays and working hours. It may limit the intensity of the user where, requiring, for example, certain activities are undertaken within defined limits.
Where an activity has become established in an area, the continuance of the same activity with the same level of intensity is unlikely to constitute a nuisance. However, where the activity is increased significantly in scale or intensity from its former level, there may be an actionable nuisance. Where a shop commences trading on a 24-hour basis in a residential area, then apart from planning law consideration, the intensification of use may constitute a nuisance.
Judicial Zoning
What may be acceptable in one area may not be acceptable in another area. In an apartment complex, neighbours will be expected to have a greater tolerance for noise and disturbance due to the practical limitations imposed by the proximity of owners. In the case of houses with gardens, a lesser degree of disturbance and noise will be reasonable and acceptable.
Nuisance recognises that an area may change over time. An area at the edge of a city at one time may be gradually urbanised and developed. Owners may be obliged to accept a higher degree of noise, activity and disturbance from surrounding properties necessitated by the greater density.
Activities which are acceptable in a commercial area may not be acceptable in a residential area. Within an industrial estate, activities involving considerable noise, fumes, dirt and other emissions may be deemed acceptable. In contrast, the commencement of such an activity in a residential area is unlikely to be permissible under the law of nuisance.
In modern times, the law of nuisance has been supplemented by planning law which regulates and restricts the use of land. Areas are zoned in accordance with Development Plans and local area plans.
They may allow for commercial, residential, other and mixed uses, in particular, defined parts of the local authority area. Modern development plans are sophisticated and may provide forward detailed indications of what is or is not acceptable.
Utility
The utility of the conduct and the intention of the defendant are relevant in balancing the interests of the parties. Where an activity is of little social use, it is less likely to justify an increase in noise, inconvenience and other adverse effects on adjoining owners.
Similarly, where a neighbour deliberately sets out to annoy his neighbour, then it may constitute a nuisance, even if the same activity might be justifiable and not be a nuisance if it was for a socially useful purpose.
Persons Protected
The occupier of land, including persons with no interest in it, such as the family members of the owner, may sue for nuisance. At common law, the claimant had to have some interest, such as a tenancy in the land.
Some cases limit liability to owners, licensees, and tenants. These cases have taken the view that family members should properly be compensated under the law of negligence, if at all, so that nuisance should be limited to a diminution of the amenity value of the land.
The Irish courts have appeared willing to take a more flexible approach. They appear to be willing to extend a claim to compensation for nuisance to occupiers who have been affected but who have no proprietary interest in the property.
Persons Liable
An action for nuisance may be taken against the person who has created the nuisance. The occupier of land will generally be responsible and legally liable for the nuisance. This will generally be a person in possession and control of land in the vicinity of that of the claimant.
A landlord is not liable unless he is authorised the creation or continuation of the nuisance. A nuisance may pre-exist the letting, in which event the landlord may continue to be liable.
A person will be liable for the actions of his employees, agents and contractor, for example, a building contractor. He will be responsible for the actions of his invitees and guests.
The occupier may be liable for a nuisance caused by other parties unless, having become aware of the nuisance, he fails to remove it or actually adopts it. What is required of an occupier in these circumstances will depend on his what is reasonable to expect. If an occupier has a significant infringing use thrust on him without his consent or fraud, the steps required will depend on his means and resources.
Boundaries
Occupiers of land may be liable for nuisance arising from boundary features. The cases show two trends, one in favour of imposing strict liability and one on imposing a more fault-based liability.
The owner of property owes a duty to prevent damage caused by falling trees and boundary features. The extent of the duty will depend on the circumstances. Greater care will be required in an urban setting than in a rural area.
The Supreme Court has expressed contrary views regarding the extent of liability for nuisance in relation to the highway outside of the respondent’s property. One view taken is that by dedicating such property as part of the highway, the adjoining owner ceases to be responsible for it.
Under another view, the occupier may be liable for nuisance on adjoining property, including that created by a stranger. He must know of the danger, and he must fail to take reasonable steps to avoid it. Even on this view, his obligations may be no higher under nuisance law than under negligence.
Liability for Escape of Dangerous Things
There is a separate principle of liability for the escape of things from land. Liability is strict. Proof of negligence is not required. This is known as the rule in Rylands v Fletcher.
The damage must be caused by dangerous, risky non-natural accumulations on land. Generally, if a person creates or allows something on land which would be dangerous to adjoining owners if it escaped, then he will generally be liable for the consequences if it escapes and causes damage to adjoining owners.
The rule reflects the principle that if a person brings onto and collects on land, something which would do damage if it escapes, he must keep it at his risk. The presumption is that the person is liable for all the natural consequences of an escape.
Non-Natural Use
The principle only applies where the land is used in some unusual or so-called “non-natural” way. There are different views on what constitutes a natural or non-natural use of the land. Dangers which arise from nature are natural.
Persons accumulating gas explosive substances, poisonous materials, fumes, and oil are clearly a non-natural use. Some other uses may not be so easy to categorise.
What is non-natural use depends on the time and circumstances. The mere keeping of dangerous materials will not necessarily be non-natural. The principle would only apply where the use was excessively large or unreasonable. The possibility of escape need not be foreseen. The possibility that it may cause injury must be foreseen.
The rule may apply where land is left in a dangerous state by activities such as where rocks are left by reason of clearance by explosions.
They must escape from the property, which is under the defendant’s control and occupation, to a place outside his control and cause damage.
As with nuisance, it is possible to claim damages or an injunction to restrain actual or feared damage.