Grennan v O'Flaherty & Ryan
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 27 April 2010 |
| Neutral Citation | [2010] IEHC 157 |
| Docket Number | [No. 4311 P/2003] |
| Court | High Court |
| Date | 27 April 2010 |
[2010] IEHC 157
THE HIGH COURT
BETWEEN
AND
MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 690-8
HALPIN & ORS v TARA MINES LTD 1976-7 ILRM 28
READ v J LYONS & CO LTD 1945 KB 216
HUNTER v CANARY WHARF LTD 1997 AC 655 1997 2 WLR 684 1997 2 AER 426
HANRAHAN v MERCK SHARP & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234
SEDLEIGH-DENFIELD v O'CALLAGHAN & ORS 1940 AC 880 1940 3 AER 349
FITZPATRICK v O'CONNOR UNREP COSTELLO 11.3.1988 1988/4/1095
DALY v MCMULLAN 1997 2 ILRM 232
LARKIN & ORS v JOOSUB & ORS 2007 1 IR 521 2006/33/7056 2006 IEHC 51
AMBROSE v SHEVLIN UNREP DUNNE 11.12.2009 2009 IEHC 548
LEAKEY & ORS v NATIONAL TRUST FOR PLACES OF HISTORIC INTEREST OR NATURAL BEAUTY 1980 QB 485 1980 2 WLR 65 1980 1 AER 17
RYLANDS v FLETCHER 1868 3 LRHL 330
TORT
Nuisance
Trespass - Flooding on plaintiffs' land caused by defendant - Unlawful interference with enjoyment of property - Material damage to plaintiffs' property - Foreseeability - Reasonableness - Culpability on part of defendant - Failure to take reasonable steps to abate nuisance - Whether harm to plaintiffs' land foreseeable - Whether defendants behaved unreasonably - Whether damage caused by actions of defendant - Hanrahan v Merck Sharpe and Dohme [1988] ILRM 629, Fitzpatrick v O'Connor (Unrep, Supreme Court, 11/3/1988) and Ambrose v Shevlin [2009] IEHC 548 (Unrep, Dunne J, 11/12/2009) applied - Halpin v Tara Mines [1976- 1977] ILRM 28 distinguished - Reid v Lyons [1945] KB 216, Sedleigh-Denfield v O'Callaghan [1940] AC 880, Leakey v National Trust [1980] QB 485 and Hunter v Canary Wharf [1997] 2 WLR 684 followed - Daly v McMullen [1997] 2 ILRM 232 and Larkin v Joosub [2006] IEHC 51 [2007] 1 IR 521 considered - Claim upheld (2003/4311P - MacMenamin J - 27/4/2010) [2010] IEHC 157
Grennan v O'Flaherty
The plaintiffs are owners of a house known as "Wendell" on Torquay Road, Foxrock, Co. Dublin. It is a two-storey detached dwelling on approximately 0.35 acres of land. It is positioned to the south side of Torquay Road. To the south, the rear garden backs onto a green open space which forms part of a sports ground owned by Kilmacud Crokes G.A.A. Club for the defendants, the nominated representatives of the Club.
The plaintiffs' claim is essentially brought in nuisance and trespass. This judgment is confined to the issue of liability, the question of damages or other remedies being held over.
The case arises from flooding which the plaintiffs contend was caused by acts of nuisance of the defendants as occupiers of the neighbouring playing pitches and land which lie to the south of the plaintiffs' land and runs along their back garden wall. Kilmacud Crokes' grounds are extensive. They run some hundreds of metres to the south and west at the rear of the plaintiffs land. The Grennan's rear garden wall forms part of the boundary to the club lands as do the garden walls or fences of the neighbouring houses on the south of Torquay Road.
The defendants' premises are not a perfect rectangle. They are best imagined as "hatchet shaped" with Wendell lying just below the junction point between the upturned head and the handle. The hatchet "handle" runs to the left as one stands at the rear of Wendell. The area surrounding this junction will be called the "neck area" or the "subject lands".
There is now on the defendant's side a raised line of earth which runs very close to the rear boundary walls of the Torquay Road houses. How this was built in 2004 will be described in greater detail. The former Harcourt Street railway line ran near the path of this earth wall or "berm" until the late 1950s. Its path ran along the rear boundary of the houses. The iron tracks and supporting foundation material - known as "ballast" - was laid years before by the Great Southern Railway Company. Obviously for safety reasons there could then have been no direct access from the gardens of the houses onto the railway. However, after the line became derelict things changed.
After the railway, the subject lands which lay outside these garden walls fell into disuse. From some point, possibly in the early nineteen eighties it was used by builders to store material. The land became partly covered with brambles and undergrowth. A narrow space of perhaps 18 feet ran from the plaintiffs' rear boundary to the path of the line itself. Many of the Torquay Road homeowners (including the owners of Wendell) opened rear gates or doors onto this derelict land. Some (but not the plaintiffs), tried to extend their gardens right into the subject lands. Ultimately the defendants repulsed their efforts when they acquired the property. The residents used the rear area for recreational purposes. After the plaintiffs moved into the house in 1989 their two young children used to play there. Much court time was devoted to determining the relative level of the garden then compared to the club lands.
One of the reasons why the Grennans bought Wendell was because the rear garden was south facing. The family had previously lived in Torquay Road for many years though they had never visited this house prior to purchasing it. The Grennans put a new roof on the house and carried out many renovations. They added extensions to the rear and to one side of the house. While the plaintiffs had not been familiar with the house prior to the purchase they clearly knew the area very well as they had lived just across the road.
Mrs. Grennan is a keen gardener. This was also one of the reasons why she and her husband decided to buy the house. She described the rear garden as having been particularly beautiful containing a number of very old shrubs, plants and trees. She said it had a "fabulous" lawn and a beautiful garden. The plaintiffs' gardener Mr. Paddy O'Brien, retired, came in to tend the garden one half day a week both winter and summer.
There is no brick or block wall lying between the plaintiff's back garden and the defendants' lands. Instead the boundary is described by a large laurel hedge and fencing. Every so often Mr. O'Brien, the gardener, would cut the hedge back.
Immediately to the right or west, as one stands at the back of Wendell, there is another house which has now fallen prey to the recession. It was being re-developed but this has ceased for some time past. What lies there at the moment is a half re-built dwelling surrounded by scaffolding. There is no boundary wall to the rear of this house either. Instead there is also some hedgerow and a chain link fence. Wendell too, has a chain link fence lying within its laurel hedge. This acts as a reinforcement of the boundary against intruders.
To gain access by car to the club grounds from the Wendell direction, one would turn left coming out of the front gate of the house, travel down Torquay Road, turn left again at Leopardstown Road and thereafter enter Tudor Lawns, a newer development of well established semi-detached houses built in the early 1980s. The entrance to the club lands is through Tudor Lawns lies at the corner of that property furthest away from the plaintiffs' land. To the south and east of the G.A.A. grounds (at the opposite side of the "axe handle" from Wendell) there lies the boundary to Leopardstown Racecourse, bounded by a high wall.
If one draws a line diagonally from the Tudor Lawns entrance across to "Wendell" the land is not flat. From the club's entrance gate, diagonally across to the plaintiffs' rear boundary the land falls by a little more than eleven feet. There is too, a slight incline as one walks the much shorter distance straight across the neck from the back garden of Wendell to the racecourse wall. In some areas here there are hollows which are damp and marshy.
By the time the plaintiffs bought Wendell in 1989 the defendant had already commenced reclamation work of the playing area, situated in the main part of the club lands. But one area which remained neglected was the neck area and all that immediately to the rear and to the east of the plaintiff's property.
The playing fields were subject to "ponding" from the time that the defendant moved in during the early 1980s. The problem became very evident after heavy rain. The club premises had been grassland and pasture. Prior to the club's acquisition it was used as a temporary or part time pitch by Bective Rangers Rugby Club. The pitch itself was an inclined plane falling four to five feet with minor undulations. The land in total runs to twelve acres, approximately nine acres of which are now the relatively flat pitch area. The entire "handle" area measures approximately an acre and a quarter.
The railway line closed in 1956. Shortly thereafter, the rail sleepers and ballast were removed. What remained on the subject land generally was rough ground overgrown with bushes, briars and weeds. There was then no topsoil in that area.
Mr. Hank Fogarty testified on behalf of the defendants. He is a chartered civil engineer and was managing director of SIAC Construction. He was deeply involved in the club committee which dealt with the acquisition and development of the club lands known as "Silver Park". He testified that as and from 1981 no new rear gates were permitted from the Torquay Road houses onto the defendants' lands. The defendants considered that these had been improperly opened in the first place. The occupied land was reclaimed. Furthermore the club reasonably considered that it was inappropriate that dogs be exercised on their lands in circumstances where there would be children or young people playing Gaelic football and hurling. Mr. Fogarty testified that from time to time the residents dumped grass and hedge clippings...
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University College Cork v Electricity Supply Board (ESB)
...Daly v. McMullan [1997] 2 I.L.R.M. 232, Harrington Confectioners Ltd. v. Cork City Council [2005] IEHC 277 and Grennan v. O'Flaherty [2010] IEHC 157, the Leakey authorities represent good law in Ireland. This is without prejudice to ESB's right to argue the contrary in the event of any appe......