University College Cork v Electricity Supply Board (ESB)

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Max Barrett
Judgment Date05 October 2015
Neutral Citation[2015] IEHC 598
Date05 October 2015

[2015] IEHC 598

THE HIGH COURT

Record No. 129P/2012
University College Cork v Electricity Supply Board (ESB)
Approved Judgment
No Redaction Needed

BETWEEN:

UNIVERSITY COLLEGE CORK - NATIONAL UNIVERSITY OF IRELAND
Plaintiff

AND

THE ELECTRICITY SUPPLY BOARD
Defendant
1

JUDGMENT of Mr Justice Max Barrett delivered on 5th October, 2015.

TABLE OF CONTENTS
2

[Square bracketed numbers in Table of Contents are paragraph numbers].

CHAPTER 1: OVERVIEW. [1].
CHAPTER 2: STATUTORY BEGINNINGS [2].

The Act of 1945.

[2].

Preparing and approving schemes.

[3].

Executing approved schemes.

[4].

Generating and distributing electricity.

[5].

Section 28 and statutory immunity.

[6].

Section 34 and statutory duty.

[9].

Interim Electricity Generation Licence.

[10].

CHAPTER 3: THE RIVER LEE AND ITS CATCHMENT. [11].

Source and flow of river Lee.

[11].

Characteristics of catchment.

[12].

CHAPTER 4: THE RIVER LEE WITHIN CORK CITY. [13].

A city on a floodplain.

[13].

The modern city and the river.

[14].

UCC buildings.

[15].

CHAPTER 5: HISTORY OF FLOODING IN CORK CITY. [27].
CHAPTER 6: OVERVIEW OF THE LEE HYDROELECTRIC SCHEME. [28].

Approval of Scheme.

[28].

General description.

[29].

Carrigadrohid Dam and Reservoir.

[30].

Spillways.

[31].

Fish pass.

[32].

Inniscarra Dam and Reservoir.

[33].

Spillway.

[34].

Scour.

[35].

Fish pass.

[36].

Size of Scheme.

[37].

Fresh-water supply.

[38].

River-flow levels.

[39].

Fishery protection.

[40].

Wetland protection.

[41].

CHAPTER 7: HISTORY AND DEVELOPMENT OF UCC CAMPUS. [42].

1845-1972.

[42].

Master-plans.

[43].

The Development Plan Review (1993).

[44].

The Master-plan Review (2004).

[45].

History and Development of Tyndall National Institute.

[46].

The Buildings Committee.

[47].

Previous History of Flooding at UCC.

[48].

Mitigation of Flood Risks Known to UCC.

[50].

Flood protection and flooding at Glucksman Gallery.

[52].

Flood protection and flooding at Western Gateway.

[53].

Flood protection and flooding at the Environmental Research Institute.

[54].

UCC's response to the flooding of November, 2009.

[56].

Heightened awareness of flood risk.

[58].

CHAPTER 8: RESERVOIR TYPES. [59].

Purpose(s) of reservoirs.

[59].

Flood-control reservoir.

[60].

Hydropower reservoir.

[61].

Comparison of flood-control/hydropower reservoirs.

[62].

Dual-purpose reservoirs.

[63].

The 'design flood'.

[64].

CHAPTER 9: MAXNOL AND TTOL. [65].

MaxNOL defined.

[65].

Use of space above MaxNOL.

[66].

TTOL.

[67].

Is TTOL a level?

[68].

Obligation to achieve TTOL.

[69].

Some summary conclusions regarding TTOL.

[71].

CHAPTER 10: THE LEE REGULATIONS. [72].

Use and substance of operational rules.

[72].

The Lee Regulations: overview.

[73].

Dam integrity.

[74].

Water discharge-levels.

[75].

Communication breakdown between dams.

[76].

Evolution of Lee Regulations.

[77].

General structure of current Lee Regulations.

[84].

Summary of staff responsibilities.

[85].

Part I ("Regulations for Flood Management").

[86].

Flood periods.

[92].

Notifications and warnings.

[94].

ESB's Flood Model.

[95].

Flood operations: Carrigadrohid.

[97].

Flood operations: Inniscarra.

[98].

Falling flood.

[99].

Inniscarra tables.

[100].

Water Management Guidelines.

[101].

The Gearagh Wetlands.

[102].

Water abstraction.

[103].

CHAPTER 11: HYDROELECTRIC OPERATION. [104].

A natural tension.

[104].

Electricity generation versus flood alleviation.

[105].

TTOL.

[106].

Consequences of preferring hydro-electric generation.

[107].

Dam safety.

[108].

Acceptance that Lee Dams operate with objective of flood alleviation.

[109].

CHAPTER 12: WEATHER, RAINFALL, LEVEL AND DISCHARGE MEASUREMENTS. [110].

Private weather forecasts.

[110].

Rain-gauges.

[111].

Level and discharge measurements.

[112].

Cross-checking and averaging.

[113].

Calculation of in-flow.

[114].

River-gauging.

[115].

CHAPTER 13: A RAINY NOVEMBER. [116].

Rainfall data.

[116].

Recorded rainfall.

[117].

CHAPTER 14: THE FLOOD EVENTS OF NOVEMBER 2009. [118].

Introduction.

[118].

Monday, 16 th November, 2009.

[119].

Tuesday, 17 th November, 2009.

[129].

Wednesday, 18 th November, 2009.

[134].

Thursday, 19 th November, 2009.

[140].

Friday, 20 th November, 2009.

[218].

CHAPTER 15: DAMAGE DONE TO UCC'S PROPERTY. [240].

Overview.

[240].

Castlewhite Apartments.

[241].

Connolly Building.

[242].

Enterprise and Butler Buildings.

[243].

Glucksman Building.

[244].

Sports facilities.

[245].

Tyndall Buildings.

[246].

University Hall Apartments.

[247].

Victoria Lodge Apartments.

[248].

Western Gateway.

[249].

Western Road houses and Ferry Lodge.

[250].

CHAPTER 16: ESB'S APPROACH TO DAM SAFETY. [251].

ESB's hydro-electric portfolio.

[251].

Flood Control and Dam Safety Study.

[252].

'Overtopping'.

[253].

Results of Flood Control and Dam Safety Studies.

[254].

Dam safety as operated today.

[255].

Chief Civil Engineer.

[256].

The External Dam Safety Committee.

[257].

Hydro Stations Manager and Supervising Engineer.

[258].

The Lee Regulations.

[259].

CHAPTER 17: GENERAL PROVISION OF INFORMATION BY ESB. [260].

Overview.

[260].

Commencement of Dams - 2009.

[261].

22 nd June, 1987.

[262].

22 nd February, 1988.

[263].

21 st March, 1988.

[264].

11 th November, 1993.

[265].

Circa. April 2002.

[266].

Information provided to local authorities on 19 th November, 2009.

[267].

CHAPTER 18: FLOOD WARNINGS. [268].

Duty to warn?

[268].

Usefulness and need for warnings.

[270].

Flood prediction.

[272].

Assumption of responsibility.

[274].

A chronology of the flood warnings of November 2009.

[275].

Deficiencies in warnings.

[276].

UCC's Response to Warnings Received.

[277].

ESB's 25 contentions.

[279].

Some conclusions.

[280].

CHAPTER 19: ESB'S FLOOD INUNDATION STUDIES. [281].

Various inundation studies.

[281].

[1] River Lee Inundation Study (March 1988).

[282].

[2] Carrigadrohid Inundation Study (August 1992).

[283].

[3] Cork City Inundation Study (September 1994).

[284].

[4] River Lee Levels - Cork City (September 1994).

[285].

Interaction with local authorities and others.

[286].

Significance of inundation studies.

[287].

CHAPTER 20: FLOOD ALLEVIATION EFFECTS OF LEE RESERVOIRS. [288].
CHAPTER 21: CFRAMS AND FLOOD RELIEF. [289].

CFRAMS and Lower Lee Flood Relief Scheme.

[289].

Interim flood relief measures.

[290].

Significance of CFRAMS, etc.

[291].

CHAPTER 22: THE BUSINESS AND BENEFITS OF HYDRO-ELECTRICITY. [292].

Commercial purpose of Lee Dams.

[292].

Hydro-electricity and electricity prices.

[293].

Scale of revenue earned.

[294].

Hydro-electricity and grid system support.

[295].

'Black-start' support.

[296].

Hydro-electricity generation and CO2 emissions.

[297].

Water-supply.

[298].

CHAPTER 23: KEY DOCUMENTARY EVIDENCE. [299].

Limited number of key documents.

[299].

Interim Electricity Generation Licence granted to ESB.

[300].

Lee Dams Publicity Brochure.

[301].

The Contribution to Irish Society of Irish Hydro-Electric Dams.

[303].

"River Lee: Assessment of dam safety" (1987).

[304].

Internal Paper on "Hydro Generating Plant: Limits on Use of Storage" (1979).

[305].

"River Lee Levels - Cork City (Sensitivity to Inniscarra Discharges)" (September 1994).

[306].

Report on Management of Lee Floods of February 1997.

[307].

Presentation to National Hydrological Conference (2001).

[308].

Cork Joint Emergency Group Presentation (2002).

[309].

Submission to Review of Government Policy on Flood Relief (2003).

[310].

Report of AXA Insurance (2004).

[311].

Report on Lee Flood of December 2006.

[317].

CIBSE Presentation (2007).

[319].

Lee Stations Presentation to UCC BSc Environmental Studies Group (2007).

[320].

Note during Hydrometric Review done by OPW (2007).

[321].

Dam Safety Presentation to the OPW (2009).

[322].

ESBI Reports on Lee Flood Events of November 2009.

[323].

CHAPTER 24: EXPERT EVIDENCE. [326].
CHAPTER 25: MR SHIBATANI'S EVIDENCE. [327].

Description of expert and overview of evidence.

[327].

Multi-purpose or single purpose?

[328].

Water-levels (rule curves).

[329].

Flood-damage reduction.

[330].

Management of the flood events of November 2009.

[331].

[1]. Static water levels.

[332].

[2]. 'Empty space' failures.

[333].

[3]. Reliance on prescribed actions.

[334].

[4]. Specificity in the Regulations.

[336].

[5]. Transparency in decision-making.

[337].

[6]. Non-compliance with ESB's operating levels.

[338].

[7]. Tie between prescribed water/discharge levels.

[339].

[8]. Reactive decision-making.

[340].

[9]. High refill potential.

[341].

[10]. Quick reduction of water...

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