LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF A REFERENCE
R/14/1992
BETWEEN
PATRICK CARNEY - CLAIMANT
AND
THE DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND RESPONDENT
Lands Tribunal for Northern Ireland - Mr A L Jacobson FRICS
Ballymena - 4th October 1993 and 12th November 1993
This was a claim for compensation under the Water and Sewerage Services (Northern
Ireland) Order 1973, ("the 1973 Order"), in which the Claimant sought "damages for loss
and damage sustained by him by reason of the negligence and breach of statutory duty of
the Respondent, namely the Department of Environment, in or about the construction,
maintenance, repair, inspection and supervision of sewers at or about Claimant's
premises".
This hearing dealt with a preliminary matter as to whether or not the Lands Tribunal had
jurisdiction. In order that the facts be given to the Tribunal, Mr John Maxwell of Counsel
(for the Claimant) called Mr Patrick Carney and Dr Stanley Robert Cochrane MSc PhD
CEng MICE MIWEM MIHT to give evidence.
Mr John Sullivan (Solicitor) (for the
Respondent) called Mr James Raymond Peoples BSc, Senior Engineer in the Department
of the Environment ("the DOE").
The Tribunal finds the following facts proved or admitted:1.
Mr Carney owns No 6 Devon Court, Rathenraw, Antrim. He purchased the house in or
about 1981 from the Northern Ireland Housing Executive. The Rathenraw Estate is of
some 450 houses developed in a series of cul-de-sacs around a spine road named
Ballygore Road.
The ground of the Estate slopes down towards Devon Court from a number of
directions.
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2.
The foul sewers and storm water sewers for the estate drain down to the Devon Court
area before crossing under Stiles Way (which is at a higher level) to discharge towards
the south. Although the foul and storm water sewers are separate pipes they use
common manholes.
3.
In the general vicinity the sewers are of the following sizes and capacity:-
Foul Sewers - fully separate system
From manhole C133 to C134
300mm diameter
106 l/s capacity
"
"
C134
225mm diameter
60 l/s capacity
"
"
C53 to C134
150mm diameter
27 l/s capacity
C134 to C135
300mm diameter
106 l/s capacity
to
TOTAL
Storm Sewers - fully separate system
From manhole C133 to C134
300mm diameter
106 l/s capacity
"
"
C134
460mm diameter
249 l/s capacity
"
"
C53 to C134
225mm diameter
60 l/s capacity
C134 to C135
460mm diameter
249 l/s capacity
C135 to downstream 600mm diameter
425 l/s capacity
to
TOTAL
Foul plus storm sewers - when and if only partially separate system
From manhole C133 to C134
2/300mm diameter
212 l/s capacity
"
"
C134
1/225mm + 1/460mm diameter
309 l/s capacity
"
"
C53 to C134
1/150mm + 1/225mm diameter
86 l/s capacity
C134 to C135
1/300mm + 1/460mm diameter
355 l/s capacity
C135 to downstream 1/300mm + 1/600mm diameter
531 l/s capacity
to
TOTAL
4.
On 17th August 1987 there was a short but heavy downpour between approximately 5
pm to 6 pm. The sewers at Devon Court became unable to cope and to discharge the
volume of storm water. Local flooding affecting mainly Nos 5, 6 and 7 Devon Court
occurred.
Flooding in the garden of No 6 Devon Court reached a maximum of
approximately 3 feet with the level of flooding inside the house about 8 inches to 9
inches above the carpets.
Additionally, foul sewerage was forced up through the
downstairs toilet.
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5.
The Meteorological Office Rainfalls were recorded as follows:Aldergrove
Greenmount
Templepatrick
Toomebridge
15th August 1987
28.5mm
25.3mm
20.1mm
27.7mm
16th August 1987
23.0mm
20.8mm
27.9mm
37.0mm
17th August 1987
2.9mm
4.6mm
4.9mm
11.3mm
An extrapolation from the actual record of rainfall at Toomebridge for 17th August
shows that 10.4mm (of the 11.3mm which fell over the 24 hours period) fell between
5.20 pm and 6.05 pm.
6.
The estate sewers were formally adopted by the DOE on 5 th November 1982.
At the time of the flooding the Northern Ireland Housing Executive had a pre-adoption
repair contract to bring the roads and footpaths at Rathenraw up to the standard
required by DOE Roads Service. Subsequent to the flooding additional works were
included in that contract to provide improved drainage for the surface water run-off
from the green areas and roads at a number of locations, including Devon Court, within
Rathenraw.
The additional works included the provision of new gullies, drainage
channels and kerbing to catch and direct surface water run-off.
7.
During the DOE checks (by their Sewer Maintenance Supervision for the district)
following the flooding, a manhole chamber was identified which on investigation was
not part of nor was shown to be part of either the main foul or storm water system. A
surface water gulley situated on the pathway near to No 6 Devon Court was connected
into this manhole but there was no outlet from the chamber and it was filled with debris,
which had to be cleared to allow for complete investigation.
Mr John Maxwell of Counsel (for the Claimant) submitted:A.
The causation of the flooding of the Claimant's house was two-fold, viz:(a)
The natural drainage was interfered with by the embankment constructed at
Stiles Way.
(b)
The foul sewage system became surcharged because the storm water sewer and
the foul sewer used the same manhole chambers.
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B.
Works were executed in accordance with the requirements of Article 55 of the 1973
Order.
C.
Refers to Article 3(1) and Article 13(1) of the 1973 Order and Section 147 of the Local
Government Act (Northern Ireland) 1972. The Department accepted responsibility for
maintenance of the sewers and that constituted execution of works.
D.
Refers to the following decisions of the Northern Ireland Lands Tribunal:R/22/1983 McEldowney v DOE
R/41/1984 Hayes v DOE
R/23/1985 Keaney v DOE
Mr John Sullivan (Solicitor) for the Respondent submitted:(i)
DOE stands on the facts that there was no execution of works under the 1973 Order.
The McEldowney Case sets out the statutory requirements.
(ii)
As far as Article 13(1) of the 1973 Order there was no works of maintenance prior to
flooding.
(iii)
The Department's evidence showed that no works of any sort was carried out prior to
flooding.
DECISION
The Tribunal's jurisdiction arises in this instance (as it always does) from statute law only.
That jurisdiction is given by Article 55 of the 1973 Order and Section 38 of the Mineral
Development Act (Northern Ireland) 1969 as follows:Article 55 of the 1973 Order
"(1)
In executing any works under this Order, the Department shall (a)
cause as little detriment and inconvenience and do as little damage as
possible;
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(b)
make good, or pay compensation for, any damage caused by, or in
consequence of, the execution of the works.
(2)
Subsections (2) to (6) of Section 38 of the Mineral Development Act (Northern
Ireland) 1969 shall have effect for the purposes of any claim for compensation under
this Article as if, in those subsections, any reference to that section, that Act or the
Department of Commerce were a reference to, respectively, this Article, this Order or
the Department."
Section 38 of the Mineral Development Act (Northern Ireland) 1969
As amended in accordance with Article 55(2) above it reads:"(2)
Any question arising as to (a)
the entitlement of any person to compensation under this Order [the 1973
Order], or
(b)
the amount payable by way of that compensation,
shall, in default of agreement, be referred to and determined by the Lands Tribunal.
(3)
Compensation under this section in respect of damage to land shall not be payable
to any person from whom any land has, or ancillary rights over any land have, been
acquired by the Department under this Act and to whom compensation is payable
under section 14 of the Lands Tribunal and Compensation Act (Northern Ireland)
1964 by the Department in respect of injurious affection of the first-mentioned land.
(4)
In assessing compensation under this section in respect of damage to land regard
shall be had to any benefit which the person entitled to the compensation may derive
from any works which have been or are to be carried out, or any use of land, by the
person causing the damage.
(5)
In assessing compensation under this section in respect of damage to land regard
shall also be had to any undertaking given by the person causing the damage to
make alterations or additions to any works, or to construct additional works, or to
vary or abandon any use of land, or to abandon part of any land acquired or any
ancillary rights, or to grant other lands or easements.
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(6)
Where for the purpose of assessing the amount of any compensation payable under
this section the value of any land is required to be determined, that value shall be
determined in accordance with rules (2) to (4) of Article 6 of the Land Compensation
(Northern Ireland) Order 1982".
No doubt it may have been much simpler to give jurisdiction to the Lands Tribunal within the
1973 Order, but nevertheless it is to the Mineral Development Act (Northern Ireland) 1969
that the Lands Tribunal must turn to find its jurisdiction in the matter under consideration in
this case. The thin red line running through Section 3(2) to (6) of that Act is that the
Tribunal may decide the entitlement of and the quantum of compensation to be paid to a
person suffering damage caused directly by or indirectly by "works".
That is the crux of the matter in this Case:(a)
if the Department has carried out works and as a result damage has been caused,
either directly or indirectly then the Tribunal has jurisdiction to decide the entitlement
to and/or the quantum of compensation to be paid;
(b)
if no works have been carried out then the Tribunal has no jurisdiction. If damage has
arisen then jurisdiction lies in the Courts.
As far as works being carried out are concerned then in most ordinary cases it can be
proved as a matter of fact that some physical works have been done in the immediate
vicinity that caused the damage. On the evidence in this Case no such works were carried
out.
The system of sewers had been installed by the Northern Ireland Housing Trust when the
estate was first developed.
That system was adopted on 5 th November 1982 by the
Department in the following words:- "I hereby certify that the foul and storm sewers shown
coloured red and blue respectively on this drawing have been inspected and found to be
satisfactory. Therefore the Department of the Environment (NI) has agreed to adopt the
said sewers from 5th November 1982".
Dr Cochrane in his evidence sought to prove that the sewers gave inadequate flood
protection because their sizes were inadequate for the flow in the vicinity of the Devon
Court area. The Claimant then sought to show that statute law included that acception by
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the Department of responsibility was included in works carried out. Turning first of all to
that statute law:Article 3(1) of the 1973 Order:"(1)
Subject to this Order, the Ministry shall (a)
supply and distribute water;
(b)
provide and maintain sewers for draining domestic sewage, surface water and
trade effluent; and
(c)
make provision for effectually dealing with the contents of its sewers."
And in the Interpretation Article 2 of the 1973 Order is found the following definition:"maintain" shall be construed in accordance with section 147 of the Local Government Act
(Northern Ireland) 1972;"
Section 147 of the Local Government Act (Northern Ireland) 1972:"For the purposes of this Act (a)
not relevant to this Case.
(b)
power to maintain any thing includes power to operate, manage, repair, extend, alter,
improve, re-erect and renew it or any such building, works, equipment, facility,
service, amenity or other thing as aforesaid."
Article 3 of the 1973 Order defines the duties of the Department and Section 147 of the
Local Government Act (Northern Ireland) 1972 defines the width of the Department's
powers to maintain sewers.
Finally, Article 13(1) of the 1973 Order (the headnote of which is "Execution of Works") is as
follows:"(1)
The Department may (a)
provide and maintain such works;
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(b)
perform such services;
(c)
do such things;
as it considers necessary or expedient for the purposes of any of its functions under
this Order".
The Department "provided" the works by ensuring that when the estate of houses was
developed sewers were laid and when the Department was satisfied with the installation of
those sewers adopted the whole system after inspection thereof.
But that cannot amount to the executing any works referred to in Article 55(1)(a) and (b).
There is no evidence in front of the Tribunal that the damage was caused by, or in
consequence of, the execution of the works.
Undoubtedly there was damage to the contents of and the decoration of No 6 Devon Court,
Rathenraw, Antrim. Whether that was caused by a lack of capacity in the original design of
the system of sewers is not a matter for the Tribunal.
No execution of works was shown in evidence and thus the Tribunal's jurisdiction does not
arise under Section 38(2) of the Mineral Development Act (Northern Ireland) 1969 referred
to in Article 55(2) of the 1973 Order.
The matter has not been without difficulty and the Tribunal makes no order as to costs.
ORDERS ACCORDINGLY
MR A L JACOBSON FRICS
17th December 1993
LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances
Mr John Maxwell of Counsel (instructed by Messrs Conway, Flood & Todd, Solicitors)
for the Claimant.
Mr John Sullivan, Solicitor (of Departmental Solicitor's Office) for the Respondent.
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