Property

Our housing estate is being flooded by a local farmer

Property Clinic: The recovery of damages will require proof that the farmer is at fault

It would be best to try to resolve your issues with your local farmer amicably. Photograph: Getty

Wed Sep 15 2021 - 06:00

We live in a small estate on the outskirts of a small town in the south of the country. Our house is one of eight built about 15 years ago on land purchased from a local farmer, who continues to work the small farm now bordering the gardens of half of the houses in our estate.

In the past couple of years (particularly during heavy winter rains) these houses have experienced an overflow of water into our back gardens, causing damage to the house and gardens. This water also overflows on to the road in the estate. We have identified that the source of this overflow stems from our neighbour’s farm.

We made representations to the farmer, who refuses to accept responsibility. Our county council has advised us that it is a matter between us and our neighbour and will only get involved if there is an issue of road safety. Can you advise what recourse we have against the farmer or county council to rectify this matter?

William O’Connor writes: This is not an uncommon problem that can arise where houses are built near lands used for generations for another purpose. Water infrastructure on private property is the responsibility of the landowner.

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The recovery of damages in law is generally based on the principle that the plaintiff must establish that the defendant was at fault for the damage. With the help of professional guidance, you may be able to establish the following legal wrongs, nuisance and/or trespass.

The tort of trespass is committed where the defendant, without lawful justification, intentionally or negligently enters or remains on, or directly causes anything to come into contact with the land in the possession of another.

It would appear from the information provided that you have identified that the cause, or significant contributing factor to the overflow that has caused damage to your property stems from your neighbour’s farm. Unfortunately, despite your initial representations the farmer has refused to accept responsibility.

To establish responsibility, you will require an expert report identifying the specific cause, or the significant contributing factor, to the overflow. A chartered building surveyor or engineer should be able to prepare a report for you setting out a comprehensive and detailed picture of precisely what occurred and the cause of same occurring. The report should also set out the particulars of the damage caused, the solutions and the likely costs associated with resolving the problem, including any remedial works.

The overflow into your property might also be considered to be a nuisance particularly as it is a repeating occurrence and not merely a one-off incident. Nuisance is an unlawful interference with a person’s use or enjoyment of land. The interference must be unreasonable, and may be caused by water, smoke, smell, fumes, gas, noise, heat or vibrations.

Where the defendant has not caused the nuisance, but merely permitted it to continue, then proof of negligence is required. Liability only arises where the defendant failed to take reasonable steps to abate the nuisance once he knew or ought to have known about it.

Water that flows through the property of another constitutes a nuisance, and the duty to abate a nuisance is not only limited to solving the physical nuisance or the completion of remedial works, but a defendant will also continue to be liable until the completion of those works and until they have provided an adequate undertaking in relation to future monitoring.

If your neighbour claims the damage to your property was not caused as a direct consequence of his actions, strict liability might be explored. Strict liability exists when a defendant is found to be liable without having been negligent.

An example of this is the rule established in the case of Rylands v Fletcher and can be summarised as follows: A person who brings or keeps on his land anything liable to cause mischief if it escapes will be liable for all the damage that is a natural consequence of any escape provided the harm of the relevant type was foreseeable.

Finally, your surveyor or engineer should be provided with copies of all relevant photographs, folios and maps, to include details of the other properties in close proximity. You should also inquire as to whether they have suffered damage and the history of same, if any.

Upon receipt of the report, you will be better placed to present a stateable claim against your neighbour, at which point you may consider exploring alternative dispute resolutions as a sensible, cost-effective way to resolving the issue. Your solicitor will advise on any resolutions. It would be best to try to resolve your issues with the neighbour amicably.

William O’Connor is a partner and solicitor at P O’Connor & Son solicitors

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