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1. The Plaintiff is an Engineer employed by Clare County Council, who works at Ennis, County Clare. He resides at Ballagh, Bushy Park in the City of Galway. Bushy Park is accessed from the Ballagh Road some 200 yards from its junction with the Moycullen Road which is approximately 2½ miles from the centre of Galway City.

2. In 1970 the Plaintiff purchased a 6 acre site at Bushy Park with the intention of developing it, as he subsequently has done, as an upmarket residential estate. He built his own house in 1972/3. The access road enters into this residential estate from its junction with Ballagh Road and as one proceeds into the estate one is heading generally in a westerly direction with the housing sites on the left. In 1988 the Plaintiff got planning approval for development works for five housing sites adjoining his own house.

3. The lands to the right of the road slope downwards toward Lough Corrib some half a mile away to the north. The Plaintiff's own house is on the left of the access road preceded by an undeveloped site ("Site 6") and followed by the five sites authorised by the approval of 1988, Site 1 being situated immediately adjoining and beyond the Plaintiff's house and followed in order by sites 2 to 5. All the sites are to the left of the access road; immediately to the right there is a strip of land indicated as a landscaped area. The portion of the overall development site affected by the planning permission for the five sites commenced beyond the Plaintiff's own house and proceeded as far as the western end of the land. Near the entrance there is one area of ground known as "Site 7" which is to the right of the access road: a separate planning application was made for Site 7 in August 1998 and this application had not been determined when this case concluded.

4. The Defendant is an Accountant and in 1989 he bought Site 1 from the Plaintiff for £50,000. He has since built a house on this site. There is a house on Site 2 built by Noel Elwood which he has since sold to a Mr. Curran. On Site 3 is a house built and occupied by Padraic Rhatigan. Site 4 has since been purchased by the same Noel Elwood and Site 5 was purchased by a Mr. Garvey. .

5. Running along the northern border of the landscaped strip and Site 7 is a stone wall beyond which are lands owned by a Mr Keleghan and his son-in-law Mr. Connell. Beyond these lands again, at a distance of some 100 or more yards, are situated a number of houses facing northwards and situated on the southern side of the Moycullen Road. Mr. Keleghan is an elderly gentleman and both he and his son-in-law John Connell live in these houses.

6. The development of the housing estate proceeded on a one by one basis. The Defendant was the first to buy a site in 1989 when he purchased Site 1 from the Plaintiff. He did not get planning permission, however, until September of 1991. Meanwhile Mr. Elwood had purchased Site No. 2 and commenced to develop it in 1991. The Defendant commenced his work on site on the 13th January, 1992. He completed the house and moved in that year.

7. The sites in the estate were rocky and uneven so that considerable preparatory work was required on them before houses could be built. The Plaintiff had deposited a considerable amount of limestone boulders from Mervue in Galway on Site 1 several years before he sold it to the Defendant. Underneath this was an outcrop of granite. The site sloped generally towards the west and north. The general topography of the overall site and the area generally was that the land sloped to the west and to the north towards the Corrib.

8. The Plaintiff as developer of the estate was obliged to install services including the road and also to complete the landscaped area. In the nature of things this would be done on a step by step basis and when the Defendant purchased Site 1 in 1989 there was only a temporary road into the estate and the landscaped area had not been commenced. The landscaped area was ultimately completed in 1996 by Padraic Rhatigan who bought Site 3. In a separate action he is claiming reimbursement from the Plaintiff.

9. In this action the Plaintiff says that he gave the Defendant verbal permission for a temporary deposit and store of rock material (which the Defendant had to excavate from his site) on the landscaped area and Site 7 (together with a small portion of Site 4). The Plaintiff claims that since April of 1992 he has requested the Defendant to remove this rock material from his lands but the Defendant has refused to do so.

10. In an amended Statement of Claim the Plaintiff pleads that this temporary permission was to deposit and store the rock material on the road on the Plaintiff's lands but that the Defendant subsequently bulldozed this rock material from the road onto the adjoining lands. Again it is pleaded that the Defendant has refused to remove these rocks despite requests so to do since April 1992.

11. The Plaintiff further claims that the deposit of rock by the Defendant has severely damaged and continues to threaten the boundary wall between his lands and that of his neighbour Mr Keleghan. (This is the boundary wall which runs along the northern edge of the landscaped area). It is a traditional dry stone wall.

12. A further plea in the Statement of Claim alleges that this deposited rock continues to damage the boundary wall and to impede the Plaintiff in the development of his property and to constitute a nuisance to the Plaintiff and to his neighbours.

13. There is a further plea in the Statement of Claim that the Defendant in carrying out work to his site, damaged the Plaintiff's garden, but it was accepted at the hearing that this matter had been satisfactorily dealt with by the Defendant.

14. A further plea alleges damage to a soak away and kerbing by the Defendant to the Plaintiff's property which at the hearing was clarified to refer to Site 7 (which is directly opposite and across the road from the Plaintiff's own house).

15. A further plea alleges that on or about the 12th March, 1993 the Plaintiff fell on uneven rock deposited by the Defendant (when the Plaintiff was in the course of searching for horses of his own which had escaped from part of the overall site), in consequence of which the Plaintiff sustained severe damage to his knee and particulars of personal injuries are pleaded. The Plaintiff had to undergo two operations to his knee which has not cleared up satisfactorily and he is left with considerable permanent impairment.

16. The allegation to which I have referred to the effect that the continued presence of rocks deposited by the Defendant has impeded the Plaintiff in developing his property is in fact a claim by the Plaintiff that the rocks deposited by the Defendant on the landscaping area are unsuitable to be placed under landscaping and should be removed from the site before appropriate material necessary to comply with the requirements of the planning permission can be deposited in that area so that the appropriate landscaping can itself be carried out. In this action the Plaintiff is claiming a sum of money from the Defendant sufficient to enable him to carry out this work. It is to be noted that this work would involve, not only the removal of the rocks deposited by the Defendant in that area, but also the destruction of elaborate landscaping installed on top of these rocks by Padraic Rhatigan in 1996. The Plaintiff says, however, that in order to comply with his planning permission he must install six soak pits in this area and these must be constructed so as to extend downwards below the surface of the pre-existing soil to ensure satisfactory downward flow of water to avoid a flow northward into the Keleghan/Connell lands beyond the stone wall.

17. This brings me to another claim which arose at the outset of the hearing before me. The Plaintiff alleges that the deposit by the Defendant of these rocks and material in the landscaped area has not only damaged the wall to the north bounding his lands with the Keleghan/Connell lands but has also caused flooding of those lands since the road was completed in 1996.

18. At the commencement of the hearing before me an issue arose between the parties as to whether this claim of flooding had been pleaded. The Plaintiff claimed that it was pleaded at paragraph 7 of the Statement of Claim but I ruled that it was not. I indicated, however, that if the Plaintiff applied to amend the pleadings I would consider allowing an amendment to cover the flooding claim. This invitation was not taken up immediately but a number of days into the trial such an application was made and I permitted the Plaintiff to furnish a second amended Statement of Claim including a claim that the Defendant's continuing failure to remove the rock was the cause of flooding on the adjoining Keleghan/Connell lands.

19. The reliefs claimed by the Plaintiff include £35,500 (increased in evidence to £50,000) plus VAT being the cost of removing the rock material, an unestimated amount for the damage to the kerbstones and soak away on Site 7, certain special items in connection with the personal injuries claim and also an injunction requiring the Defendant to remove all the rock material from the Plaintiff's lands and to repair the boundary wall. There is also a claim for general damages relating to the personal injury claim. At the hearing the claim for an injunction was abandoned by the Plaintiff who relies only on the claim for damages in lieu.

20. In his defence the Defendant pleads that the Plaintiff himself required a substantial quantity of material to level the landscaped area and gave the Defendant permission permanently to deposit a large amount of rock thereon from the Site 1 area. Any deposit was done in accordance with this agreement. Any damage to the wall has been rectified and repaired (this relates to one incident where it was admitted that the Defendant had deposited material which cascaded down to and over the boundary wall and which the Defendant claimed was rectified as an isolated episode in the overall scheme of work).

21. The Defendant denies that the Plaintiff fell on any rock deposited by him and further pleads that the Plaintiff fell due to his own negligence or alternatively was guilty of contributory negligence.

22. In an amended defence the Defendant further pleads the protection of a full written indemnity signed by the Plaintiff in favour of the Defendant in respect of all actions arising out of the non-construction or non-maintenance of, inter alia, the open areas on the estate.

23. After the trial had been concluded the Plaintiff brought a Motion seeking to have it re-opened for the purpose of admitting fresh evidence that had come to light in a second case heard by me brought by Padraic and Sandra Rhatigan (as owners of Site 3) against him. This evidence was to the effect that the Defendant in these proceedings had entered into an agreement with his neighbours, Padraic and Sandra Rhatigan, Noel and Julie Elwood and Dr David and Martina O'Flaherty as owners of Sites 3, 2 and 6 respectively, to share between them the costs of having the landscaping and road making works carried out and in taking steps for the recovery of the cost of same.

24. The application was resisted by Counsel for the Defendant. I ruled, however, that the evidence should be admitted in the special circumstances obtaining and the case re-opened for that purpose. Accordingly I have before me copies of two agreements. One between the Rhatigans, Elwoods, O'Flahertys, and James Egan and Mary Fitzgerald and a second between the Rhatigans, the Elwoods and James Egan and Mary Fitzgerald and I have taken these into account. Only the latter agreement has been signed by James Egan.

25. A number of issues arise as follows:-

26. On this the issue, as on many others, there was a direct clash of evidence between the parties. The Plaintiff said that the Defendant asked him did he want the material and he said he did not. It was not normal fill material but rather was enormous boulders of the rock armour type. Then the Defendant asked him could he stack it on the road because it was expensive to move it off-site. He got permission to do this on a temporary basis and he stored it neatly which the Plaintiff says he would not have done if the Defendant had been given permanent permission. He denied directing the Defendant's machine operator as to where to deposit the rock and said that at the end of the extraction operation he did give permanent permission to the Defendant to deposit five to seven very large rocks in the river at the western end of the site.

27. Referring to the "spill" incident, he said that in March the Defendant's traxcavator dozed rock off the road area down the slope towards the boundary wall so that the rock spilled over the wall into Keleghan's land. He gave no permission to deposit rock on Site 7 or any part of the site on a permanent basis (except the boulders in the stream). It was put to him that he had a specific discussion with the Defendant and his engineer, Mr. Cahalan at which he gave permission to deposit the rock permanently. He denied having this conversation at all. He said he did not want the material, it was detrimental material and contrary to every design criterion. It was put to him that he was present on site on many occasions in the months of January, February and March of 1992 when the extraction programme was underway. He denied this save that he accepted that he was on site on four specific occasions in April and May of 1992 when the Defendant was carrying out blasting. The superimposed rock was limestone (imported from Mervue several years before into Site 1 by the Plaintiff) under which lay granite which had to be blasted to prepare for a raft foundation for the Defendant's house. He again denied giving a further permission to the Defendant through Mr. Cahalan on the occasion when he met Mr. Cahalan on one of the days of blasting. The implication of this alleged granting of permission by the Plaintiff was that the permission covered not only the superimposed limestone but also the granite which was the relevant material in the context of blasting. The Plaintiff denied giving such a permission. He said that the material was contrary to every design criterion and was totally unsuitable. It would not hold up in design terms. Furthermore the whole drainage was now not working and indeed the deposited material was the cause of flooding on the lands to the north.

28. He accepted that he made a formal complaint to the planning authority in relation to Mr. Elwood's site (Site No. 2 immediately adjoining and to the west of the Defendant's site) in the context of Mr. Elwood importing a lot of rock onto that site and thereby raising it. This resulted in a "Section 31" notice under the Planning Acts, which required Mr. Elwood to reinstate the site to its original level. Mr. Elwood, in compliance, dumped a lot of fill material across the road into the landscaped area opposite his site.

29. He denied giving instructions to the traxcavator operator who was dumping material extracted from Site 1. The operator's name was Mr. Leydon. The Plaintiff denied giving Mr. Leydon instructions to level off the site. Equally he denied giving instructions to the Defendant's contractor Mr. Rattigan. He said he never directed him (in connection with the rock dumping operation) at any stage. He denied giving permission to Pat Laverty who was doing work for Mr. Elwood to dump fill across the road.

30. The Plaintiff did accept that he gave permission for material to be dumped on Site 7 but this was only on a temporary basis and it should be removed by the Defendant.

31. It was put to the Plaintiff that the concept of a temporary deposit of fill was contrary to all economic handling of material and that it was a basic principle that one avoided "double handling". Breach of this principle was involved in the notion of a temporary permission to deposit this material. The Plaintiff replied that the Defendant had undertaken an extraction programme where there was a lot of material coming off his site and he had not arranged for an off-site deposit. He denied that the Defendant could actually make a profit dumping this material off-site because he said it would cost him more to transport it than he would get.

32. The nub of his present problem was that the percolation area (under the landscaping) must be carried down to below the level of the natural ground and it was also necessary to take pressure off the wall to reduce the nuisance to the adjoining land owner.

33. The Defendant said that the Plaintiff told him that whatever materials came out of his site he could deposit to fill up the hollow ground between the road and the adjoining wall. (This is the area which I have referred to as the landscaped area). The Defendant said that the Plaintiff indicated that this would be of benefit to both parties as it would help the Plaintiff fill a hollow and the Defendant avoid transporting material off-site. It was clearly understood that this was to be a permanent deposit. The Plaintiff was on site on a number of occasions in January 1992 and directed that the deposited material would be levelled off.

34. With regard to the "spill" incident the Defendant accepted that this had happened, he was annoyed with the driver and instructed him to put the matter right. This was not done satisfactorily initially and the Defendant insisted that it be done again, which it was, to his satisfaction. He had told the landowner, John Keleghan Senior, that he would have the wall repaired and John Keleghan said "that's fair enough" . After the repair he had not been approached by John Keleghan. The Plaintiff wrote to him on the 5th April, 1992 requesting removal of the material off site following which he found an alternative place to deposit the fill in land owned by a Thomas Heffernan just up the road and he commenced dumping there. At this stage the Plaintiff requested some material for Site 7 and the Defendant arranged to have material dumped on Site 7 at the Plaintiff's request. Once again, the Defendant said, this was to be a permanent dumping.

35. Evidence was given on this question of whether or not the Plaintiff granted permission for a permanent deposit of rock by Seamus Cahalan who is a surveyor, a civil engineer with a BA in maths and geography who teaches English and French. He was retained by the Defendant and was on site in January 1991 and he made a planning application for the Defendant's house in February of that year. He said that the Plaintiff came over to him, he was extremely friendly and very charming and helpful. They talked about the design of the house and specifically that it would involve a basement garage and two storeys. Seamus Cahalan said that the Plaintiff suggested that any fill taken out could be put in the area north of the distributor road to build up levels. He suggested this would facilitate both him and the Defendant. There was no question of this permission being temporary. Seamus Cahalan said that if that had been suggested he would have vehemently objected because he was brought up on the principle that you moved material only once. "It is a mortal sin of excavation to move twice" . At this stage (January 1991) they were not talking about blasting. At the time of the blasting (in Spring 1992) he went on site and again met the Plaintiff. This time the Plaintiff came over to where he was chatting with the Defendant and told them where to put the material. It was now clear that the material being discussed was granite extracted from the blasting. He, Mr. Cahalan, insisted on having a photographic survey of the Plaintiff's house contrary to the views of both the Plaintiff and the Defendant who at that time were on friendly terms.

36. This witness said that he made a sketch of the area where the rock fill was to be deposited as indicated by the Plaintiff. He made this sketch in his notebook on site in the presence of the Plaintiff.

37. Evidence was given on this issue by Michael Rattigan who was a contractor employed by the Defendant. He started work on the 15th January, 1992 and on the first day the Defendant himself showed him where to dump the material. On the second morning, however, the Plaintiff came out on site and showed him where to tip the material after that. The Plaintiff arrived at around 9.00 a.m. and he said he needed to fill down along the depression to the north of the road and that they could tip away down along as much as they needed. The Plaintiff came out on site on a regular basis in the mornings and said that he needed the material to bring up the road levels. After a while the Plaintiff said that they had enough tipped and they should try and find another site. They then moved to Tom Heffernan's site at the back of the Defendant's site which was about three-quarters of a mile away. Soon after that the Plaintiff approached him and said that he could do with some of the blasted rock on Site 7. He told him where to put it on Site 7.

38. Evidence was also given on this issue by Pat Laverty from Moycullen. He said that in 1991 he did machine hire work for Noel Elwood (owner of Site 2) in July of that year. He was getting the site ready for the builders. He went to the Plaintiff and asked him could he dump material on the far side of the road and the Plaintiff said "Yes, provided it was good fill". He dumped about twenty to twenty-five dumper loads, being forty tons of material. he said he would not attempt to do this without asking the Plaintiff's permission.

39. Evidence was also given on this issue by Jim Leydon who was the driver of the traxcavator used for extracting material from the Defendant's site. He started work on the 15th January, 1992 and finished on the 31st of that month. The Plaintiff was around on the site and he could see him giving directions and talking with Michael Rattigan. He would be around in the mornings between 8.00 or 8.30. The Plaintiff told him to hold reasonably good stone for the roadway and he, Mr. Leydon, graded this stone with the bulldozer on the Plaintiff's instructions. He asked whether he could himself take fill off site and he was not allowed because the Plaintiff needed it. The Plaintiff gave him, Mr. Leydon, instructions where to dump the material down along the road on the right hand side.

40. On this issue as will be seen there is a direct clash of evidence. Both versions cannot be correct: there is no way of reconciling them. The Plaintiff says that he gave no permission for a permanent dumping except for seven very large rocks which are not in issue, there was only permission for a temporary dumping on Site 7 and on the road, but not in the landscaped area. He, furthermore, insists that he was not around on the site in the mornings, as was put to him, during January and February of 1992.

41. I am unable to accept the Plaintiff's version on this matter. I find that he was on the site on a number of mornings when he said he was not, that he gave permanent permission to deposit rock material under the landscape area and in the area known as Site 7 as well as on the road. I prefer the witnesses called on behalf of the Defendant on this issue.

42. I am not impressed with the Plaintiff's contention that the rock material was not suitable as a sub-material for a landscaped area or as percolation area under the landscaping. The Plaintiff did not give me any explanation which appeared to me to explain why he contended that this material was contrary to design criteria and unsuitable. On the contrary I accept the witnesses called by the Defendant on this aspect to which I will refer later in this judgment.

43. Not only, in my view, does the evidence establish that the material was suitable as a percolation medium but I am satisfied from evidence to which I will refer later that it has worked adequately in practice. Furthermore, I accept that the Plaintiff's contention that only temporary permission for depositing this material was granted would involve "double handling" of material which makes little sense. This of its own, of course, does not prove that such permission was only temporary but it does indicate that a temporary permission would require explanation.

44. I hold that the Plaintiff did give permission to the Defendant for the permanent deposit of the rock spoil from Site 1 to be deposited both in the area to the north of the estate road and between it and the boundary wall, and on Site 7 and under the road. I further hold that the Plaintiff gave directions to the operatives on the site as to where to deposit this material. I further hold that the "spill" incident which involved a dumping of material down the incline to the boundary wall and over the wall was rectified by the Defendant so that

45. Mr. Keleghan, who gave evidence, was reasonably satisfied with the tidying up and re-instatement of the wall notwithstanding that same may not have been perfect, and that he did not come back to the Plaintiff after this "spill" had been rectified.

46. The Plaintiff said that the landscaping would have to be removed to relieve pressure off the wall and also to relieve flooding. Mr. Kelaghan's son-in-law John Connell said that the in-fill came up four or five feet on the wall and in many cases higher than the wall. He said the wall was threatened and part of the wall collapsed under pressure. He also referred to the landscaping spilling on to his land. He said that the repair was not satisfactory because the boundary wall was not stock-proof. He accepted that Mr. Egan had promptly cleared back the hundred tons or so which had breached the wall when he complained. His main complaint now is that the stones were up against the wall and threatening its stability.

47. James Hassett, consulting engineer, gave evidence on behalf of the Defendant. To me he said that his initial instructions did not include any consideration of the suitability of the Defendant's rock for percolation. He said he visited the site at the Plaintiff's request in May of 1994 and was asked to comment on whether it was necessary to remove the fill for landscaping purposes and also to comment on the damage to the wall. In his view the wall was breached in a number of places along two hundred yards and needed to be rebuilt. He thought that it would be necessary to remove the fill from the bottom of the wall and slope it up to the edge of the roadway. At that stage there was no landscaping. He visited the site again in January 1996 and he estimated the cost of removing the rock fill at £28,500. this was to cover removal of 6,000 cubic metres of rock at £4.75 a metre. Adding a small item for the repair of a soak pit at £500, preliminaries at £2,500 and VAT at 12½% it would make a total of £39,937. Since that date estimates for such jobs had gone up 20%-30% and he would estimate the total cost of a tender for the necessary work in today's prices at £50,000. He said he was not back since January of 1996. He had calculated the amount required for removal by taking sections of the filled-in area. He said the soak pits should have been put in before the roadway was done and if they were put in they would prevent water flowing down to Keleghan's land. He was concerned with material resting on the Keleghan wall.

48. Evidence was given on this topic also by Michael Cooke who is a civil and chartered engineer, an ex-member of An Bord Pleanala and he is in practice for ten years as a planning consultant. He went on site in June of 1996 to advise the Plaintiff in relation to landscaping being carried out by Mr. Rattigan. This landscaping itself was "quite attractive" but he thought that the deposition of the amount of material under it was unauthorised development, that the person doing so did not have a sufficient interest in the land and he thought that the wall would not be able to retain this material. He thought that the soak pits required to be installed pursuant to Condition 7 of the planning permission should be extended to below the level of the existing ground to prevent flow of water into Keleghan's land. He visited the site in January of 1998 on a wet day and he saw water running off down the road because the gullies were not capable of taking the water. He saw material sloping to the top of the boundary wall and above the wall in other places. This produced a horizontal force against the dry stone wall and he said "It could go tomorrow" .

49. He said that the percolation of water would add extra pressure to the wall which has no resistance to it. He said that the water was flowing into Keleghan's land and that this was caused by the high level of superimposed material on the landscaped area. The water flowing into Keleghan's lands was run off (from the road surface), rather than flooding. He disagreed with the idea that the rocks under the road were acting as an ideal soak away. He said in his view they were not suitable as a soak pit. He said, however, that the rock at the moment was not his greatest worry, rather the imposition of the great amount of material on the rock producing a horizontal pressure. It was not so much the rock but the combination of the sub-soil and top soil on the rock which was causing the problem. He was not sure whether the "self-weight" of the rock would produce no horizontal pressure but the combination would.

50. Evidence was given for the Defendant on this aspect by John Mooney who is a consulting engineer. He was engaged as a structural engineer and designed the foundation raft for the Defendant's house. He said that the rock was ideal for road construction and landscaping as a base for the drainage areas. There was no difference between that and a soak-pit in terms of operation. On his calculation there are 2,400 cubic metres of soakage area under the roadway. This is based on an 8 metre wide road 300 metres long. He said that he looked at the site and at the wall from the Keleghan's side. He saw no evidence of structural damage to the wall. The landscaping ran to the base of the wall and on some occasions up the wall but he said it was not to the top. There was no evidence of wall damage. There was no evidence of a hydrostatic pressure (bulging) or water coming through (appearance of wet on the Keleghan's side).

51. Evidence was given by John Mulqueen, agricultural hydrologist, on behalf of the Defendant. He said that there was no evidence of hydrostatic pressure on the wall and the soil against it shows tension cracks which would tend to pull it away from the wall. He thought that the rock fill had been carefully placed and is sloped well back from the wall where it is high. He was confident that there had been no damage to the wall and that none would occur. He said that he walked along the entire stone wall on three occasions and made detailed observations. He saw no point on the wall where the embankment had caused deterioration of the wall's conditions. He took several photographs and noted two points where third parties had obviously knocked stones from crossing over the wall. The wall appeared stock-proof.

52. On the specific issue as to whether deposited material has caused or is causing damage to the boundary wall there is, once again, a clash of evidence, this time of expert opinion.

53. I think the more detailed opinion on behalf of the Plaintiff as between

54. Mr. Hassett and Mr. Cooke, is that of the latter, although I must also keep in mind, as invited to do by Mr. Macken S.C. for the Plaintiff, that Mr. Hassett is a structural engineer. Mr. Cooke's evidence was carefully expressed and he said that his concern was not with the rock but with the combination of the rock and the topsoil/subsoil. He also said that the percolation of water would add extra pressure to the wall which has no resistance to it. On this aspect, however, there is other evidence to which I will refer in a moment that there is no likelihood of horizontal or lateral movement of water towards the wall which is caused by the deposition of rocks by the Defendant.

55. The Plaintiff's evidence on this issue is countered by the evidence of John Mooney who is himself a structural engineer, and also by the evidence of Mr. Mulqueen. The onus of proof rests on the Plaintiff to satisfy me that, on the balance of probability, the material deposited by the Defendant (and no other material) has probably caused or is likely in the future to cause damage to the stone wall - apart, that is, from the one incident of the admitted "spill" of rocks which was cleared up as I have held to the reasonable satisfaction of the third party most affected, namely, the landowner Mr. Keleghan.

56. Mr Hassett, the structural engineer called by the Plaintiff, thought that when he visited the site in May 1994 (at which stage there was no landscaping on the material deposited by the Defendant) that there had been a breaching of the wall along some 200 yards and that it would be necessary to remove the fill and slope it up to the road. On the other hand, neither Mr. Mooney, himself also a structural engineer, nor Mr. Mulqueen saw evidence of damage to the wall four years later, nor was Mr Cooke, who was called for the Plaintiff, overly concerned by the deposit of rocks per se.

57. Mr. Mooney did accept that it was not good practice to have allowed the deposit of fill material to spill up against the wall.

58. I do not consider that the Plaintiff has discharged the onus of proof on him to establish as a matter of probability that there has been structural damage to the wall or that there will be such in the future. I do consider, however, that the spill material deposited by the Defendant has been piled against the wall in places and that this should not have happened. I do not consider that the permission given by the Plaintiff for the permanent deposit of this material, or even that his directions to Mr. Rattigan and Mr. Lyden as to where to put it, can reasonably be said to have included permission to allow the material to pile up against the side of the wall, as has happened.

59. I do not think the Plaintiff would have been entitled in 1994 (when Mr. Hassett visited the site) to have required the Defendant to remove all of the material deposited but I do think he would have been entitled to have required the Defendant to have a machine pull the material back from the wall and slope it up to the road and remove any surplus from the site. This would have been a fairly basic operation involving one machine and a lorry for a day or two. Mr. Mooney considered that such an operation would have cost in the Order of £500.

60. In addition to this Mr. Hassett gave evidence that in his opinion the wall, at that time, had been breached in a number of places along a stretch of some 200 yards. The repair of such breaches would, once again, be a relatively simple job, again, costing in the order of some hundreds of pounds.

61. I should clarify that the cost estimates given by Mr. Hassett and totalling some £50,000 in today's money, do not relate to the kind of relatively minor operational transgressions with which I am dealing here. These transgressions consist of allowing the spill to pile up against the wall and permitting breaches in the wall in a number of places along a 200 yards stretch. Mr. Hassett's estimates were referable to the removal of the entire rock deposited by the Defendant on the basis that some 6,000 cubic metres were involved. I have already held that the Plaintiff gave permission for the permanent deposit of this rock and what I am dealing with here are relatively minor breaches comparable, I think, to the "spill" incident for which the Defendant took responsibility and which was cleared up on his behalf by Mr. Rattigan and Mr. Lyden.

62. In the absence of specific evidence of costings and before considering the additional evidence which I allowed after the trial had concluded and to which I have referred earlier in this judgment, I would have considered that the Plaintiff would be entitled to a decree under this heading of £1,000.00. However in light of the additional evidence I must also bear in mind that the Defendant had entered into an agreement with his neighbours agreeing to share the costs of the landscaping works and of recouping same from the Plaintiff in these proceedings. To that extent I consider that the Defendant in these proceedings must accept some responsibility for the carrying out of the landscaping works. In light of this I have had carefully to re-consider the views of Mr Cooke to which I have referred earlier to the effect that his concern was not with the rocks themselves but with the combination of the rocks and the landscaping soil deposited on them. I remain of the view that the Plaintiff has failed to discharge the onus of proof on him to establish as a matter of probability that there has been structural damage to the wall or that there will be such in the future but I consider that the decree to which the Plaintiff is entitled under this heading should be increased to reflect the additional cost of removal and re-instatement of some of the landscaping necessarily involved in pulling back the deposited material from the wall and re-establishing any landscaping disturbed. Once again I do not have specific evidence of costings of this operation which I stress once more would involve nothing like the work to which Mr Hassett's estimate of £50,000 at to-day's prices related. In the circumstances I consider that the Plaintiff would be entitled to an additional decree of £2,500 under this heading making a total thereunder of £3,500.

63. Mr. Keleghan on this topic said that water came down from the road to the back of his son's house. His son-in-law John Connell said that the run-off water would become apparent after an exceptionally heavy rainfall and that there were problems with drainage. There were none prior to 1992 before the road went in. He had complained to the Plaintiff about the flooding and he will issue proceedings against him depending on the outcome of the present case. There was a draft civil bill in existence. To me he said that the floods occurred about three times a year and would last for two days but he did not ever remember having to remove his horse from the field because of the flooding. Michael Cooke said on this aspect that he saw water running down the road when he visited the lands in January 1998 because the gullies were not capable of taking the water. He said that the absence of soak pits is causing the flooding on the road and the high level of super-imposed material on the landscape area is causing the water to flow into Keleghan's lands. He saw water flowing onto Keleghan's lands but did not photograph it. This was run off, not flooding. He clarified in cross-examination that he was not saying that the water from the road went into Keleghan's lands but rather down to the end of the road to a turning circle.

64. The Defendant said that he never saw flooding on the landscaped area after the tarmac road was put in by Padraic Rhatigan in July 1995 and noted that there was no mention of flooding in correspondence prior to the action and that the first mention of flooding was in the amended Statement of Claim.

65. Brian Whyte, director of Radharc Landscaping, said that he was asked by Padraic Rhatigan in 1996 to install the landscaping in accordance with the planning permission. He did so and has been maintaining the landscaping ever since. He said that the job was working satisfactorily from the drainage point of view. The plants are doing extremely well and the majority need free draining, the inference being that this would not be the case if the landscaped area was causing flooding onto the Keleghan lands.

66. John Mooney, consulting engineer, said that rocks deposited under the road and in the landscaped area were ideal for soakage purposes and operated in effect as one large soak-pit. The first eight days of this case were heard in October and it was resumed at the end of November. In the interim there was an extremely wet period producing particularly heavy rainfall. There was nothing in the evidence to suggest that the gullies installed were having any particular difficulty. He had installed three trial holes and these showed that the water was draining satisfactorily into the soakage material. He saw a flash of water on the east of Keleghan's land but that was unrelated to any flooding on the site. In particular he noted that there was a rise or "hill" between the landscaped area and the part of Keleghan's lands where the water was seen so that the water would have had to travel uphill if it came from the rocks under the landscaping. Because of the large amount of rocks under the road and landscaped area there was no need to bring soak-pits below the level of the soil as claimed by the Plaintiff. He would agree that this would be appropriate if there were only six standard soak-pits but given the vast amount of rocks available this was not necessary. He was satisfied also that this view was proved correct in practice. After one of the wettest periods there was no evidence of flooding on the Keleghan/Connell lands.

67. Photographs taken in the interim by the Plaintiff were put to him and he said that one showed only a stream which was on the ordnance survey map and the others showed ponding or flashes of water on the far side of a hill between the landscaped area and the water demonstrating that the water was not flooding caused by the landscaping material. The photographs showing the gullies full of water demonstrated only that they were not maintained. Mr. Mooney explained to me that the rockfill actually in place was ideal for percolation purposes. The larger rocks produced larger voids which was what one required to achieve good soakage. He was satisfied that the water was draining vertically into the soil and not travelling horizontally towards the boundary wall. He referred to standard publications, including one by the National Roads Authority of this country which referred to "large broken" pieces as suitable for percolation areas.

68. One of the photographs produced by the Plaintiff showing ponding of water adjoining the roads was demonstrated by the Defendant to be a photograph of a shallow layer of water on a thin layer of concrete-like material underlying it. In response to this the Plaintiff claimed that the photograph was merely demonstrating a problem with or near the gully and was not intended to support his allegation of flooding. In my note of the Plaintiff's evidence in relation to this photograph (photograph "I") the Plaintiff said that the photograph was taken with a flashlight at midnight to show ground water behind the kerb, that the gully was totally surcharging and that the water was running on through the cavities to an unlandscaped area. "The substantial area was totally flooded" . Subsequently, evidence was given by John Mulqueen on hydrological aspects and he said that the presence of concrete beneath this shallow layer of water was apparent to him so that he tested it by putting his finger into the water and establishing that indeed it was concrete just below the surface. He accepted, however, that the Defendant had requested him to do this.

69. I am left with a distinctly uneasy feeling about the Plaintiff's presentation of photographic evidence. In the first place objectively it is grossly misleading to present a photograph of a sheet of water (some 12 feet by 10 feet) as indicative of a gully problem or, as I think initially intended by the Plaintiff, a flooding problem where "the substantial area was totally flooded" , when in fact the water is simply a shallow sheet of water lying on a thin concrete-like impervious substance preventing its natural subsidence; secondly, the Plaintiff invited Mr Connell to go up and have a look at this water and he explained that he was sitting having coffee with Mr Connell when he asked him to do this; Mr. Connell is the man who has threatened to sue the Plaintiff depending on the outcome of the present case and on the interpretation of this piece of evidence now contended for by the Plaintiff, it had nothing to do with the flooding on Connell's lands. Why therefore did the Plaintiff invite Mr. Connell to inspect it? Thirdly, Mr. Mulqueen gave evidence that he first saw this water at night by the light of two flashlights and two car lights and became aware at once that it was underlain by the concrete-like material. True it is that the Plaintiff also first saw this water at night, probably by the light of one flashlamp only, and also Mr. Mulqueen accepted that he was asked to stick his finger into it by the Defendant. On the other hand, the Plaintiff knew the area well and this whole incident occurred while the case was going on, when the issues were crystal clear and there can be little doubt but that the Plaintiff knew the road and the operation of the road and the gullies intimately not only for the purpose of providing and maintaining the services as was his duty as developer under the planning permission but also in the context of the litigation. Furthermore, it came out in cross-examination that the location of this water was some 116 feet away from the spot indicated on the map accompanying these photographs. All in all, I am left with the conclusion that this is one of a number of worrying aspects in the Plaintiff's evidence.

70. In cross-examination the Plaintiff accepted that a video taken on the 31st October 1998 (which was preceded by twelve days of exceptionally heavy rainfall amounting to between eight and nine millimetres average fall per day) did not show any water ponding or flooding in the Keleghan/Connell lands.

71. The evidence of John Mulqueen, hydrologist, on this aspect can be summarised by saying that he found no evidence of flooding in Keleghan's lands despite visiting these on five occasions in October and November 1998 which was an extremely wet period. There was no evidence of ponding although he found some water lying in areas which had been compressed by cattle hooves and there was some temporary water-logging there. This had nothing to so with flooding caused by the fill deposited by the Defendant. Furthermore, he was satisfied that the water-table level was below the base of the wall and this meant that water percolating down would be attracted towards that level and not horizontally or laterally towards the wall. The tests taken show that the water level was below the base of the wall. The soil near the base would be soggy which it was not if the water table was at that level: on the contrary, the tests showed the water percolating into the test holes. Again there were no rushes growing in the area: on the contrary they were all "dry land" plants. The soils in the farmland (in the Keleghan/Connell area) are called "podzols" which can only develop in free draining acidic soil-forming materials with deep water tables.

72. Apart from the evidence from witnesses called by the Defendant, I note that the careful evidence given by Michael Cooke, for the Plaintiff, made it clear on cross-examination that the surface water went down the road rather than direct into Keleghan's land.

73. The evidence establishes to my satisfaction that there is no flooding on the Keleghan/Connell lands caused by the rock material deposited by the Defendant. Furthermore, I consider that some of the evidence presented by the Plaintiff in an attempt to establish the contrary was of an extremely dubious character. The objective effect of the evidence and in particular photograph "I" was misleading unless corrected and in circumstances for which I consider the Plaintiff must accept responsibility.

74. I find as a fact that there was no damage to the kerbs to Site 7. The photographic evidence adduced to indicate this site shows kerbs which are undamaged and I accept the evidence on behalf of the Defendant that they were removed to allow the Defendant's vehicles to pass in and out of the site. With regard to the soak away which the Plaintiff says was damaged on this site by the Defendant, I note that this is denied by the Defendant's witnesses. The Plaintiff has not discharged the onus of proof on this aspect to my satisfaction.

75. The relevant planning approval at Condition 7 provides as follows:-

76. The reason for the condition is 'in the interest of road drainage'.

77. The first thing to note is that no dimensions or design criteria are specified. No number of soak-pits is given. In these circumstances, I think it is a reasonable inference to draw that the developer is required to provide a reasonable number of soak-pits to a reasonable design.

78. Condition 2 of the approval requires the developer to submit a landscaping scheme and this was done by the Plaintiff and the scheme shows six gully traps which implies six soak-pits. This drawing was approved by the planning authority as complying with the requirements of Condition 2 which is concerned with landscaping, house plans for individual houses, and the siting, height and floor area of each. It is not directly concerned with the soak-pit issue. Mr. Mooney has given his evidence that he would give a certificate of compliance with the planning permission. He would require only one condition for this certificate, namely, that the manhole rings and lids would be supplied. I accept the evidence on behalf of the Defendant that the rock material is perfectly suitable as soakage medium. I consider that Mr. Mooney would be entitled to give a certificate of substantial compliance with the requirements of the planning permission in the circumstance that an area of 2,400 square metres of suitable soak material is available to receive and absorb the drainage from the road in a context where, as I have construed it, the condition requires a reasonable number of soak-pits to be provided in accordance with Condition 7. Nowhere in the permission itself is any number of soak-pits referred to and it is only by an indirect route that it can be said that the planning documentation requires or perhaps better "authorises", six soak-pits. In my view, the evidence establishes that what has been provided achieves "substantial compliance" with the requirements of the planning permission and I hold, insofar as the provision of soak-pits is concerned, the planning permission does not require the soak-pits to penetrate below the level of the pre-existing terrain, thereby necessitating the removal of the material deposited by the Defendant and superimposed by landscaping provided by Mr. Rattigan.

79. With regard to the landscaping itself (as distinct from the underlying rock material), I hold that the landscaping scheme submitted by the Plaintiff is the only scheme approved by the planning authority. A subsequent scheme (which is the one which has actually been implemented on site) was indeed submitted, coincidentally by Mr. Mooney's firm, on behalf of Padraic Rhatigan and was "approved" by the planning authority at a time when they considered that Mr. Mooney's client had a sufficient interest to submit a scheme for compliance with Condition 2 of the approval. Subsequently, the planning officials became aware that the latter landscaping scheme was not submitted by the developer (namely the Plaintiff) and on that basis, and that basis alone, Mr. Brennan, the planning official, who gave evidence in this case said that he considered that that landscaping scheme was not in fact validly approved in compliance with Condition 2. He said he had no problem with the scheme itself as to its contents, but he regarded it as not an approved scheme in compliance with Condition 2 on the specific and technical basis that it was submitted by a person without sufficient interest. The evidence in the case, insofar as the scheme itself is concerned, satisfies me that it is a perfectly satisfactory scheme. For example, Mr. Michael Cooke, whose evidence was presented in a careful fashion on behalf of the Plaintiff, described it as "quite attractive". The Plaintiff himself had no real objection to it but only to the rock material underlying it. In these circumstances, I am satisfied as a matter of probability that if the Plaintiff chose himself to submit an application as the person with the appropriate interest in the site seeking retention of the existing landscaping scheme, the planning authority would grant such retention.

80. Having already held that the Plaintiff gave the Defendant permission to deposit rock material permanently in the landscaped area, in the area under the road and on Site 7, it is not necessary for me to decide this issue between the parties because I agree with the submission made on behalf of the Defendant that, once the material was deposited with the permission of and at the direction of the Plaintiff (which I have held to be the case), then the Plaintiff cannot be blamed for any accident that the Defendant might have had on these rocks. However, I consider that for completeness sake I should deal with this matter as it seems to me, like most of the issues in this case, to be a matter of fact.

81. I have had the benefit of the evidence of Noel Elwood, who indicated by reference to a large laminated photograph, an area where he said he deposited fill at a time after the Defendant had finished his depositing but before the Plaintiff's accident. Noel Elwood's material was deposited after he received the Section 31 Notice, requiring him to reduce the level of the rocks on his site (Site No. 3). This Section 31 Notice was instigated by the Plaintiff. Mr. Elwood indicated by reference to the laminated photograph that he had deposited fill material in an area which I am satisfied included the area indicated by the Plaintiff as the point where he fell. In regard to this particular location the Defendant has criticised the photographs and the point on the site map indicated by the Plaintiff as the precise location of his accident. I have heard this criticism but I am not particularly impressed with it. I think the indications in the photographs identified by the Plaintiff are not particularly precise but I do not think that they are necessarily in mutual conflict or in conflict with the area indicated in the map supplied by the Plaintiff in response to a request for particulars.

82. I am satisfied, however, that the Plaintiff has not established as a matter of probability that he fell on rocks which were deposited by the Defendant. I think it is more probable that he fell on rocks which were deposited by Mr Elwood or possibly by some third party. In these circumstances, I hold that the Plaintiff has failed to establish to the appropriate standard of proof required in a civil action, that he fell on rocks deposited by the Plaintiff. That being the case, I do not propose to consider whether in the circumstances the Plaintiff was solely responsible in negligence for his own accident or whether he was guilty of contributory negligence. I merely note, that the Plaintiff accepted that he went looking for his horses who had escaped in this area at night, in the dark with the aid of a flashlight when he was aware that there was an alternative, albeit more circuitous, route to the Keleghan field where he had seen by the light of his torch the eyes of the animals shining in the dark. His unfortunate accident occurred in March of 1993 at a time when the Plaintiff clearly knew the terrain and knew, as he himself accepted in evidence, that there was a risk but decided to take it.

83. Moreover, it is not necessary for me to consider the further point raised by the Defendant that the Plaintiff had, in any event, indemnified the Defendant against all claims arising out of the non-maintenance of the open areas, including the claim of the Plaintiff himself. In the result the Plaintiff is entitled to a decree of £3,500.00.