River channel through site, insurance query

Irish Steve

We have a residential property in an urban area in Ashbourne. There is a small stream that runs through the site, most of it in an enclosed pipe, some of it an open blockwork channel 1 mtr wide x 1 mtr deep.

As a result of ongoing long term flooding issues, the local authority are proposing to significantly increase the size of the channel, but their proposal at present is for an open top U channel that will be 2.1 metres wide, by 1.2 metres deep.

I am concerned about the insurance implications of this upgraded channel, in my opinion, it represents a significant risk of injury or death to anyone that has the misfortune to fall into it, especially at times of peak flow, when the flow rate is in excess of 2 mtrs per second. At the end of our site, it will go into a culvert under a road, so a closed pipe section

As it passes through our land, I am assuming that if there were to be an incident leading to a claim, it would be made against our property insurance, so the first question is how do I declare such a channel to the insurers, and what are the likely policy implications of such a channel?

Secondly, we have regular problems with both children and more mature teens taking a short cut through our site at all hours of the day and night, to save having to walk "the long way" home when returning from things like the local night club. They are climbing over a wall or gate to gain such access, so in theory, trespassing. How can I at least take steps to protect us from claims by people who have no right to be there, and that have not used an approved access method to gain such access?

My thinking is that I need to insist that the local authority provides a closed channel for this river, on the basis that it presents an unacceptable health and safety risk at present, but I don't know if I have any precedent or insurance grounds to make such an insistence.

Any pointers, clues or suggestions would be appreciated. This river has been a curse on us for close on 25 years, and the suggested changes might remove the flooding risk, but I can see a very real chance of an unacceptable risk as a result of this change to the structure of the river, given that the end of the new channel will be very close to the road which it will pass under.

I don't want to say no to this plan, but at the same time, I don't want to end up with an insurance nightmare or the risk of a massive claim against us in the future as a result of these changes.

NUTLEY BOY

That is decidedly awkward !

Just a few thoughts.

Has the existence of this feature been declared previously to the insurers ? If not, there has been a possible failure to declare a material fact.

A material fact is one which could influence the mind of a prudent insurance underwriter in deciding whether or not to accept a risk proposed for insurance and, if so, upon what terms and conditions.

Failure to declare a material fact has potentially serious consequences. If a claim arose - especially a big one - insurers could simply repudiate liability under the contract on the basis of non-disclosure of a material fact.

If the insurers are unaware of the existence of the feature and they are now notified of it they could decide to cancel the policy either now or at renewal on the grounds of non-disclosure and or on the basis that the feature is a risk which they are not prepared to underwrite.

By the way, the duty of disclosure revives every year when a policy falls due for renewal. Insurers do not send you out a new proposal form every year at renewal so you are required to inform them of new or altered material facts before renewal date.

As far as other matters go your situation seems to be very unsatisfactory. The occupiers of property owe a duty of care to those who come upon their property and that might extend to include trespassers - believe it or not.

Much depends on the facts of an individual case. If you allow continuous trespass over your property without taking adequate and sufficient steps to stop it, that is capable of being construed as giving implied consent to the presence of the trespassers who may therefore no longer be deemed to be trespassers. Stated more simply, permitting persistent trespassing may create rights for the trespassers.

You can erect the usual notices you see around the place warning people that they are now entering a property within the meaning of the Occupiers' Liability Act of whenever and that you do so at your own risk blah, blah. Not much use in practical terms :mad:

As far as the local authority goes I would be looking at your title deeds to see under what arrangement, if any, the original structure was put in place. There might be some guidance there as to the terms on which you or predecessors in title agreed or consented to the arrangement.

I think that you really do need to see a solicitor to go through this very carefully as you have a complicated problem on your hands. Sorry if this is negative but it needs to be sorted sooner than later.

Be careful that the council do not bind you to accept liability / indemnify them for any claims from the structure as insurers might not cover that either.

Irish Steve

That's interesting, for all the wrong reasons, and it does indeed look as if we're going to have to get some professional advice, which is not helpful, given that we're already under severe pressure financially, the house is effectively valueless right now, and the thought of having to spend yet more money solving a problem we didn't create in the first place is not exactly helpful.

We have taken a number of precautions in the past to deter trespass, things like security fencing, barbed wire, hawthorn bushes, and the appropriate warning signs, so it's very clear that trespass is trespass, and not welcomed, but the possible changes that are about to be proposed will negate the precautions we've taken, and make it a LOT easier for people to get access to the area, and at times of flood level flow, the channel will potentially be dangerous, hence my concern.

The land which the river passes under was sold to us by the developer of the adjacent area after he'd completed all the works, which included piping the river in accordance with the (very limited) guidelines laid down by OPW in 1985, and it's clear that things were a lot less formal in those days.

We really don't need this extra hassle, it's bad enough that the lack of proper planning and supervision of development in this area has caused us the problems we've had, now it's looking like it is about to become a LOT worse, and saying NO to this scheme will only cause us even more problems, as we are fundamental to solving the problem that puts probably 50 houses at risk of flooding.

Oh the joys of trying to deal with the Irish legal and local authority system. Nightmare doesn't even come close

That said, thanks for the reply, it's appreciated.