Dereliction of Duty.
Sunday, January 17th, 2010Today we will deal with matters closer to home and of more significant importance.
I live on a little estate of ten houses and I have written about it with much tenderness in a previous blog Small Town Ireland on 7 January 2010. It was the subject of Planning Approval given by Roscommon County Council, hereinafter called RCC, in June 1999, subject to 17 conditions, some of which were of a general nature, but the following need highlighting:-
No 2 All works on the layout and construction of water mains, sewers, footpaths and roads shall be strictly in accordance with the standards recommended by An Foras Forbartha in its publication Recommendations for Site Development Works for Housing Areas.
No 5 No dwelling house shall be occupied until all services have been provided. In particular the developer shall have completed the following to the satisfaction of the Planning Authority.
a) All sanitary services
b) ESB and Telecom Eireann services
c) Public Lighting
d) Comprehensive Landscaping Plan
No 7 The area proposed as public open space shall be soiled, seeded and planted in accordance with a detailed landscaping scheme to be submitted to the Planning Authority and agreed in writing prior to commencement of development works.
No 8 Connection to the public sewerage system, mains water supply system and means of disposal of surface water shall be made to the satisfaction of the Planning Authority.
No 14 The developer must organize a bond with a bank or insurance company or pay a cash deposit in the sum of £31,000 or €39,361.88 to secure the provision and maintenance, until taken in charge by RCC, of the roads, footpaths and other services.
The works were commenced in July 1999. Elmstar Ltd was the developer and builder, The Architect was Colin Bell and the Engineer responsible for foundations and drainage was Michael Archer. Elmstar’s solicitors were Messrs O’Dowd, Lister, Forde & Co. The properties came on the market in January 2001 when all works were supposed to have been completed to the satisfaction of the Planning Authority. Two local solicitors each bought a property, Mr C. Callan and Mr M. O’Dowd.
On 30 July 2002, 18 months after the works were supposed to have been completed, RCC wrote to O’Dowd, Lister, Forde & Co to say that the bond or deposit mentioned in section 14 of the planning conditions, had not been paid and that Elmstar were in breach of planning and that the matter would have to be addressed within ten days. To my knowledge this bond or deposit remains unpaid and RCC refuse to take charge of the estate. We are now nine years into this saga and worst of all RCC have allowed Elmstar amongst other contracts to build 94 houses at Warren or Drum and 39 houses at Silveroe, on the Frenchpark Road where they were recently in dispute over drainage problems and Elmstar’s non compliance.
Elmstars solicitors wrote to RCC in the summer of 2004 requesting that RCC took charge of the estate. RCC wrote back on 17 September 2004 refusing their request because of various faults on:-
WATER MAIN.
The water main services to the houses because they had been laid at a shallow depth tended to freeze up in cold weather. (In this recent spell of cold weather six of the ten houses had no water for over two weeks). RCC required them to be relaid to a minimum depth of 450mm. (Even this is not good enough in severe weather, Building Regulations state 750mm minimum depth).
FOUL SEWER NETWORK
There were a number of complaints and faults in the system, the main ones being that there was not the correct amount of manholes compared to the planning drawings and the depths of sewer were up about 450 mm from that agreed at planning. This led to lack of concrete protection on top of the pipes which is obviously the cause of the sewer collapsing in places, shown up on a CCTV survey of the system. Also the pipes had not been laid to line and level causing failure and deformation.
STORM SEWER NETWORK
Again plenty of faults amongst which were that the planning conditions allowed for a dual system of sewers but at No 2 the storm water is fed into the foul sewer. The number of manholes are greatly reduced (the planning drawing shows 18 manholes on the two systems, I could only find nine when I checked this morning). There was evidence of damage to the sewer because of decreased depths as the foul system above. The pipeline shoul be constructed of 225mm pipes not the 150mm pipes used. The pipes have not been laid to line and level and there is a 45 degree bend on one line which the survey camera could not navigate round.
On the 28 October 2004, four and half years after the properties came to market, RCC again wrote to Elmstar’s solicitors wanting As Constructed drawings for the ESB layout, the road gulley layout (there was only seven gullies on site instead of the original 13). The surface water sewer to be replaced with pipes of correct diameter. The water main needed more fire hydrants and the turning circles (2 No) were to small and had to be increased to 8m diameter. They also stressed that the onus of certification of compliance rests with the developer and the Site Engineer (presumably Mr Michael Archer.
So that was in 2004 and nothing seems to have happened since then, other than that Mr O’Dowd has moved out along with two others and two new people moved in as well as the sucker that I undoubtedly am.
We were told when buying our house in April 2006 that in Section 7 of our Special Conditions of Sale, condition No 14 of the Planning Permission was in non-compliance. We were not told why or even what it was and both solicitors to the sale Callan & Co and Henry Wynne & Co both passed the can to ourselves to ascertain the problem which seemed strange as Mr Christopher Callan owned one of the houses in question. We thought that as he was living there the problem cannot be great and what do you employ solicitors for anyway?
It is now nine years since these properties hit the market and RCC still refuse to take them over and it is obvious Mr Gallagher of Elmstar will not put right what he is contractually bound to. To my mind both parties have been equally negligent and it appears that Mr Archer should also take some share of the blame. I wonder now what is our legal position if say the foul sewer collapses altogether and we have no drainage system. This, although hypothetical, situation must pour a heap of responsibility on RCC who at the end of the day have a Duty of Care to ensure the public health of all its citizens and whose behaviour in this matter has been truly abysmal.
Another saga in the making. I will keep everybody informed as this problem must be happening everywhere with the recent downturn in fortunes of the bastard sons of the Celtic Tiger.