Electricity Supply Board and Another v Killross Properties Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] IEHC 635
• Court: High Court
• Date: 19 December 2014

[2014] IEHC 635

THE HIGH COURT

[No. 5552 P./2013]

Electricity Supply Board (ESB) & Eirgrid Plc v Killross Properties Ltd

No Redaction Needed

BETWEEN

ELECTRICITY SUPPLY BOARD AND EIRGRID PLC

PLAINTIFFS

AND

KILLROSS PROPERTIES LIMITED

DEFENDANT

ROSSMORE PROPERTIES LTD & KILLROSS PROPERTIES LTD v BORD PLEANALA & ORS UNREP HEDIGAN 24.11.2014 2014 IEHC 557

ELECTRICITY SUPPLY BOARD (ESB) & EIRGRID PLC v KILLROSS PROPERTIES LTD UNREP HEDIGAN 19.12.2014 2014 IEHC 635

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 PART 4

ELECTRICITY REGULATION ACT 1999 S14(1)(E)

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 REG 32

ELECTRICITY (SUPPLY) ACT 1927 S53

PLANNING & DEVELOPMENT ACT 2000 S160

ELECTRICITY (SUPPLY) ACT 1927 S20(4)

ELECTRICITY (SUPPLY) ACT 1927 S53(9)

ELECTRICITY (SUPPLY) ACT 1927 S53(5)

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 REG 8(2)

ELECTRICITY (SUPPLY) ACT 1927 S53(3)

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

ELECTRICITY (SUPPLY) ACT 1927 S53(1)

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 REG 2(1)

ELECTRICITY (SUPPLY) ACT 1927 S9

ELECTRICITY SUPPLY BOARD v GORMLEY 1985 IR 129 1985 ILRM 494

COONEY v COONEY UNREP FEENEY 27/05/2009 [TRANSCRIPT NOT AVAILABLE]

O'BRIEN v BORD NA MONA & AG 1983 IR 255 1983 ILRM 314

ELECTRICITY SUPPLY BOARD (ESB) v HARRINGTON UNREP SUPREME 9.5.2002 2002/10/2366 2002 IESC 38

ELECTRICITY SUPPLY BOARD (ESB) v BURKE UNREP CLARKE 23.5.2006 2006/22/4653 2006 IEHC 214

GALLAGHER v REVENUE COMMISSIONERS (NO 1) 1991 2 IR 370 1991 ILRM 632 1991/3/548

DOUPE v LIMERICK CO COUNCIL & ANOR 1981 ILRM 456

ELECTRICITY SUPPLY BOARD (ESB) & EIRGRID PLC v RODDY UNREP LAFFOY 23.4.2010 2010/18/4394 2010 IEHC 158

ELECTRICITY (SUPPLY) ACT 1927 S98

ELECTRICITY (SUPPLY) ACT 1927 S98(3)

ELECTRICITY (SUPPLY) ACT 1927 S98(2)

LAND & CONVEYANCING LAW REFORM ACT 2009 S11(4)(J)

LAND & CONVEYANCING LAW REFORM ACT 2009 S11(4)(K)

CONSTITUTION ART 40.3

TURF DEVELOPMENT ACT 1946 S29

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS 2011 4 IR 1 2011 IESC 14

ELECTRICITY (SUPPLY) ACT 1927 S53(4)

ELECTRICITY (SUPPLY) ACT 1927 S51(1)

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE (NO 2) 1991 2 IR 93

WOOLF & ORS DE SMITH'S JUDICIAL REVIEW 7ED 2013 PARA 7.009

ELECTRICITY (SUPPLY) ACT 1927 S52(5)

Planning and Development – Plenary action – Wayleave notice – Plaintiff seeking injunctive relief restraining the defendant from preventing the plaintiff entrance into the defendant”s lands – Whether fair procedures were afforded the defendant

Facts: The first plaintiff, Electricity Supply Board (ESB), is a statutory corporation and the owner of the electricity distribution and transmission systems in the State. Its functions include the maintenance of the electricity transmission system. The second plaintiff, Eirgrid plc, is the independent electricity Transmission System Operator (TSO) for Ireland. The defendant, Killross Properties Ltd, is a limited liability company and the registered owners of lands on which part of a proposed development consisting of the construction of double current 110kV electricity transmission lines is sought to be constructed. The transmission lines on shared structures were present on the lands at the date of the defendant”s purchase of the lands. In 2012, Eirgrid instructed ESB to upgrade or uprate these transmission lines, including parts of the said lines that crossed the defendant”s lands. The initial request for access to the defendant”s lands was made in November, 2012. The present proceedings were instituted by the plaintiff in May, 2013 in order to restrain the defendant from preventing the plaintiffs securing access to the defendant”s lands. The defendant consented to the making of an interlocutory injunction order Surveys were subsequently carried out by ESB and Eirgrid and ESB ascertained the precise nature of the works which would be required as part of the second stage. In June 2013, ESB served a formal notice on the defendant pursuant to s. 53 of the Electricity (Supply) Act 1927. The wayleave notice informed the defendant that ESB [2014] IEHC 635 intended to carry out temporary works, including a temporary line diversion. In July, 2013, the defendant wrote to ESB stating that the lands were currently occupied by Mr McKenna as tenant. The defendant did not consent to ESB entering onto the lands to carry out the work. The High Court was asked to consider: whether ESB and Eirgrid were entitled to carry out the survey works on the defendant”s lands, pursuant to s. 20(4) of the 1927 Act; whether ESB and Eirgrid were entitled to carry out the restringing works to the existing lines pursuant to s. 53(9); whether the notice was served by ESB pursuant to its statutory functions under s. 53; whether there has been a breach of fair procedures by ESB; and whether the notice is valid on its face and complies with requirements under s. 53(5).

Held by Hedigan J that the power to carry out the survey required is shared by ESB and Eirgrid, having considered Regulation 8(2) of the European Communities (Internal Market in Electricity) Regulations 2000. Hedigan J held that the ESB and its authorised undertaker, Eirgrid, have quite plainly, under the statutory provision, the right to enter the defendant”s lands in order to alter the lines as they have determined is necessary; in the circumstances contemplated by s. 53(9), where urgent repair is necessary, no hearing for or conversation with the land owner is even required. Hedigan J held that no pre-existing rights of the defendant will be affected. The seven days notice was held to be sufficient, and absent the landowner”s consent, the only right it had was compensation.

Hedigan J held that the plaintiffs have the right to enter and remain upon the defendant”s land and there to make such enquiries, investigations, examinations, repairs or alterations as they think proper in connection with the project. Hedigan J held that they may also, for the purposes of the project, erect on the defendant”s lands a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110 kV line. They were thus entitled to the orders and declarations sought in their statement of claim.

Application granted.

1 JUDGMENT of Mr. Justice Hedigan delivered on the 19th December, 2014

2 1. The present case deals with the third and fourth of four sets of related proceedings before the Court as follows:

3 (i) Rossmore Properties Ltd. and Killross Properties Ltd. v. An Bord Pleanála [2014 No. 320 J.R.];

4 (ii) Killross Properties Ltd. v. ESB and Eirgrid plc. [2013 No. M.C.A.];

5 (iii) ESB and Eirgrid plc. v. Killross Properties Ltd. [2013 No. 5552 P.] and

6 (iv) Killross Properties Ltd. v. ESB [2013 No. 698 J.R.].

7 This Court gave judgment in the first two cases on 28 ^th August, 2014. It has been agreed between the parties to amalgamate the third and fourth proceedings, comprising the plenary action and the judicial review of the s. 53 wayleave notice, and these now fall to be determined by this Court.

2. The Parties

8 The first plaintiff is a statutory corporation which was incorporated by the Electricity (Supply) Act, 1927, as amended ("the 1927 Act"). ESB is the owner of the electricity distribution system and the electricity transmission system in the State. Pursuant to Part 4 of the European Communities (Internal Market in Electricity) Regulations, 2000 ( S.I. No. 445 of 2000), as amended, its functions include the maintenance of the electricity transmission system.

9 The second plaintiff is the independent electricity Transmission System Operator ("TSO") for Ireland under a licence issued by the Commission for Energy Regulation pursuant to s. 14(l)(e) of the Electricity Regulation Act 1999, as inserted by Regulation 32 of S.I. No. 445 of 2000.

10 The defendant is a limited liability company with a registered address at Unit 12, Block C, M4 Interchange Park, Celbridge, Co. Kildare and is the registered owners of lands on which part of a proposed development consisting of the construction of double current 110kV electricity transmission line is sought to be constructed. The defendant is the registered owner of lands located at Collinstown, Leixlip, Co. Kildare, as comprised within Folios 43406F and 43408F of the Register of Freeholders County Kildare.

3. The Factual Background

11 In the related judicial review proceedings, Rossmore Properties Ltd. & Anor. v. An Bord Pleanala & Ors. (2014 No. 320 J.R.), where judgment was given by this Court on 28 ^th August, 2014, the extent of the uprate works and their location are set out in detail. The defendant purchased the relevant lands in and around 18 ^th July, 2007. The 110kV electric transmission lines on shared structures, in respect of which the plaintiffs wish to carry out the uprate works, were present on the lands at the date of purchase. These lines are the Maynooth-Ryebrook 110kV line, the Maynooth- Rinawade 110kV line and the Dunfirth-Kinnegad-Rinawade 110kV line. The lands are currently in agricultural use although zoning for a town centre development was adopted by Kildare County Council on 25 ^th January 2010.

12 In or about 2012, Eirgrid instructed ESB to upgrade or uprate these transmission lines, including parts of the said lines that crossed the defendant's lands, by replacing the existing conductor with new higher capacity conductor. On foot of this instruction, ESB designed and planned the uprate works and the uprate was scheduled to be carried out during the period from early summer 2013 until autumn 2013 and Eirgrid planned, scheduled and granted to ESB certain outages of the said electricity lines during this period to facilitate the...