Electricity Supply Board and Another v Killross Properties Ltd

 
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[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

2013/5552P - Hedigan - High - 19/12/2014 - 2014 18 4934 2014 IEHC 635

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

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 necessary works. The plaintiff asserts, and it was accepted by this Court in the judicial review proceedings, that once the uprate works have been completed, the only transmission lines crossing the defendant's lands will be the pre-existing lines heretofore described, and there will be no alteration to their pre-existing route or supporting structures on the defendant's lands.

13

As set out at para. 7 of the plaintiff's statement of claim, the works involved in the uprate may be broadly divided into three stages. The first stage involves survey works, as both ESB and Eirgrid require to carry out surveys and investigations on site in order to establish and plan the precise nature of the works to be carried out. The second stage involves the ESB restringing lines with new, higher capacity conductor where this can be achieved without the necessity of erecting a temporary line diversion. The third stage comprises the erection of a temporary line diversion, the completion of the restringing works, and the retirement and removal of the temporary line diversion once the restringing works have been completed. The temporary line is being erected to ensure continuity of supply to certain customers. For safety reasons, it is necessary to de-energise a number of lines, which share the one structure, simultaneously. Thus, it is necessary to divert electricity on an alternate route away from this structure for the duration of the restringing works.

14

The initial request for access to the defendant's lands was made on 12 th November, 2012 by Ciaran Hughes of ESB International ("ESBI"). In an e-mail to Lar McKenna, Mr. Hughes advised that ESB Networks intended to carry out works on the defendant's lands at Easton as part of the Maynooth-Ryebrook 110kV uprate works. The request was for access in order to carry out investigations on the foundations of angle structures 25, 26 and 27 to determine whether foundation reinforcement works would be required.

15

Communication ensued between the defendant and staff of ESB Networks, ESB Networks Ltd. and ESB International regarding, inter alia, requests for information on the works, access, the impact of the works on the development plan of the defendant, ESB's policy on mast interference payments and health and safety issues. On 1 st May 2013, Eoin Waldron of ESB Networks sent a survey notice, with accompanying cover letter and map, which stated that the purpose of entering onto the defendant's lands was to survey:

"The route of a temporary diversion to part of the existing Dunfirth-Kinnegad-Rinawade 110kV line on the Company's lands and of cutting any tree, shrub or hedge which obstructs or interferes with the survey. The temporary diversion is required only as part of the repair and alteration works to the existing Maynooth-Ryebrook 110kV line and for the duration of these works."

16

The present proceedings were instituted by the plaintiff on 13 th May, 2013 in order to restrain the defendant from preventing the plaintiffs securing access to the defendant's lands for the purposes of carrying out the necessary works (including surveys) associated with the uprate...

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