Electricity Supply Board and Eirgrid Plc v Killross Properties Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 18 April 2018
• Neutral Citation: [2018] IESC 22
• Docket Number: [S.C. Nos. 32 & 40 of 2017],[Record Nos. 32/17 and 40/17]
• Court: Supreme Court
• Date: 18 April 2018

[2018] IESC 22

THE SUPREME COURT

Finlay Geoghegan J.

The Chief Justice

O'Donnell Donal J.

MacMenamin J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Record Nos. 32/17 and 40/17]

Between/

Electricity Supply Board

and

Eirgrid plc

Plaintiffs/Appellants

and

Killross Properties Limited

Defendants/Respondents

Statutory interpretation – Electricity (Supply) Act 1927 – Chief executive – Appellants seeking to appeal against an order of the Court of Appeal setting aside an order of the High Court – Whether s. 9 of the Electricity (Supply) Act 1927 permits the authorisation of the appellant of its chief executive to exercise its power under that section

Facts: The appellants, the Electricity Supply Board (ESB) and Eirgrid plc, sought certain declarations, injunctions and orders restraining the respondents, Killross Properties Ltd, from interfering with their access to the lands in question. The High Court made restraining orders, granted injunctions, and made declarations in favour of the appellants, entitling them to enter the lands of Killross, including in exercise of the ESB's powers pursuant to s. 53 of the Electricity (Supply) Act 1927. The appellants and the respondents appealed and cross appealed to the Supreme Court from an order of the Court of Appeal of 21st December 2016 setting aside the order of the High Court and granting in lieu thereof an order of certiorari quashing the notice served by ESB on Killross on or about the 28th June, 2013 pursuant to s. 53(3) of the 1927 Act and remitting the issue of damages to the High Court. The Supreme Court granted leave to the appellants to pursue the following issues on appeal: (a) whether s. 9 of the 1927 Act and/or that Act as a whole permits the authorisation of the Board of its chief executive to exercise its power under that section; and (b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal. The Supreme Court granted leave to the respondents to pursue the following issue by way of cross appeal: whether, in all the circumstances of the case and having regard to the evidence, ESB was precluded from exercising its power under s. 53 of the 1927 Act, as a result of an infrastructure agreement with EirGrid and having regard to the respective licences granted to both ESB and EirGrid by the Commission for Energy Regulation under s. 14(1)(f) of the Electricity Regulation Act 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation 2000 transposing the internal market in electricity directives.

Held by Finlay Geoghegan J that, having applied established principles of statutory interpretation, s.9 does permit the Board to authorise its Chief Executive to exercise its power under that section or to exercise its s. 9 power through or by its chief executive once he is so authorised by the Board. Finlay Geoghegan J held that the Court of Appeal was correct in determining that the performance of this project by the ESB in accordance with the current regulatory framework and the Infrastructure Agreement did not either constitute an unlawful delegation of its statutory power pursuant to s. 53 or an abdication of its discretion to use that statutory power to either Eirgrid or ESB Networks Ltd; it remained the ESB which was using its statutory power pursuant to s. 53(1) and for that purpose serving the notice pursuant to s.53(3).

Finlay Geoghegan J held that the appeal should be allowed and the cross appeal dismissed. She held that so much of the order of the Court of Appeal as allowed, in part, the appeal from the High Court and set aside the order of the High Court which granted an order of certiorari of the notice dated the 28th June, 2013 should be vacated and in lieu thereof the appeal from the High Court dismissed in its entirety. The Court would hear the parties on any variation sought to the costs orders made by the Court of Appeal which followed from this judgment and in relation to costs in the Court.

Appeal allowed.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on 18th day of April, 2018

1 This is an appeal and cross appeal from an order of the Court of Appeal (Peart J., Hogan J., and Cregan J.) of 21st December 2016. The relevant substantive order to which the appeal and cross appeal relate is an order setting aside the order of the High Court and granting in lieu thereof an order of certiorari quashing the notice served by the Electricity Supply Board ('ESB') on Killross Properties Limited ('Killross') on or about the 28th June, 2013 pursuant to s.53(3) of the Electricity (Supply) Act, 1927 ('1927 Act') as amended and remitting the issue of damages to the High Court.

2 In the High Court there had been several related proceedings between the parties. Ultimately the High Court order, which was the subject of appeal to the Court of Appeal, was made pursuant to a written judgment delivered by Hedigan J. on 19th December, 2014, in these proceedings and a related judicial review application brought by Killross against ESB. In the plenary proceedings in the High Court the plaintiffs had sought certain declarations and injunctions and orders restraining Killross from interfering with their access to the lands in question. The High Court made restraining orders, granted injunctions, and made declarations in favour of the plaintiffs of their entitlement to enter the lands of Killross, including in exercise of the ESB's powers pursuant to s.53 of the 1927 Act, as amended.

3 The order of the Court of Appeal was made for the reasons set out in written judgments of Hogan J. and Cregan J. delivered on 11th July, 2016. Each judgment concerns discreet issues, and the issues in respect of which leave was granted by this Court were determined in the judgment of Cregan J., with whom the other members of the court concurred.

Factual Background

4 The immediate cause of these proceedings (and the related judicial review proceedings) was the notice served by ESB on Killross pursuant to s.53(3) of the 1927 Act on 28th June, 2013. The notice was on ESB headed notepaper, took the form of a letter to a Mr. McKenna the Company Secretary of Killross, and was signed by Eoin Waldron, described as 'Authorised Officer.' The notice informed Killross that the ESB pursuant to powers conferred by s.53 of the 1927 Act, as amended, intended to carry out certain temporary works across Killross's lands as part of the repair and alteration works being carried out to existing specified 110kV lines from Maynooth. The lands of Killross over which the existing lines crossed were identified, as were the intended nature of the temporary works and the position and manner in which they were to be carried out. It is not in dispute that the temporary works were to divert electricity on a temporary alternative route for the duration of the proposed upgrade works on the existing 110kV transmission lines.

5 Mr. Waldron's authorisation to issue and serve the notice pursuant to s.53 of the 1927 Act is a document signed by a Mr. Jerry O'Sullivan, described as 'Executive Director Networks', and addressed to the Chief Executive of ESB. It is headed 'Authorisation to Sign Statutory Wayleave and Tree Cutting Notices' and is dated 3rd September, 2012. It states:-

'Board decision No. 7(b) of 13th November 1973 authorised the Chief Executive to delegate to nominated officers the authority to exercise the powers and functions of the Board under Section 53(3) and Section (3) [sic] and Section 98(2) of the Electricity Supply Act 1927 i.e. to sign the above noticed [sic] on behalf of the Board.

The staff listed in the attached Appendix have been nominated to exercise the functions.

Your approval is requested to the authorisation of these staff to sign the notices.'

6 As appears, it is a document addressed to the Chief Executive (of the ESB) seeking his approval and it is signed as approved by Mr. Pat O'Doherty, Chief Executive of the ESB. Mr. Waldron is one of the members of staff listed in the Appendix. The Board decision of 1973 referred to in the document was not before the courts. The recital of its contents as set out above is not in dispute. It is the 1973 authorisation which the Court of Appeal held to be ultra vires the ESB. The other facts which are relevant, in particular, to the issues on the cross appeal are the changes to the statutory functions and business of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB. This is set out in great detail in the judgment of Cregan J. It suffices for the purposes of the issues before this Court to summarise them as follows.

7 ESB originally had a monopoly on the provision of electricity in the State. It was responsible for generation, supply, transmission and distribution, and also retail sale of goods. Various European Directives - commencing with 96/92/EEC - concerning common rules on the internal market in electricity required liberalisation measures to be taken. The Electricity Regulation Act 1999 ('the 1999 Act') and subsequent Regulations including the European (Internal Market in Electricity) Regulations 2000 (S.I. No. 445/20000 ('the 2000 Regulations'), gave effect to these.

8 The 1999 Act established the Commission of Electricity Regulation as the independent body responsible for regulating the electricity industry in Ireland. It subsequently became the Commission for Energy Regulation and regulates the electricity, natural gas and water industries in Ireland (the 'CER') and is now the Commission for Regulation of Utilities (the 'CRU'). It has overseen subsequent measures for the liberalisation of the Irish electricity market. There are now four relevant functions in relation to each of which the CER had granted licenses at the time of the events giving rise to these proceedings as follows:-

i....