Electricity Supply Board & Eirgrid Plc v Commins

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 22 July 2011
• Neutral Citation: [2011] IEHC 316
• Court: High Court
• Date: 22 July 2011

[2011] IEHC 316

THE HIGH COURT

[No. 6062P/2011]

Electricity Supply Board (ESB) & Eirgrid PLC v Commins

BETWEEN

ELECTRICITY SUPPLY BOARD AND EIRGRID PLC

PLAINTIFFS

AND

JOHN COMMINS

DEFENDANT

ELECTRICITY (SUPPLY) ACT 1927 S53(9)

ELECTRICITY (SUPPLY) ACT 1927 S20(4)

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

ELECTRICITY (SUPPLY) ACT 1927 S53

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

ESB v BURKE & ORS UNREP CLARKE 23.5.2006 2006/22/4653 2006 IEHC 214

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

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 REG 34

ELECTRICITY REGULATION ACT 1999 S14(1)(E)

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 REG 8(1)

ELECTRICITY SUPPLY BOARD (ESB) v GORMLEY 1985 IR 129

LINGHAM v HEALTH SERVICE EXECUTIVE (HSE) 2006 17 ELR 137 2005/36/7565 2005 IESC 89

INJUNCTIONS LAW

Interlocutory injunction

Land - Entitlement to enter - Injunction restraining prevention of plaintiffs entering lands - Entitlement of second plaintiff to enter to inspect, monitor and approve construction - Defect in planning permission - Initial trespass - Lack of opportunity to participate in planning process - Damages - Balance of convenience - Whether planning permission invalid - Whether strong case likely to succeed - Whether plaintiffs entitled to enter land - Whether infringement of constitutional rights - Whether damages adequate remedy - ESB v Burke [2006] IEHC 214, (Unrep, Clarke J, 23/5/2006); ESB v Roddy [2010] IEHC 158, (Unrep, Laffoy J, 23/4/2010); ESB v Gormley [1985] IR 129 and Maha Lingham v HSE [2006] 17 ELR 137 considered - Electricity (Supply) Act 1927 (No 27), ss 20(4) and 53(9) - Electricity (Supply) (Amendment) Act 1985 (No 6) - Acquisition of Land (Assessment of Compensation) Act 1919 (c 57) - Planning and Development Act 2000 (No 30), s 50 - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Electricity Regulation Act 1999 (No 23), s 14(1)(e) - European Communities (Internal Market in Electricity) Regulations 2000 (SI 445/2000), regs 8 and 34 - Injunction granted (2011/6062P - Laffoy J - 22/7/2011) [2011] IEHC 316

Electricity Supply Board v Commins

1 Judgment of Miss Justice Laffoy delivered on 22nd day of July, 2011.

1. The application

2 2 1.1 On this application for an interlocutory injunction the following primary reliefs are claimed:

3 (a) an injunction restraining the defendant from obstructing or preventing the first plaintiff (ESB) from entering on and remaining on the defendant's lands, being the lands registered on Folio 8736 of the Register of Freeholders, County Galway, for the purposes of erecting a 110 kV overhead electric line thereon in accordance with its statutory powers under s. 53(9) of the Electricity (Supply) Act 1927 (the Act of 1927), as amended; and

4 (b) an order restraining the defendant from preventing the plaintiffs or either of them from entering on the defendant's said lands and making such inquiries, investigations and examinations as they think proper relating to the 110 kV line in question, which is known as the Dalton-Galway 110 kV loop line, and, in particular, the construction thereof, and the monitoring, approval and inspection of the said construction pursuant to -

5 (i) s. 20(4) of the Act of 1927, and

6 (ii) Regulation 8(2) of the European Communities (Internal Market in Electricity) Regulations 2000 ( S.I. No. 445/2000) (the Regulations)

7 for the purpose of the exercise or performance of the powers and functions conferred on the plaintiffs by the Act of 1927, as amended, and/or the Regulations, as amended.

8 The plaintiffs also seek ancillary orders restraining the defendant from interfering with the works carried out by the ESB on the defendant's lands and directing the defendant to unlock all gates and remove all barriers and obstacles which are blocking the plaintiffs' access to the said lands.

2. Factual background

9 2 2.1 On 12 ^th June, 2006 An Bord Pleanála, on appeal, granted planning permission for the construction of the Dalton-Galway loop line. On 7 ^th June, 2011 Galway County Council granted an extension of the appropriate period of the above planning permission to 6 ^th June, 2016.

10 3 2.2 The Dalton-Galway loop line passes over the defendant's lands registered on Folio 8736 County Galway. The ESB requires to construct one double wood poleset structure on the lands, from which three continuous wires will be suspended by insulators, with two earth wires located on the top of the structure.

11 4 2.3 On 6 ^th May, 2010 statutory wayleave notices pursuant to s. 53 of the Act of 1927 were served on Patrick Commins, the father of the defendant, who was then the registered owner of the lands registered on Folio 8736 and on the defendant. The defendant became registered as full owner of the lands registered on Folio 8736 in succession to his father on 26 ^th November, 2010.

12 5 2.4 Unfortunately, due to human error, at the pre-planning application stage in 2004 the lands registered on Folio 8736 were mapped as being the property of an adjoining landowner and that had a number of consequences. One was that the defendant's predecessor, Patrick Commins, was not identified as a person with an interest in land or structure affected by the proposed development on the application for planning permission. Another was that the adjoining landowner was incorrectly served with a wayleave notice on 13 ^th October, 2009 in the belief that she was the owner of the lands registered on Folio 8736, which, in fact, at the time were owned by Patrick Commins. In consequence, on 3 ^rd March, 2010 the ESB entered on the lands registered on Folio 8736 to advance the construction of the Dalton-Galway loop line without having first served a wayleave notice on the owner of the lands. A stone wall was knocked down on the boundary, but that has since been reinstated from the adjoining landowner's property. It is acknowledged that the ESB trespassed on the defendant's property and an apology has been tendered to the defendant for the trespass. As regards the historic trespass, the position of the plaintiffs is that any damage occasioned to the lands by virtue of the trespass was fully reinstated at the time. However, it is acknowledged that, apart from his entitlement to compensation pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919 pursuant to the wayleave notice served on him in May 2010, the defendant, if he wishes, may take proceedings in the civil courts against the plaintiffs for damages for trespass.

3. The bases of the defendant's opposition to entry on the lands

13 2 3.1 The defendant contends that, by reason of the interest of the defendant's...