Electricity Supply Board (Esb) v Harrington

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 09 May 2002
• Neutral Citation: [2002] IESC 38
• Court: Supreme Court
• Docket Number: 46/01
• Date: 09 May 2002

[2002] IESC 38

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

46/01

ELECTRICITY SUPPLY BOARD (ESB) v. HARRINGTON

BETWEEN/

THE ELECTRICITY SUPPLY BOARD

PLAINTIFF/RESPONDENT

and

MARY HARRINGTON AND BRIAN HARRINGTON

DEFENDANTS/APPELLANTS

Synopsis:

PRACTICE AND PROCEDURE

Injunction

Property - Balance of convenience - Policy booklet of Electricity Supply Board - Right to compensation - Whether balance of convenience favoured granting of injunction - Electricity (Supply) Act, 1927 - Electricity (Supply) (Amendment) Act, 1945 - Electricity (Supply) (Amendment) Act, 1985 (46/2001 - Supreme Court - 9/5/2002)

ESB v Harrington

Facts: The defendants were the owners and occupiers of certain lands. The plaintiff had intended to erect an overhead electricity line on the defendants’ land and had exercised its powers to do so under the Electricity Supply Acts. The defendants had opposed the erection of the line and had prevented the plaintiff from carrying out necessary works. The plaintiff had sought and were granted an interlocutory injunction restraining the defendants from interfering with their works. The defendants appealed against the granting of the injunction. The defendants sought to have the dispute heard by the Board of the plaintiff.

Held by the Supreme Court (Denham J delivering judgment; Murray J and McGuinness J agreeing) in dismissing the appeal. There was a fair question to be tried. The relevant legislation was clear that the only rights of the defendants were that of compensation. Ultimately damages would be an adequate remedy for the defendants.

Judgment of

Denham J.

delivered on Thursday the 9th day of May, 2002 .(nemdiss)

1.Appeal

1 This is an appeal by the defendants/appellants, hereinafter referred to as “the defendants”, from the Order of the High Court (O Caoimh J.) made on the 20th February, 2002. The first named defendant is the owner of the lands in question and the second named defendant is the occupier pursuant to a lease.

2.Injunction

2 At issue is an interlocutory injunction granted by the High Court. Application having been made by motion on notice by counsel on behalf of the plaintiff, the High Court made an order as sought by the plaintiff. The High Court ordered that until the trial of the action or further Order the defendants their servants or agents or anyone whosoever be restrained from obstructing or preventing the plaintiff its servants or agents from entering upon the defendants' lands situate at Newtown Farm, Shandrum More, Bantry in the County of Cork pursuant to its power conferred by s. 53(9), Electricity (Supply) Act,1927as amended, for the purpose of erecting a 110 kV overhead electricity line as defined by s. 46, Electricity (Supply) (Amendment) Act,1945.

3.Pending the Determination

3 Against that order of the High Court the defendants have appealed. Originally they brought a motion seeking a stay on the said order pending the appeal, but by consent the appeal was expedited and heard on the 8th March, 2002. Counsel on behalf of the plaintiff indicated that the plaintiff would not proceed with the line pending the determination of this appeal.

4.Plenary Summons

4 The plenary summons in these proceedings seeks the following relief:

5 An injunction restraining the defendants, their servants or agents, or anyone whomsoever from preventing the plaintiff, its servants or agents from entering on the defendants' lands situate at Newtown Farm, Shandrum More, Bantry, County Cork, for the purpose of erecting a 110 kV overhead electricity line across and on the said lands together with a supporting angle mast.

6 1) Damages.

7 2) Further and other relief.

8 3) Costs.

9 Consequently, the relief sought and granted on the motion, the injunction, is substantially the issue in the action.

5.New 110kV EIectricity Line

10 The plaintiffs plan a new 110 kV electricity line to provide what is described as a badly needed voltage injection into the West Cork/Kerry networks, relieving any 38 kV network capacity problems. This new line will greatly improve the quality and security of the electricity supply in the West Cork/Kerry region. It is expected that domestic, commercial and industrial electricity supply requirements will increase at a rate of 6% per annum over the next five years and that the new 110 kV line will be a great benefit to the region.

6.Facts

11 There were a number of affidavits filed and facts disputed. However, some facts are not in issue. On the 16th June, 1999, planning permission was granted by Cork County Council (upheld by An Bord Pleanála on the 1st February, 2000) for the electricity line. That permission allowed for some alteration in the proposed location by agreement with the planning authority prior to the development. It is alleged by the plaintiff and denied by the first named defendant that a Wayleave Notice was served on her on the 19th April, 2000. There were discussions between officials of the plaintiff and the first named defendant about the line in the year 2000. There were discussions between officials of the plaintiff and the second named defendant about the line in December, 2000 and January, 2001. I am satisfied, leaving aside the detail of the discussions, and the disagreement between the deposers of the affidavits filed on some of these details, that in those discussions both defendants were informed of the line and its placement. The second named defendant had raised two concerns, one as to the effect of the location of the line and mast on his proposed equestrian centre, and the second as to health concerns with regard to electromagnetic fields. The second named defendant has applied for and obtained a grant of outline planning permission (which was issued on the 29th August, 2001) for an equestrian development on the lands.

12 It is submitted by the plaintiff that at all times the officials of the plaintiff indicated that it was not possible to move the mast from its present location. Larry Donald, secretary of the plaintiff, deposed in his affidavit sworn on the 8th November, 2001:

13 2 "21. I say and am advised that many discussions have been held with both of the Defendants and their solicitor over the past three and a half years and the impossibility of moving the Board's line and in particular the location of the angle mast has been explained at length. Further, the Board has at all times, both verbally and in writing, assured the Defendants and their solicitor that they will be compensated for any agreed loss arising due to the presence or the building of the line."

3 …

14 23. I say and am advised that the route chosen for this line is the best from an economic, technical and environmental point of view.

15 24. I say and am advised that the building of this line across the first Defendant's land is now a matter of urgency…"

16 Kieran Cogan, a High Voltage Services Engineer of the plaintiff, swore on affidavit on the 8th day of November, 2001. In paragraph 15 he deposed:

"15. I say that an ESB crew attended on the First Named Defendant's land on the 29th of January 2001 and were refused entry by the Second Named Defendant and his brothers. Later that day, I met the Second Named Defendant at the first Defendant's home. He stated that he did not accept that the development could co-exist with the line. I stated that in this instance the line could not be raised or altered - in the event of an impact between the line and the proposed development. I also pointed out as there was as yet no Planning Permission for the Equestrian development, the Board could only guarantee that the Defendant would be compensated for any loss arising to him if the Equestrian Centre was impacted by the presence of the line. I also pointed out that, in accordance with the ESB Acts, any dispute regarding the amount of such compensation could be adjudicated upon by the property arbitrator. In the meantime, I stated that the Board would reluctantly use its statutory powers to erect the line. I drew the second named Defendant's attention to the Board'sPolicy Towards Landowners in respect of overhead lines “which guarantees compensation if a development is impacted by a line”...."

17 The second named defendant filed two affidavits in the matter. He makes it clear that he wishes to have a hearing by the Board of the plaintiff subsequent to the serving of the Wayleave Notices on the 31st August, 2001. In his affidavit sworn on the 8th December, 2001, the second named defendants deposed:

"36. I say that at all material times I am not opposed to the routing of a line across my lands and all I seek is a minor modification to the route whereby it would be altered in the order of 50 to 60 metres or so to move away from the proposed equestrian centre which I intend to develop. I say that this is not unreasonable but I say that throughout the affidavit the plaintiff contends that it is refusing even to consider moving the line and that it must be located to precisely where it intends it to be, notwithstanding that the planning permission confers upon them an express power to move it and seek only informally, the consent of the Local Authority and that it does not require a new application."

18 The second named defendant is seeking a hearing by the Board of the plaintiff. He stated in his affidavit sworn on the 15th February, 2002, paragraph 12:

"…I am not seeking in any way to frustrate the Plaintiffs in the construction of this line across my land but only ask that it be modified in the interest of allowing my development for which I have permission to construct, which permission was granted subsequent to that of the Plaintiffs in this case, to proceed. I say that indeed I seek even less than that, which is the opportunity to make appropriate submissions to the Board of the Respondent which has been represented is available to me but which facility has been consistently...