Electricity Supply Board v Good and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Brian Murray,Mr. Justice Woulfe
• Judgment Date: 05 June 2025
• Neutral Citation: [2025] IESC 27
• Docket Number: Supreme Court Appeal Numbers: S:AP:IE:2023:000058

Between

Electricity Supply Board

Respondent/Cross-Appellant

and

Paul Good

Respondent

and

Peter O'Reilly and Rose O'Reilly

Appellants/Cross Appeal Respondents/Notice Parties

[2025] IESC 27

O'Donnell C.J.

Dunne J.

Woulfe J.

Murray J.

Donnelly J.

Supreme Court Appeal Numbers: S:AP:IE:2023:000058

High Court Record Number: 2021/741 JR

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Compensation – Depreciation – Electricity (Supply) Act 1927 s. 53 – Appellants appealing from a High Court decision on the question arising from the extent of the compensation to which they were entitled – Whether the respondent erred in awarding compensation to reflect the rights provided for in s. 53(9) of the Electricity (Supply) Act 1927

Facts: The appellants/cross appeal respondents/notice parties, the O’Reillys, said that when an electric line and supporting poles and pylons were placed, respectively, above and on lands of theirs, they were entitled to be paid sums reflecting more than just the impact on the value of the particular strip traversed by the line or area occupied by the poles or pylons supporting the line (together with consequent disturbance). They said that they were also entitled to compensation for the loss of value of house sites on the holding across which the lines travelled, and that they were entitled to be compensated for a general loss of value to that holding. This was what they labelled ‘injurious affection’. The respondent/cross-appellant, Electricity Supply Board (ESB), disputed that they had any such entitlement. The respondent, Mr Good (the Arbitrator), a Property Arbitrator appointed pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919, agreed that the O’Reillys were entitled to compensation of that kind. ESB sought relief by way of judicial review of that decision. The High Court (Heslin J) found that the Arbitrator erred in so finding: [2023] IEHC 83. Heslin J also found, contrary to another ground of review urged by ESB, that the Arbitrator had not breached its rights to fair procedures in awarding compensation on the basis and in the manner that he did. The Supreme Court granted leave to the O’Reillys to appeal the decision of Heslin J on the question arising from the extent of the compensation to which the O’Reillys were entitled, also granting ESB leave to cross appeal the decision of the High Court on the fair procedures issue.

Held by Murray J that: (i) the trial judge was in error if he found that the 1919 Act operated in any way to preclude a claimant from seeking compensation for what has been termed ‘injurious affection’, but which Murray J referred to as depreciation to the value of their holding caused by the presence on the O’Reillys’ lands of the electric line and supporting poles and pylons; (ii) the trial judge was correct to conclude that the Arbitrator had erred when he fixed compensation for anticipated exercise of the power of re-entry as the compensation enabled in respect of the powers provided for in s. 53(9) of the Electricity (Supply) Act 1927 arises - on the plain wording of the relevant provisions - when the power to enter is exercised; and (iii) the trial judge was right to dismiss ESB’s cross-appeal as the Arbitrator was fully entitled to decide to admit the new particulars delivered by the O’Reillys and, in circumstances where ESB could have - but did not - applied to adjourn the proceedings or seek to put in an increased offer, there was no breach of its rights to fair procedures thus arising.

Murray J allowed the O’Reillys’ appeal insofar as the trial judge erred in finding that compensation under s. 53(5) of the 1927 Act did not encompass compensation for depreciation in the value of the entire land holding the subject of the burdensome rights provided for by s. 53 caused by the imposition of those rights. Murray J dismissed the O’Reillys’ appeal against that part of the High Court decision that ruled that the Arbitrator had erred in awarding compensation to reflect the rights provided for in s. 53(9). Murray J dismissed ESB’s cross-appeal.

Appeal allowed in part. Cross-appeal dismissed.

JUDGMENT of Mr. Justice Brian Murray delivered on the 5 th of June 2025

This appeal

1 . Sometimes the law becomes a prisoner of its own language. In this case the culprit is ‘ injurious affection’, a nineteenth century description of ‘ depreciation’ that has been prevalent in legislation enabling compensation following the compulsory purchase of property since at least the 1830s. It has been interpreted, reinterpreted and misinterpreted by judges since 1841 and embedded in the most durable of the trio of clauses statutes enacted in 1845, the Land Clauses Consolidation Act (‘ the 1845 Act’). The effect of the phrase in that Act – introduced into Parliament at the peak of the Victorian railway boom 1 – falls to be considered in this case in the context of the wholly more contemporary interaction between the public interest in the development of the State's electricity infrastructure, and the private rights of property owners across whose land those facilities must, unavoidably, travel.

2 . Such is the gravitational pull of the terminology that the phrase ‘ injurious affection’ was drawn into this appeal to construe legislative provisions that do not use it, and that make no reference to provisions that do. Section 53(1) of the Electricity (Supply) Act 1927, as amended, (‘ the 1927 Act’) empowers the Respondent/Cross-Appellant (‘ ESB’) to place an electric line 2 across certain lands. Section 53(9) enables ESB to enter on lands for the purpose of placing, repairing or altering a line installed on foot of that provision. Section 53(5) as amended provides that where ESB invokes either of those powers, the owner or occupier of the lands is entitled ‘ to be paid compensation in respect of the exercise by the Board … of the powers conferred by’ those subsections.

3 . The main issue in this case depends on the extent of that right. The Appellants, Cross Appeal Respondents and Notice Parties ( ‘the O'Reillys’) say that when an electric line and supporting poles and pylons are placed, respectively, above and on lands of theirs (as has occurred), they are entitled to be paid sums reflecting more than just the impact on the value of the particular strip traversed by the line or area occupied by the poles or pylons supporting the line (together with consequent disturbance). They say that they are also entitled to compensation for the loss of value of house sites on the holding across which the lines travel, and that they are entitled to be compensated for a general loss of value to that holding. This is what they label ‘ injurious affection’. ESB disputes that they have any such entitlement.

4 . The Respondent (‘ the Arbitrator’), a Property Arbitrator appointed pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919 (‘ the 1919 Act’) agreed that the O'Reillys were entitled to compensation of this kind. These proceedings – in which ESB sought relief by way of judicial review of that decision – followed. The High Court (Heslin J. [2023] IEHC 83) found that the Arbitrator erred in so finding. Heslin J. also found, contrary to another ground of review urged by ESB, that the Arbitrator had not breached its rights to fair procedures in awarding compensation on the basis and in the manner that he did. This Court granted leave to the O'Reillys to appeal the decision of Heslin

J. on the question arising from the extent of the compensation to which the O'Reillys were entitled, also granting ESB leave to cross appeal the decision of the High Court on the fair procedures issue ( [2023] IESCDET 101)

The background

5 . The property in issue comprises two holdings (each described in the awards as ‘ the subject property’) at Crubany, County Cavan. One (the subject of what has been termed wayleave 112) is jointly owned by Mr. and Mrs. O'Reilly and comprises an irregularly shaped holding of c. 6.11 hectares. It was, at the time of the proceedings before the Arbitrator, used for the purposes of grazing and silage. The other (the subject of what is termed wayleave 113) was owned by Mr. O'Reilly and comprised an irregularly shaped holding of c. 7.29 hectares. It was also used for grazing and silage.

6 . Section 53(3) of the 1927 Act provides that before ESB places an electric line across any lands it must serve on the owner and occupier of the lands a notice (referred to by ESB as a ‘ wayleave notice’). Such notices were served on the O'Reillys on 15 February 2011. Each notice arose from the intended placing of a 110 kV line across the lands. In relation to wayleave 112, the 110 kV line was to run in a north/south direction for c. 230 metres, with one poleset within the holding. As to wayleave 113, it was to run for c. 120 metres, with one poleset and half of a steel pylon within the holding. In November 2011, the O'Reillys entered into ‘ Landowner Agreements’ with ESB pursuant to which, and in return for unobstructed access to construct the lines and all associated works, sums totalling €33,000 were paid by ESB to the O'Reillys. It is common case as between the parties (and following the decision of O'Moore J. in Payne v. ESB [2021] IEHC 512) that those payments are not to be taken into account in determining the statutory compensation to which the O'Reillys are entitled (although nothing in this judgment should be understood as either accepting, or not accepting, the correctness of that assumption). In particular, and noting that the fact that the O'Reillys – notwithstanding having obtained that sum – are now proceeding to seek further compensation may have been a source of some of the contention in this case, this judgment should not be understood as suggesting that ESB and landowners may not at an early stage in the process whereby the former avails of the...