Electricity Supply Board v Killross Properties Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cregan,Mr. Justice Gerard Hogan |
| Judgment Date | 11 July 2016 |
| Neutral Citation | [2016] IECA 210 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [COA Record No. 2015/000196] |
| Date | 11 July 2016 |
Peart J.
Hogan J.
Cregan J.
AND
[2016] IECA 210
[COA Record No. 2015/000196]
THE COURT OF APPEAL
Fair procedures – Access to land – Validity of notice – Appellant seeking more extensive notice than that provided for in s. 53(3) of the Electricity (Supply) Act 1927 – Whether notice complied with fair procedures
Facts: The first respondent, Electricity Supply Board (ESB), on 12th November 2012, advised the appellant, Killross Properties Ltd, that they intended to carry out certain works on the company?s lands at Collinstown, Co. Kildare as part of the Maynooth-Ryebrook 110kV upgrade works. On 13th May 2013, ESB and the second respondent, Eirgrid plc, instituted proceedings in order to restrain the appellant from preventing ESB securing access to the lands for the purpose of carrying out these works (including initial surveys). On 5th June 2013 the company consented to the making of an interlocutory order in the High Court restraining the company from preventing either respondent entering upon the lands and making such enquiries, investigations and examinations. On 14th June 2013, the respondents sought further relief and on that occasion the High Court made an order after a contested hearing which allowed ESB to restring lines where this could be achieved without the erection of temporary line diversion. Certain restringing works were carried out by ESB and Eirgrid on foot of this order. On 28th June 2013, ESB then served formal notice on the company pursuant to s. 53 of the Electricity (Supply) Act 1927 informing Killross that ESB intended to carry out temporary works (including a temporary line diversion) forming part of the repair and alternation works. On 17th July 2013, ESB served a formal notice pursuant to s. 53(3) as a prelude to entering upon the Killross lands. Killross challenged the validity of the notice. On 19th December 2014, the High Court (Hedigan J) granted an order permitting the respondents to enter upon Killross?s lands for the purposes of erecting a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110kV electricity line. Hedigan J rejected the argument that Killross was entitled to more extensive notice than that provided for in s. 53(3). Following the making of the order, ESB entered upon the lands in March 2015 to erect the temporary line and these works were completed (and the temporary line removed) in August 2015. The appellant appealed to the Court of Appeal against Hedigan J?s decision. Killross submitted that the notice did not comply with fair procedures, that the wayleave notice of 28th June, 2013 was invalid because of certain defects contained within it, and that there was an improper delegation of power pursuant to s. 9 of the 1927 Act and/or that the notice was ultra vires.
Held by Hogan J that the notice given by ESB complied fully with that prescribed by s. 53(3) of the 1927 Act and that Killross was not entitled to advance notice that a formal statutory notice of this kind would be served; to hold that such was required would be in effect to amend or supplement that already prescribed by and set out in the sub-section in question. Hogan J noted that if the landowner is dissatisfied with the adequacy of the procedures specified by s. 53(3), the remedy of which he must then avail is to challenge the constitutionality of the sub-section. As Killross did not avail of this opportunity and as the arguments advanced on the fair procedures issue amount in substance to a collateral attack on the constitutionality of the sub-section without actually having done so, Hogan J dismissed the appeal so far as the issue of notice and fair procedures were concerned, distinguishing O?Brien v Bord na Móna?[1983] IR 255. Cregan J held that the wayleave notice which was served in this case was served by a person who had no lawful authority to do so. Cregan J held that the authorisation of the Chief Executive by the Board to permit the Chief Executive to delegate these powers to other persons was?ultra vires?s. 9 of the 1927 Act. Cregan J held that the wayleave notices were served unlawfully and must be set aside.
Hogan J held that the appeal should be dismissed so far as the issue of notice and fair procedures were concerned. Cregan J held that the wayleave notices were served unlawfully and ought to be set aside.
Appeal allowed in part.
This is an appeal taken by the appellant, Killross Properties Ltd. (?Killross?) against the decision of the High Court (Hedigan J.) delivered on 19th December 2014. In that judgment Hedigan J. granted an order permitting the plaintiffs, Electricity Supply Board and Eirgrid plc (?ESB?), to enter upon Killross's lands at Collinstown, Co. Kildare for the purposes of erecting a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110kV electricity line.
The works in question were designed to effect an upgrade of existing electricity lines and the Court was informed that in the interval between the delivery of the judgment in the High Court and the hearing of this appeal these works have been completed. Following the making of the order, ESB entered upon the lands in question in March 2015 to erect the temporary line and these works were completed (and the temporary line removed) in August 2015.
The upgrade in question entailed the replacement of the existing electricity conductors with new higher capacity conductors (?restringing?) designed to ensure greater security of supply. As Hedigan J. noted in his judgment, the first stage involves survey works and investigations in order to establish the precise nature of the works to be carried out. The second involves the re-stringing operation with a new, higher capacity conductor where this can be done without the necessity of erecting a temporary line diversion. The third stage involves the erection of a temporary line diversion to ensure the completion of the re-stringing operation and the maintenance of continuity of supply to customers in the area.
The first intimation that the ESB might wish to access to the company's lands was made on 12th November 2012 by a Mr. Ciarán Hughes of ESB International. He sent an e-mail to Mr. Lar McKenna, the principal of Killross. Mr. Hughes advised that ESB Networks intended to carry out certain works on the company's lands at Easton as part of the Maynooth-Ryebrook 110kV upgrade works. The request was for access to the lands in order to carry out investigations on the foundations and the structures of certain pylons in order to determine whether foundation re-enforcement works would be necessary.
There then followed an extensive correspondence between the company and various members of the component parts of ESB, namely ESB Networks, ESB Networks Limited, ESB International regarding access, requests for information on the work, the nature of the access sought, the impact of the works on the development plan of the company and potential compensation payments and health and safety issues.
On 1st May 2013 Mr. Waldron, the authorised officer of the ESB, sent a survey notice and an accompanying covering letter and map. This letter stated that the purpose of entering onto the company's lands was to:
?.. survey: the route of a temporary diversion to part of the existing Dunfirth-Killegad- Rinawade 110kV line on the company's land and of cutting any tree, shrub or hedge which would obstruct or interfere 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.?
The present proceedings were instituted by ESB and Eirgrid on 13th May 2013 in order to restrain the defendant from preventing ESB securing access to the defendant's lands for the purpose of carrying out these works (including initial surveys) associated with the upgrade of these 110kV electricity transmission lines. On 5th June 2013 the company consented to the making of an interlocutory order in the High Court. That order restrained the company, its servants or agents from preventing either plaintiff entering upon the company's lands and making such enquiries, investigations and examinations as they thought proper in relation to the repair / alteration of the transmission lines.
On 14th June 2013, the plaintiffs sought further relief and on that occasion the High Court (Gilligan J.) made an order after a contested hearing which allowed the ESB to restring lines where this could be achieved without the erection of temporary line diversion. Certain restringing works were carried out by ESB and Eirgrid on foot of this order.
On 28th June 2013 the ESB then served formal notice on the company pursuant to s. 53 of the Electricity (Supply) Act 1927 (?the 1927 Act?). This notice informed Killross that ESB intended to carry out temporary works (including a temporary line diversion) forming part of the repair and alternation works to the existing Maynooth-Ryebrook 110kV line, the existing Dunfirth-Kinnegard-Rinawade 110kV line and the existing Maynooth-Rinawade 110kV line. The nature of the works and the position and the manner in which these works were intended to be carried out were set out in the schedule to the notice.
Following the service of the notice, an issue arose as to who was in occupation of the land. It was contended that the lands were being farmed by a Mr. David McKenna. At all events on 17th July 2013 the ESB served a formal notice on Mr. David McKenna pursuant to s. 53(3) of the 1927 Act.
The notice which ESB served a notice upon Killross pursuant to s. 53(3) of the 1927 Act was a prelude to entering...
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