Electricity Supply Board v Boyle

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 28 June 2019
• Neutral Citation: [2019] IEHC 475
• Docket Number: [2019 No. 36 J.R.]
• Court: High Court
• Date: 28 June 2019

[2019] IEHC 475

THE HIGH COURT

COMMERCIAL

Twomey J.

[2019 No. 36 J.R.]

[2019 No. 16 COM]

BETWEEN

ELECTRICITY SUPPLY BOARD

APPLICANT

AND

DESMOND BOYLE

RESPONDENT

AND

KENNETH PAYNE

NOTICE PARTY

Compensation – Case stated – Point of law – Applicant seeking an order directing the respondent to state a case to the High Court on an alleged point of law – Whether a previous payment made to a landowner in connection with the landowner’s co-operation with the laying of lines across his lands should be taken into account by the arbitrator in calculating the amount of compensation payable to the landowner

Facts: The notice party, Mr Payne, claimed compensation against the applicant, Electricity Supply Board (ESB), in relation to land owned by him in Cappaboggan, Moyfenrath, Co. Meath. ESB sought an order from the High Court directing the respondent, Mr Boyle, a property arbitrator (appointed by the Land Values References Committee under the Acquisition of Land (Assessment of Compensation) Act 1919), to state a case to the High Court on an alleged point of law, where the arbitrator had refused to do so. The issue in question was whether a previous payment made to a landowner in connection with the landowner’s co-operation with the laying of lines across his lands of €66,000 should be taken into account by the arbitrator in calculating the amount of compensation payable to the landowner. This compensation is payable under s. 53(5) of the Electricity (Supply) Act 1927, arising from the exercise of the statutory powers of ESB to place electric lines across lands.

Held by Twomey J that Lord Denning M.R. in Halfdan Greig & Co. v Sterling Coal Ltd. [1973] Q.B. 843 set out the three pre-requisites to be satisfied before a property arbitrator appointed under the 1919 Act should state a case to the High Court on a point of law. Taking these three pre-requisites in turn, Twomey J found that the issue in question was clearly whether the payment of €66,000 to Mr Payne, for his cooperation in allowing ESB to access his lands and in recognition of the disruption that such access might cause, should be taken into account in calculating the statutory compensation due to him under s. 53 of the 1927 Act. It seemed clear to the Court that the question of whether Mr Payne was, as suggested by ESB, being ‘doubly compensated at the expense of the public purse’ was a real and substantial issue, open to serious argument, was appropriate for a decision by a court of law, and was not a matter of fact or a point which was dependent on the special expertise of the arbitrator, thus satisfying the first pre-requisite. Taking the second pre-requisite, Twomey J held that the issue of whether the payment of €66,000 should be taken into account was one which was clear cut and was capable of being very accurately stated as a point of law, since it would seem to be either a ‘yes’ or ‘no’ answer, as was evident from the wording of the question framed by ESB which ESB asked the arbitrator to put in a case stated to the High Court. Taking the third pre-requisite, Twomey J held that it was self-evident that the point of law in question was of such importance that its resolution was necessary for the proper determination of the case, since the final amount of compensation could only be finalised once a decision was taken as to whether or not to take account of the previous ‘Flexibility of Access’ payment.

Twomey J held that the arbitrator should have stated a case and that the Court would direct the arbitrator, pursuant to s. 6 of the 1919 Act, to state a case to the High Court in the terms requested by ESB.

Order granted.

JUDGMENT of Mr. Justice Twomey delivered on the 28th day of June, 2019

Summary

1 This judicial review arises from a claim for compensation brought by the notice party, (‘Mr. Payne’) against the applicant (‘ESB’), in relation to land owned by him in Cappaboggan, Moyfenrath, Co. Meath.

2 In these proceedings, ESB seeks an order from this Court directing the respondent, a property arbitrator (appointed by the Land Values References Committee under the Acquisition of Land (Assessment of Compensation) Act, 1919) to state a case to the High Court on an alleged point of law, where the arbitrator has refused to do so.

3 The issue in question is whether a previous payment made to a landowner in connection with the landowner's co-operation with the laying of lines across his lands of €66,000 should be taken into account by the arbitrator in calculating the amount of compensation payable to the landowner. This compensation is payable under s. 53(5) of the Electricity (Supply) Act, 1927, arising from the exercise of the statutory powers of ESB to place electric lines across lands.

4 For the reasons set out below, this Court will direct the arbitrator to state a case to the High Court on the point of law in question.

Background

5 Mr. Payne was notified on 3rd June, 2014 that works would be commenced on his land for the purpose of the placement of an electric line pursuant to section 53 of the Electricity (Supply) Act, 1927 (as amended by section 1 of the Electricity (Supply) (Amendment) Act, 1985).

6 It is not in dispute that Mr. Payne was paid monies totalling €66,000 between 11th March, 2015 to 25th August 2017 in so called “Flexibility of Access” (‘FOA’) payments (although there seems to be some dispute as to whether those payments were made by ESB or by EirGrid on behalf of ESB or otherwise). These FOA payments are made to landowners who agree to cooperate with the construction of new electric lines and are made in recognition of the disruption caused by such construction. The FOA payments to Mr. Payne were made in three stages – at the time of initial access to the land, during construction of the electric line and upon completion of the entire electric line. The letter dated 3rd June, 2014 from EirGrid outlined the FOA payments and then provided as follows:

‘In addition, you will be entitled to be fully compensated for any reinstatement works, which, may need to be done on your land arising from the construction of the line.’

7 In December 2016, Mr. Payne submitted a compensation claim in the sum of €640,500 to ESB pursuant to section 53(5) of the Electricity (Supply) Act, 1927, as amended. This section states:

‘(5) If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in accordance with the foregoing subsection, the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land...