Electricity Supply Board v Gormley

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 21 May 1985
• Docket Number: [1983 No. 327P]
• Date: 21 May 1985

High Court

Supreme Court

[1983 No. 327P]

Electricity Supply Board v. Gormley

Electricity Supply Board Plaintiff

and

Carmel B. Gormley Defendant

Cases mentioned in this report:—

The Attorney General v. Southern Industrial Trust (1960) 94 I.L.T.R. 161.

Central Dublin Development Association v. The Attorney General (1975) 109 I.L.T.R. 69.

Frescati Estates v. Walker [1975] I.R. 177.

The State (Stanford) v. Corporation of Dun Laoire (unreported, Supreme Court, 20th February, 1981.

Crodaun Homes Ltd. v. Kildare County Council [1983] I.L.R.M. 1.

O'Brien v. Bord na Móna [1983] I.R. 255; [1983] I.L.R.M. 314.

Sisters of Charity of Rockingham v. The King [1922] 2 A.C. 315.

The People v. Conmey [1975] I.R. 341.

Buckley v. The Attorney General [1950] I.R. 67.

Foley v. Irish Land Commission [1952] I.R. 118; 86 I.L.T.R. 44.

Blake v. The Attorney General [1982] I.R. 117; [1981] I.L.R.M. 34.

O'Callaghan v. Commissioner of Public Works [1983] I.L.R.M. 391; [1985] I.L.R.M. 364.

Cregan v. Electricity Supply Board (1937) 71 I.L.T.R. 62.

Martin v. Electricity Supply Board (unreported, High Court, Meredith J., 7th and 10th December, 1931.)

Holland v. Hodgson (1872) L.R. 7 C.P. 328.

Never-Stop Railway (Wembley) Ltd. v. British Empire Exhibition (1924)[1926] 1 Ch. 877.

Readymix (Eire) Ltd. v. Dublin County Council (unreported, Supreme Court, 30th July, 1974

Dreher v. Irish Land Commission [1984] I.L.R.M. 94.

Meskell v. Coras Iompair Éireann éireann [1973] I.R. 121.

Dunne v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

The State (Pine Valley) v. Dublin County Council [1984] I.R. 407 [1982] I.L.R.M. 169.

East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Private Motorists Provident Society Ltd. v. The Attorney General [1983] I.R. 339; [1984] I.L.R.M. 88.

The State (Walsh) v. Murphy [1981] I.R. 275.

O'Brien v. Manufacturing Engineering Co. Ltd. [1973] I.R. 334; 108 I.L.T.R. 105.

Clifford v. Limerick Corporation (unreported, extempore, High Court, Barrington J., 1982 (No. 272 SS)). See O'Sullivan and Shepherd, a Source Book on Planning Law in Ireland (1984), p. 198.

Constitution - Statute - Validity - Public utility - Private property - Interference - Common good - Electricity supply cables - National grid - Statutory power of plaintiff board to erect pylons on defendant's land - No right to compensation - Statute unconstitutional - Local government - Planning - Permission - Application - Advertisement - Inadequate description of location - Permission invalid - Owner of registered land affected by exercise of statutory power - Local Government (Planning and Development) Regulations, 1964, (S.I. No. 221) article 9 - Electricity Supply Act, 1927 (No. 27), ss. 53, sub-s. 5, and 98 - Electricity (Supply) (Amendment) Act, 1941 (No. 1), s. 5 - Electricity (Supply) (Amendment) Act, 1945 (No. 12), s. 46 - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 25 and 26 - Registration of Title Act, 1964, (No. 16), ss. 52, sub-s. 1, 69 and 72 - Constitution of Ireland, 1937, Articles 40, s. 3, and 43.

Plenary Summons.

On the 16th February, 1982, the plaintiff issued a plenary summons in the High Court seeking an injunction restraining the defendant from preventing the plaintiff from entering upon and placing an electric line and 3 electricity pylons on her lands, and from lopping or cutting certain trees, shrubs or hedges which obstructed or interfered with the electric line or with the erection of the line. On the 24th March, 1983, the plaintiff applied to the High Court (McWilliam J.) by way of motion on notice and was refused an interlocutory injunction in the terms, pending the trial of the action. In her defence, filed on the 14th April, 1983, the defendant denied, inter alia, that the plaintiff had obtained valid planning permission for the erection of the electricity line, and counterclaimed for a declaration that ss. 53 and 98 of the Electricity (Supply) Act, 1927, as amended, were invalid having regard to the provisions of Article 40, s. 3, of the Constitution and for an injunction restraining the plaintiff from entering and trespassing on her lands. The order of the High Court made pursuant to the judgment of Carroll J., infra, directed that the defendant be permanently restrained in the manner claimed, subject to the proviso that the defendant be given another opportunity to choose between the three options provided by the plaintiff for the siting of the electricity pylons.

Article 40, s. 3, sub-ss. 1 and 2, of the Constitution of Ireland, 1937, provides:—

"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done vindicate the life, person, good name, and property rights of every citizen."

Article 43, s. 1, sub-ss. 1 and 2, of the Constitution of Ireland, 1937, provides:—

"1 This State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2 The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property."

Article 43, s. 2, sub-ss. 1 and 2, of the Constitution of Ireland, 1937, provides:—

"1 The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2 The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good."

Section 52, sub-s. 1, of the Registration of Title Act, 1964, provides:—

"(1). On the registration of a transferee of freehold land as full owner with an absolute title, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and there shall be vested in the registered transferee an estate in fee simple in the land transferred, together with all implied or express rights, privileges and appurtenances belonging or appurtenant thereto, subject to -

• (a) the burdens, if any, registered as affecting the land, and

• (b) the burdens to which, though not so registered, the land is subject by virtue of section 72,

• but shall be free from all other rights, including rights of the State."

Section 72, sub-s. 1, (h), of the Act of 1964, provides:—

"(1). Subject to subsection (2), all registered land shall be subject to such of the following burdens as for the time being affect the land, whether those burdens are or are not registered, namely -

• (h) easements and profits a prendre, unless they are respectively created by express grant or reservation after the first registration of the land."

Section 53, sub-s. 5, of the Electricity (Supply) Act, 1927, as amended by s. 46 of the Electricity (Supply) (Amendment) Act, 1945, provides that, if an owner or occupier of land fails to give her consent within 7 days after the service on her of a notice stating the intention of the Electricity Supply Board to place an electric line across her land, the Board may place such line across her land in the position and manner stated in the notice.

Section 98 of the Act of 1927, as amended by s. 5 of the Electricity (Supply) (Amendment) Act, 1941, authorises the Board, on giving 7 days written notice of its intention, to lop or cut any tree, shrub, or hedge which obstructs or interferes with the erection or laying of any electric wires of the Board or with the survey of the proposed routes of any transmission or distribution lines of the board.

The defendant was the owner of registered land which she had purchased without notice that the plaintiff had obtained planning permission for the erection of an electricity transmission line, a portion of which the plaintiff intended to run across her land, and without notice of the advertisement pursuant to which the application for planning permission had been made. This advertisement had described the location of the land to which the application related by naming the two townlands at which the transmission line was to commence and terminate in the county where the defendant's land was situate.

Pursuant to s. 53, sub-s. 3, of the Act of 1927, the plaintiff served a notice on the defendant of its intention to erect an electric line and three electricity pylons on her land and of its intention, pursuant to s. 98 of the Act of 1927, as amended, after a period of 7 days, to lop or cut certain trees, shrubs, or hedges which obstructed or interfered with the electric line or with the erection of the line. When the plaintiff's representatives attended at the defendant's land for the purpose of carrying out these works they were refused entry by the defendant.

The plaintiff issued a plenary summons in the High Court seeking an injunction restraining the defendant from preventing the plaintiff from entering and carrying out these works upon her land. Pending the trial of the action the plaintiff sought and was refused an interlocutory injunction by the High Court. At the trial of the plaintiffs action in the High Court it was held by Carroll J. in granting the injunction sought (subject to the proviso that the defendant be given another opportunity to choose between the three options provided by the plaintiff for the siting of the electricity pylons), 1, that as the substantive effect of the entire of ss. 53 and 98 of the Act of 1927 was considered by the Oireachtas when amending them post 1937, both sections as amended were entitled to the presumption of constitutionality.

2. That s. 53, sub-s. 5 and s. 98, as amended, did not constitute an unjust attack on the defendant's property...