Electricity Supply Board v Good

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 22 February 2023
• Neutral Citation: [2023] IEHC 83
• Court: High Court
• Docket Number: RECORD NUMBER: 2019/741 JR

Between

Electricity Supply Board

Applicant

and

Paul Good

Respondent

and

Peter O'Reilly

Notice Party

and

Rose O'Reilly

Notice Party

[2023] IEHC 83

RECORD NUMBER: 2019/741 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Compensation – Injurious affection – Applicant seeking judicial review – Whether the Electricity (Supply) Act 1927 incorporates a right to compensation for injurious affection

Facts: The applicant, the Electricity Supply Board (ESB), issued two wayleave notices to the notice parties, Mr and Ms O’Reilly, dated 15 February 2011. The respondent, Mr Good, assessed compensation payable by the ESB to the notice parties by virtue of the exercise by the applicant of powers to place an electricity line across their lands. By order made on 23 October 2019, the High Court (Noonan J) granted the ESB leave to apply for judicial review. The ESB sought: (1) an order of certiorari quashing the awards made by the respondent, dated 8 July 2019 and stamped on 25 July 2019, on a reference to arbitration pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919; (2) a declaration that in purporting to issue the awards the respondent erred in law and infringed fair procedures and the ESB’s legitimate expectations such that his award was void and of no legal effect; and (3) a stay on the awards pending the determination of the proceedings. There were three principal bases upon which the ESB claimed an entitlement to relief. The first issue comprised a claim that the respondent made final determinations contrary to the ESB’s legitimate expectation as to the approach the respondent intended to take to the issue, in breach of fair procedures. On the evening before the hearing, the claim under that heading was abandoned. The second issue concerned the application by the respondent of devaluation percentages as regards the notice parties’ claims. The ESB contended that, in so doing, the respondent erred in law: (i) by failing to have regard for the statutory provision in s. 53 (5) and (9) of the Electricity (Supply) Act 1927, as amended, which provides for compensation in the event of future access; (ii) by awarding compensation for ‘injurious affection’ to the remainder of the landholding, in circumstances where no land was subject to a compulsory acquisition and the notice parties remained the full owners of all lands; and (iii) in circumstances where s. 68 of the Lands Clauses Consolidation Act 1845 (which provides a right to compensation in respect of lands injuriously affected by the execution of works) was not incorporated in the 1927 Act. The third issue comprised a claim that, in deciding to allow a late amendment of the notice parties’ claims, the respondent acted in breach of fair procedures and failed to address, properly and lawfully, the requirements of the 1919 Act, in particular, s. 5(2) thereof.

Held by Heslin J that no ‘stand–alone’ right to be compensated for injurious affection survived the conscious decision by the legislature to exclude the operation of the 1845 Act from the scheme in respect of compensation for the exercise by the ESB of s. 53 powers. Heslin J found no right in s. 53 to receive injurious affection compensation in respect of other/retained lands across which no line is placed. Heslin J held that to award compensation for potential future access constituted a fundamental error on the part of the respondent and resulted in an award which was made outside the jurisdiction conferred on the respondent; this was a fundamental error as to what could properly be compensated for under the statutory scheme, the making of which resulted in an ultra vires decision. Heslin J decided that the ESB was entitled to relief on that ground. Turning to look at the argument based on the late delivery by the notice parties of revised claims, Heslin J took the view that to set aside the awards on that ground would be to fail to show due deference to the exercise by the property arbitrator of his discretion in conducting a process which was his to conduct. Heslin J was satisfied that the applicant had failed to establish an entitlement to relief on that ground.

Heslin J’s preliminary view was that justice required that the notice parties be awarded, if not all, then a very significant proportion comprising the majority of their costs.

Application granted.

Judgment of Mr. Justice Mark Heslin delivered on the 22nd day of February 2023

Introduction

1 . Section 53 of the Electricity (Supply) Act, 1927, as amended (the “1927 Act”) empowers the Applicant to place electric lines across land. Section 4 of the ESB (Electronic Communications Networks Act) 2014 contains a definition of an electric line.

2 . The line in question is the “Arva to Shankill No.2 110kV line” (“the line”) which, as might be expected, runs through various properties in the ownership of various parties, including the Notice Parties who reside in Cavan.

3 . Although the Act does not use the term ‘wayleave’, a notice issued by the Applicant pursuant to s. 53(3) is commonly called a ‘wayleave notice’. It is acknowledged that, in this case, the requisite wayleave notices were given in accordance with Section 53 (3) of the 1927 Act.

4 . Neither the issuing of a wayleave notice, nor access to lands, requires the consent of the landowner where the matter falls within the statutory powers under section 53.

5 . In the present case the Applicant issued two wayleave notices to the Notice Parties, both of which were dated 15 February 2011.

6 . These proceedings concern the assessment by the Respondent of compensation payable by the Applicant (also referred to in this judgment as “the ESB”) to the owner or occupier of lands (i.e. the Notice Parties) by virtue of the exercise by the Applicant of powers to place an electricity line across their lands.

7 . The Respondent did not play any active part in the proceedings. The Applicant's claim is resisted by the Notice Parties.

Relief sought

8 . By order made on 23 October 2019 (Noonan J) the Applicant was granted leave to apply by way of an application for judicial review for the reliefs in paragraph D of their Statement, filed on 18 October 2019, on the grounds set out in paragraph E thereof. The relief sought by the Applicant is in the following terms:

• 1. An order of certiorari, by way of judicial review, quashing the Awards made by the Respondent, dated 8 July 2019 and stamped on 25 July 2019, on a reference to arbitration pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919.

• 2. A declaration, by way of judicial review, that in purporting to issue the Awards, dated 8 July 2019 and stamped on 25 July 2019, the Respondent erred in law and infringed fair procedures and the Applicant's legitimate expectations such that his award is void and of no legal effect.

• 3. A stay on the awards pending the determination of these proceedings.

Wayleave Notices 112 and 113 (15 February 2011)

9 . Copies of the two Wayleave Notices, both dated 15 February 2011, which were sent by the Applicant to the Notice Parties comprise “Exhibit MB1” to the verifying affidavit sworn, on 17 October 2019, by Mr Michael Bourke, solicitor for the Applicant (i.e. “wayleave 112” or “112” and “wayleave 113” or “113”). Wayleave 112 was addressed to the First and Second Notice Parties, whereas the Wayleave 113 was addressed to the First Notice Party (and nothing turns on the foregoing). Both were signed by an Authorised Officer of the Applicant and begin in the following terms:

“I hereby give you notice that the Electricity Supply Board, pursuant to the powers conferred on the Board by Section 53 of the Electricity (Supply) Act 1927, as amended by subsequent Acts, intends to place an electric line as defined by Section 46 of the Electricity Supply (Amendment) Act 1945 above ground across your lands situate in the

Townland of Corraweelis

Barony of Upper Loughtee

County of Cavan.

The nature of the said line and the position and manner in which it is intended that it be placed is set forth in the Schedule hereto attached.

If within seven days from the receipt of this Notice you consent to such entry the same will be on the terms of the Board's policy endorsed on the back hereof. If you do not so consent the board will direct the line as authorised by section 53 (5) of the Electricity (Supply) Act 1927 as amended. In this event the board will be prepared to act in accordance with the same terms of the said policy (excluding the provisions of Clause 6 thereof) and you will be entitled to have compensation assessed by agreement or in accordance with the said Act.

I also give notice that the Electricity Supply Board, pursuant to the powers conferred on the Board by Section 98 of the Electricity (Supply) Act 1927, as amended by Section 5 of the Electricity Supply (Amendment) Act 1941, and Section 45 of the Electricity Regulation Act, 1999, intends after a period of seven days from the date of service of this Notice to lop or cut certain trees, shrubs or hedges which obstruct or interfere with the electricity wires or with the action of such wires.

The location of the said trees, shrubs and hedges and the extent of the intended lopping or cutting is set forth in the schedule hereto attached” (emphasis added).

10 . Each wayleave notice was in identical terms but the schedules to same related to separate portions of the Notice Parties' lands. Thus, each gave rise to a separate claim by them for compensation. Although later in this judgment I will look in some detail at the Respondent's award in respect of each claim, it is useful to distinguish between both wayleaves by setting out, at this point, how each of the “subject properties” were described by the Respondent in the awards issued by him.

Wayleave 112 “Subject property”

“The subject property comprises an...