ESB & Eirgrid (plaintiffs) v Roddy & Roddy

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Laffoy
• Judgment Date: 23 April 2010
• Neutral Citation: [2010] IEHC 158
• Judgment citation (vLex): [2010] 4 JIC 2302
• Date: 23 April 2010

[2010] IEHC 158

THE HIGH COURT

[No. 1367P/2010]

Electricity Supply Board (ESB) & Eirgrid Plc v Roddy

BETWEEN

ELECTRICITY SUPPLY BOARD AND EIRGRID PLC

PLAINTIFFS

AND

MICHAEL RODDY AND MARTINA RODDY

DEFENDANTS

ELECTRICTY (SUPPLY) ACT 1927 S53(9)

ELECTRICTY (SUPPLY) ACT 1927 S53(1)

ELECTRICTY (SUPPLY) ACT 1927 S53(3)

ELECTRICTY (SUPPLY) ACT 1927 S53(4)

ELECTRICTY (SUPPLY) ACT 1927 S53(5)

ELECTRICITY SUPPLY BOARD (ESB) v GORMLEY 1985 IR 129

ELECTRICTY (SUPPLY) (AMDT) ACT 1945 S46

ESB v HARRINGTON UNREP SUPREME 9.5.2002 2002/10/2366 2002 IESC 38

ESB v BURKE UNREP CLARKE 23.5.2006 2006/22/4653 2006 IEHC 214

ELECTRICTY (SUPPLY) ACT 1919 S53(5) (UK)

NOLAN TRANSPORT (OAKLANDS) LTD v HALLIGAN UNREP KEANE 22.03.1994 1994/5/1550

JACOB v IRISH AMATEUR ROWING UNION LTD 2008 4 IR 731

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 47

PLANNING & DEVELOPMENT ACT 2000 S42(3)

PLANNING & DEVELOPMENT ACT 2000 S43

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

HANRAHAN v MERCK SHARPE & DOHME (IRELAND) LTD 1988 ILRM 629

AMERICAN CYANAMID COMP v ETHICON LTD 1975 AC 396

LINGAM v HSE 2006 17 ELR 137

SHELBOURNE HOTEL HOLDINGS LTD v TORRIAM HOTEL OPERATING COMP LTD UNREP KELLY 18.12.2008 2008/58/12162 2008 IEHC 376

INJUNCTIONS

Interlocutory injunction

Delay - Urgency of application - Effect of delay - Appropriate forum for planning permission grievances - Restraint from refusing entry on land for purpose of erecting electric line - Whether urgency to application - Whether granting application would dispose of substantive proceedings - Whether strong case likely to succeed - Whether relief prohibitory or mandatory - Whether damages adequate remedy - Whether balance of convenience favoured granting relief - ESB v Gormley [1985] IR 129 and Electricity Supply Board (ESB) v Harrington (Unrep, SC, 9/5/2002) applied - ESB v Burke [2006] IEHC 214, (Unrep, HC, Clarke J, 23/5/2006) and Nolan Transport (Oaklands) Ltd v Halligan (Unrep, HC, 22/3/1994) approved - Jacob v Irish Amateur Rowing Union Ltd [2008] IEHC 196, [2008] 4 IR 731; Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd [1988] ILRM 629 distinguished - American Cyanamid Company v Ethicon Limited [1975] 1 AC 396 approved - Lingam v Health Service Executive [2005] IESC 89, [2006] 17 ELR 137 applied; Shelbourne Hotel Holdings Ltd v Torriam Hotel Operating Company Ltd [2008] IEHC 376 (Unrep, HC, Kelly J, 18/12/2008) considered - Electricity (Supply) Act 1927 (No 27) ss 46, 53 - Electricity (Supply)(Amendment) Act 1945 (No 12), s 46 - Planning and Development Act 2000 (No 30), s 42, 43, 50 - Planning and Development Regulations 2001 (SI 600/2001), art 47 - Relief granted(2010/1367P - Laffoy J - 23/4/2010) [2010] IEHC 158

ESB and Eirgrid Plc v Roddy

Facts section 15 of the Criminal Justice (Public Order) Act 1994 provides, inter alia, that "(1) Wherethe plaintiffs applied for an interlocutory injunction restraining the defendants from preventing them from entering on the defendants' lands for the purposes of erecting an electric line thereon in accordance with the first plaintiff's statutory powers under s. 53(9) of the Electricity (Supply) Act 1927 and, if necessary, directing the defendants to remove all obstacles and to unlock all gates on their lands which might prevent the plaintiffs from accessing those lands for the purposes of erecting an electric line in accordance with the first plaintiff's statutory powers under s. 53(9) of the Act. They contended, inter alia, that the plaintiffs should be denied relief on the basis that they had delayed in seeking the relief and that the overhead liens posed a substantial risk to their constitutional right to bodily integrity and health. They also contended that the wayleave notice required by law to be served by the plaintiffs in relation to the construction of the power line was invalid.

Held by Ms Justice Laffoy in granting the injunction sought that delay on the part of the moving party in initiating an interlocutory application for injunctive relief may be a bar to such relief but that there had not been delay on the part of the first plaintiff such as would bar its entitlement to the injunctive relief sought.

That the defendants had not raised a serious issue, technical or otherwise, as to the validity of the wayleave notice in the context of the clarification by the first plaintiff of the nature of the works which would be carried out on and over the subject lands.

That the public forum in which the merits or otherwise of an overhead power line should be debated was during the planning process not in the present judicial review proceedings.

Accordingly, the first plaintiff had met the standard of showing that it had a strong case that it was likely to succeed at the hearing, that damages would be an adequate remedy for the defendants and that the balance of convenience favoured the granting, rather than the withholding, of an interlocutory injunction.

Reporter: P.C.

1 Judgment of Miss Justice Laffoy delivered on the 23rd day of April, 2010.

The application

2 1. This is an application for an interlocutory injunction -

3 (a) restraining the defendants, their servants or agents, from preventing the plaintiffs, their servants or agents, from entering on the defendants' lands for the purposes of erecting an electric line thereon in accordance with the first plaintiff's statutory powers under s. 53(9) of the Electricity (Supply) Act 1927 (the Act of 1927), and

4 (b) if necessary, directing the defendants to remove all obstacles and to unlock all gates on the defendants' lands which might prevent the plaintiffs from accessing those lands for the purposes of erecting an electric line in accordance with the first plaintiff's statutory powers under s. 53(9) of the Act of 1927.

5 Permanent injunctions in similar terms and damages are sought in the plenary summons, which issued on 12 ^th February, 2010.

6 2. An issue having been raised by the defendants as to the second plaintiff's statutory entitlement to enter onto the defendants' lands, it was made clear by counsel for the plaintiffs at the hearing of the application that the relief sought on an interlocutory basis relates to the first plaintiff only and it is being sought for the purposes of enabling the first plaintiff to erect electric lines in accordance with subs. (9) of s. 53. In any event, that is entirely consistent with the manner in which the application for relief is framed, although, in the notice of motion of 12 ^th February, 2010, the application is expressed to be brought on behalf of the plaintiffs. Accordingly, I consider that it is unnecessary to address the submissions made on behalf of the defendants as to the statutory entitlement of the second plaintiff or the extent of the powers of the first plaintiff to operate and use electric lines placed over or under the land of a third party.

Factual background in outline

7 3. The defendants are husband and wife. The first defendant has averred that he is the registered owner of a farm at Grange Beg, Boyle, County Roscommon, the title to which is registered on Folio 14040F, County Roscommon (the subject lands). The defendants live on the farm with their ten year old son. They farm the lands in conjunction with neighbouring lands, which they have leased.

8 4. On 31 ^st October, 2002 the first plaintiff was granted planning permission subject to conditions by An Bord Pleanála for the construction of a 220 kV overhead transmission line (the Line), which is part of the Flagford-Srananagh 220/110 kV project, which will extend 56 kilometres from Flagford in County Roscommon to Srananagh in County Sligo and is a major infrastructural development in the Border Midlands Western region. Work on the project commenced in 2004. The planning permission has been extended on two occasions, most recently by a decision made by Roscommon County Council on 24 ^th November, 2009 granting a further extension of the duration of the permission for three years to 30 ^th October, 2012.

9 5. As authorised by the planning permission, the Line will cross the subject lands. In order to put the Line in place over the subject lands, the first plaintiff requires to enter on to the subject lands to erect one steel lattice tower thereon and a half of another steel lattice tower, which straddles the boundary with the neighbouring property, and to put in place three high tension conduct wires together with a fibre optic communications cable and an earth wire which will be strung along the masts for a distance of 513 metres over the subject lands.

10 6. The first plaintiff has been in communication with the defendants and their solicitors for over six years in an attempt to negotiate terms of entry on the subject lands and statutory compensation for such entry. An original wayleave notice served on 3 ^rd November, 2003 was replaced by the current wayleave notice (the Wayleave Notice) which was served on both defendants on 2 ^nd February, 2005. Entry by employees of the first plaintiff onto the defendants' lands on foot of the Wayleave Notice was first refused in a letter dated 30 ^th May, 2005 from the defendants' solicitors. An incident occurred in 2005 involving the first defendant and employees of the first plaintiff, which became the subject of a prosecution in the District Court. There is considerable controversy in the affidavits on this application as to what happened on that occasion and what the outcome in the District Court was. The controversy cannot be resolved on this application. In fact, it is a distraction from the real issues and it would be better if it had not been brought into the...