ESB v Burke and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Clarke
• Judgment Date: 23 May 2006
• Neutral Citation: [2006] IEHC 214
• Docket Number: [4008 P/2005]
• Court: High Court
• Date: 23 May 2006

[2006] IEHC 214

THE HIGH COURT

[4008 P/2005]

ESB v BURKE & ORS

BETWEEN

ESB

APPLICANT

AND

BURKE & OTHERS

RESPONDENT

ESB v HARRINGTON UNREP DENHAM 9.5.2002 2002/10/2366

ELECTRICITY (SUPPLY) ACT 1927 S53

ESB v GORMLEY 1985 IR 129

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001

EX TEMPORE JUDGMENT of

Mr Justice Clarke

delivered on the 23rd day of May, 2006

1 In these proceedings the plaintiff, ("ESB"), seeks an interlocutory injunction which would have the effect of restraining the defendants from interfering with the ESB in its attempts to go onto the lands of the defendants for the purposes of erecting part of the ESB network. The stated purpose of the ESB in erecting the proposed portion of the network is to allow for the connection of a wind farm, which it is proposed will be built in the vicinity, to be connected into the National Grid so that the electricity generated by that wind farm will be available for sale to customers. The ESB has served the appropriate wayleave notices in accordance with its obligations under the Electricity Supply Act; and when the ESB attempted to enter onto the lands for the purposes of commencing work, the actions of the Board were resisted by the defendants. In those circumstances, the board have sought an interlocutory injunction from the court.

2 The legal position in relation to the exercise by the ESB of its power of entry was the subject of analysis by the Supreme Court in the case of ESB v. Harrington in which the judgment of the court was delivered by Denham J. on the 9th of May, 2002. In that case, as here, the court was concerned with an interlocutory injunction sought by the ESB for the purposes of enabling the ESB to enter onto the lands of the defendants in that case, for the purposes of erecting an overhead electricity line. The court, having reviewed the facts that were in issue in that case, noted that a wayleave notice had been served and while there were some factual disputes concerning it, the court was satisfied that the notice had been served.

3 The court went on to analyse the legal position at p. 12 and the following pages of the judgment: Firstly, the court noted the provisions of Section 53 of the Electricity Supply Act1927, as amended, which permits the board to place an electric line as defined above or below ground across any land subject to certain exceptions which are not material either to this case or to the Harrington case. The court noted the judgment of Finlay C.J. in ESB v. Gormley [1985] IR 129 to the effect that, on the evidence adduced in that case, the court was satisfied that it was an inescapable conclusion that the power to lay lines for the purposes of transmission of electricity compulsorily was a requirement of the common good subject only to an entitlement to compensation.

4 The precise issue that was raised by the defendants inHarrington does not arise in this case, but it is important to note that the court placed significant weight in the course of its judgment, and in particular in considering whether damages would be an adequate remedy, and in relation to the balance of convenience, on what was described at p. 21 of the judgment as the policy and clear words of the Act giving to the ESB the right to place the line on the lands subject to the defendant's right to compensation.

5 Against that background it is necessary to consider the specific issues that are raised in this case which, it is said, should lead the court not to give an interlocutory injunction or perhaps not to order an injunction at this stage.

6 Firstly, an issue as to the validity of the planning permission obtained by the ESB, in the particular context of developments since the grant of that planning permission, has been raised. The facts, insofar as relevant to that issue, are as follows: The planning permission granted was for an entirely overground line. It is common case that since the planning permission was granted, an arrangement has been entered into with certain land owners which will allow the initial connection from the wind farm to appoint some 3. 5 kilometres from the wind farm to go underground. In that context it is suggested that the development which is now intended to be carried out (which would, therefore, be partly underground and partly overground) will not be in conformity with the planning permission.

7 Firstly I should say that, as a matter of policy, it is clear that if it were demonstrated that statutory undertakings, such as ESB, sought to enforce their statutory powers in circumstances where the exercise itself would be in clear breach of another statutory regime, then it would be wholly inappropriate for the court to facilitate such a breach. However, in that context it is necessary to have regard to the Planning and Development Regulations of 2001 and in particular the second schedule to those regulations which provides for exempted developments and especially Class 26 of those exempted developments which provides that the laying of underground cable by an electricity undertaking (which would obviously include the ESB) is such an exempted development and does not require planning permission.

8 To put it at its mildest, it seems to me that it is far from clear that the carrying out by the ESB of its now proposed construction of a network partly underground and partly overground would be in breach of the planning permission, given the provisions of Class 26 of the second schedule. As I indicated, if it were clear to me that the proposed works were in breach of the Planning Acts, then I would have no hesitation in refusing an injunction on that ground; but having regard to the fact that it seems to me probable, without reaching a concluded view on the matter, that the exemptions to which I have referred would permit the development, in the manner contemplated, it does not seem to me that that would be an appropriate ground for refusing the interlocutory relief sought. At the end of the day if there are disputes as to whether it is possible to construct the electricity line in the manner now contemplated, in conformity with the planning permission, then the method by which such disputes should be resolved is by means of an appropriate application to the court under the Planning Acts. If the defendants believe that it is not possible for the ESB to carry out the works, in the way which they now intend to carry them out, in conformity with the planning permission, then they have the clear right to seek the intervention of the court under the enforcement procedures specified in the Planning and Development Acts. It does not seem to me that it is open to persons in position of the defendants to take the planning law into their own hands by obstructing what would otherwise be lawful activity, where the law provides the appropriate remedy for dealing with disputed questions. Therefore it seems to me that it is least likely that there is...