Kenneth Payne v The Electricity Supply Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 16 July 2016 |
| Neutral Citation | [2021] IEHC 512 |
| Docket Number | [2020/1086 SS] |
| Year | 2016 |
| Court | High Court |
[2021] IEHC 512
[2020/1086 SS]
THE HIGH COURT
Case stated – Compensation – Property arbitration – Property Arbitrator posing a question of law – Whether the sum of €66,000 paid to the plaintiff was to be taken into account by the Property Arbitrator in assessing the compensation to be awarded to him against the defendant
Facts: The High Court (Twomey J), by order dated the 28th of June 2019, directed Mr Boyle, nominated to act as Property Arbitration in respect of the claim of the plaintiff, Mr Payne, to state the following special case for the opinion of the Court: “Having regard to the fact that €66,000 has been paid by or on behalf of the Respondent to the Claimant by reason of the placement of the electricity line on his land, which line is now the subject of the claim for compensation to be determined by me, ought I (a) take into account the said payment or (b) disregard the fact of the said payment, in assessing the compensation to be awarded to the Claimant against the Respondent?”
Held by O’Moore J that the letter of the 3rd of June 2014 (properly construed) offered to make payments to Mr Payne in order to ensure that he cooperated with the overhead line construction of the Kinnegad –Mullingar 110 Kv reinforcement project; it was not an advance payment of compensation for any loss he might suffer as a result of the exercise by the defendant, the Electricity Supply Board, of their statutory powers under the Electricity (Supply) Act 1927 (as amended).
O’Moore J decided to answer the question of law posed by Mr Boyle in the following way: the sum of €66,000 paid to Mr Payne is not to be taken into account by the Property Arbitrator in assessing the compensation to be awarded to him against the Electricity Supply Board.
Question of law answered.
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 16th day of July, 2016.
Kenneth Payne is a farmer who lives at Cappaghboggan, Kinnegad, County Westmeath. On the 3rd of June 2014, the ESB served a wayleave notice on Mr. Payne in respect of his lands in Kinnegad. That wayleave notice stated that the ESB, pursuant to statutory powers which I will later describe intended to place an electric line above ground across Mr. Payne's lands.
On the 3rd of June 2014 Atkins Consulting Engineers, who stated they were acting on behalf of EirGrid, wrote to Mr. Payne informing him that he was entitled to “flexibility of access payments” and set out what they would be. The meaning of this letter is of central importance to the issue I have to decide, and I will return to it in some greater detail later in this judgment.
A total of €66,000 was paid to Mr. Payne between the 11th of March 2015 and the 25th of August 2017. These payments were made by EirGrid. The ESB maintains that the payments were made on its behalf.
Section 53 of the Electricity (Supply) Act 1927 (as amended) provides as follows:-
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“53 (1) The Board and also an authorised undertaker may, subject to the provisions of this section, and of the regulations made by the Board under this Act place any electric line above or below ground across any land not being a street, road, railway or tramway.
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(2) The Board and also unauthorised undertaker may attach to any wall, house, other building any bracket or other fixture required for the carrying or support of any electric line or any electrical apparatus.
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(3) Before placing an electric line across any land or attaching any fixture to any building under this section the Board or the authorised undertaker (as the case may be) shall serve on the owner and on the occupiers of such land or building a notice in writing stating its or his intention so to place the line or attach the fixture (as the case may be) and giving a description of the nature of the line or fixture and of the position and manner in which it is intended to be placed or attached.
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(4) If within 7 days after the service of such notice the owner and the occupier of such land or building give their consent to the placing of such line or the attaching of such fixture (as the case may be) in accordance with such notice either unconditionally of with conditions acceptable to the Board, or to the authorised undertaker and approved by the Board (as the case may require), the Board or the authorised undertaker may proceed to place such line across such land or to attach such fixture to such building in the position and manner stated in such notice.
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(5) If the owner or occupier of such land or building fails within the 7 days aforesaid to give his consent in accordance with the foregoing section, the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the exercise by the Board or authorised undertaker of the powers conferred by this subsection, and of the powers conferred by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919, the Board for this purpose being deemed to be a public authority”
The balance of the section is not material to the issue I have to decide.
Mr. Payne sought compensation pursuant to the provisions of Section 53 (5) of the 1927 Act. On his behalf, Land and Utility Compensation Consultants Limited submitted a claim for compensation. The subtotal of his claim for compensation amounted to €640,500, and the claim for compensation also sought the payment of professional and other costs and expenses.
The subtotal is made up of the following items:-
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(a) Interest in land acquired.
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(i) Loss of four sites at 1 acre €280,000.
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(ii) Wayleave for ESB line 560 metres at €100 per metre €56,000.
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(iii) Wayleave Fibre Optic cable 560 metres at €100 per metre €56,000.
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(iv) Reduction in value of lands within Wayleave Corridor €30,000.
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(b) Injurious affection.
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(i) To house & yard €90,000.
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(ii) To retained lands €116,000.
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(c) Disturbance and any other matters.
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(i) Owners time €7,500.
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(ii) Nuisance €5,000.
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Desmond Boyle was nominated to act as Property Arbitration in respect of Mr. Payne's claim. Mr. Boyle was to operate under the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919.
In a Statement of Claim dated the 21st of September 2017, Mr. Payne claimed his professional costs and expenses, described as his pre-reference costs. In terms of the compensation claimed, Mr. Payne now sought a total of €400,660, made up of the following sums:-
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(a) Value of land taken.
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(i) The value of the land taken reflects the value of the rights acquired under the wayleave notice.
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(ii) Acquisition of rights in respect of a 46 metre inner corridor including Fibre Optic cable €69,390.
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(iii) Acquisition of rights on the outer corridor and retained lands €166.770.
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(iv) Loss of two sites … €100,000.
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(v) 50% of valuation of two sites … €50,000.
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(b) Disturbance and any other matters.
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(i) Owners time €7,500.
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(ii) Remediation works and farm losses €7,000.
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In its Reply, dated the 21st of December 2017 the ESB pleaded:-
“13. The Claimant has already been paid a sum of money, in the amount of €66,000, in connection with the placement of the electric line on his lands.”
Interestingly, but not decisively, the ESB did not describe this payment as compensation (or partial compensation) in respect of the exercise by the ESB of its statutory powers under Section 53 of the 1927 Act.
On the 22nd of January 2018, there was a hearing before the Property Arbitrator. The special case stated by Mr. Boyle to this Court describes the hearing and its consequences in the following terms:-
“13. At the hearing, Counsel for the Claimant described the payments as being an ex gratia payment made to the Claimant by another entity and falling outside the statutory compensation scheme, requested certain information on what grounds a payment was made to the Claimant.
14. I adjourned the hearing on the application of the Claimant without reaching any conclusion on the grounds on which the alleged payment was made, the legislative basis on which it was made, or the terms on which it was made.”
This issue was then taken up in correspondence between the parties. By letter of the 31st of January 2018 (and in response to queries raised by the solicitors for Mr. Payne) the ESB describe the legislative basis upon which the payment was made in the following way:-
“Section 53 (5) of the [1927 Act] provides for an entitlement to compensation for the placing of a line. ESB chooses to make these upfront payments to landowners who facilitate access and who would be entitled to receive compensation if they chose to pursue a reference. Up until recently most landowners have been satisfied with this level of compensation provided by the standard scale of payment and have not pursued a reference to have statutory compensation assessed. The acceptance of such payments does not prevent a landowner from seeking to have the statutory compensation assessed by the Arbitrator. It is not an accord and satisfaction of that claim if made but the fact that these payments have been received cannot be ignored (and must be taken into account) in the subsequent statutory process of determining the award to be made.
We note that Counsel for Mr. Payne stated on 22 January 2018 that the FOA payments fall outside the statutory compensation scheme. That cannot be correct. ESB is a statutory corporation. It operates under its governing statute, the aforementioned 1927 Act. As such, FOA payments which are paid in connection with the placing of a line,...
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Electricity Supply Board v Good
...an adjournment pending the determination of separate proceedings (ultimately decided, on 16 July 2021, by O'Moore J – see Payne v ESB [2021] IEHC 512 concerning flexibility of access or “FOA” 22 . On 16 February 2019, the application for an adjournment was declined. 23 . On 17 February 2019......