Supreme Court Decides On Entry Of ESB Onto Private Lands

Author:Ms Deirdre Nagle
Profession:Mason Hayes & Curran
 
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The Supreme Court recently handed down a judgment on the legality of wayleave notices issued by ESB for entry onto private lands in order to perform upgrading works to an existing electricity line. The main issue for consideration was whether the person who signed the wayleave notice was correctly authorised.

In its judgment, the Supreme Court also considered the changes to the statutory function of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB.

Background

The proceedings related to the notice served by ESB on Killross Properties Limited, which was served with the intention of carrying out certain temporary works across Killross' lands as part of the repair and alteration works being carried out to an existing 110kV electricity line from Maynooth. The temporary works involved the diversion of electricity on a temporary alternative route for the duration of the upgrade works on the existing electricity lines. The notice was executed by an "Authorised Officer" and printed on ESB headed paper. The Authorised Officer's permission to issue this notice was in turn authorised by a document signed by an "Executive Director Networks". It was addressed to the Chief Executive of ESB and sought his approval to authorise nominated officers to exercise the powers and functions of the Board under Section 53 (3) of the Act. In its judgment, the Supreme Court also considered the changes to the statutory function of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB. This element was a key consideration in deciding the outcome in the present circumstances.

Basis of the appeal

The issues under appeal related to:

Whether section 9 of the Act permits the authorisation of the Board and its chief executive to exercise its power under that section, and Whether the first issue above was properly before the High Court and/or the Court of Appeal Leave was also granted to Killross to bring a cross appeal as to whether ESB was precluded from exercising its power under section 53 of the Act in circumstances where it had entered into an infrastructure agreement with EirGrid relating to their respective obligations and as a result of their respective licences to own or operate the electricity transmission systems in Ireland.

Killross contended the validity of the notice served...

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