ESB can appeal judgment over access to private lands

The Supreme Court has agreed to hear an appeal with potentially important implications for how the ESB and other statutory bodies carry out their functions.

In a published determination, the court said the ESB can bring an appeal to the Supreme Court against a Court of Appeal judgment which found the procedure under which the ESB served a notice to enter private lands to do work on electrical lines was unlawful.

In their determination, the Chief Justice, Ms Justice Susan Denham, Mr Justice Frank Clarke and Mr Justice John MacMenamin said the appeal raised issues of general public importance affecting the ESB's exercise of its statutory functions and with potential implications for how other statutory bodies exercise their functions.

The principal issue is whether Section 9 of the Electricity (Supply) Act 1927, or the Act as a whole, permits the chief executive of the ESB to be authorised by its board to carry out statutory functions, the court said. There was an additional issue whether that principal issue was properly before the court in the first place, it added.

Wayleave notice

Last July, the Court of Appeal upheld an appeal by Killross Properties Ltd over the legality of the ESB's wayleave notice authorising temporary entry onto the company's lands in Co Kildare as part of planned upgrading works to electricity lines.

The court held the procedure used by the ESB for serving wayleave notices under Section 53 of the Electricity Supply Act 1927 involved an unlawful delegation of the board’s powers under Section 9 of the Act.

The board was entitled to delegate the power to issue wayleave notices to its chief executive but not entitled to “sub-delegate” to the chief executive power to authorise such other persons as he deemed appropriate to issue wayleave notices, the court held. Any such persons had to be directly authorised by the board, it ruled.

The wayleave notice served by the ESB on June 28th, 2013, on Killross was signed by Eoin Waldron, described as an authorised officer of the board. Mr Waldron was not authorised by the board but rather authorised by the chief executive, which was done outside the provisions of Section 9, the appeal court found.

Temporary diversion

On that ground, it allowed the appeal by Killross, with registered offices at Celbridge, Co Kildare, over a wayleave notice permitting the ESB and Eirgrid enter onto the firm's lands at Collinstown, Co Kildare, to erect a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110kv electricity line as part of line upgrading works.

Killross bought the lands in 2007 and they were re-zoned in 2010 for use as a town centre development. It claimed it bought the lands with the benefit of existing representations from the ESB it would divert electricity lines to facilitate the town centre development then being contemplated, or else pay compensation.

The ESB denied any such representation and that dispute was not an issue before the Court of Appeal.

Following High Court orders, the ESB entered onto the lands in March 2015 to erect the temporary line and completed the works, and removed the temporary line, by August 2015.