Supreme Court says ESB can enter private land lawfully

Judgment overturns Court of Appeal decision about entry to Killross Properties’ site

The ESB has won its Supreme Court appeal over a significant finding that a procedure, under which the board served a notice to enter private lands to carry out works on electricity lines, was unlawful.

A five-judge Supreme Court, in a unanimous judgment, allowed the ESB's appeal over a Court of Appeal decision concerning the legality of a wayleave notice authorising temporary entry on to lands of Killross Properties Ltd as part of planned upgrading works to electricity lines.

It dismissed a cross-appeal by Killross concerning a number of other findings by the Court of Appeal.

Killross, with registered offices at Celbridge, Co Kildare, disputed a wayleave notice permitting the ESB and Eirgrid enter on to its 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 rezoned in 2010 for use as a town centre development.

The company 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 or Supreme Court.

Giving the Supreme Court judgment on Wednesday, Ms Justice Mary Finlay Geoghegan disagreed with the Court of Appeal the procedure used by the ESB for serving wayleave notices under section 53 of the Electricity Supply Act 1927 on Killross involved an unlawful delegation of the board's powers under section 9 of the Act.

Wayleave notice

The wayleave notice of June 28th, 2013, was signed by Eoin Waldron, an authorised officer of the ESB, and served by him on Killross. Following High Court orders, the relevant works were carried out in 2015. The Court of Appeal had ruled the ESB 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.

Ms Justice Finlay Geoghegan said section 9 of the 1927 Act conferred on the ESB the power to exercise its statutory powers and perform its statutory functions. The chief executive, when authorising Mr Waldron to exercise the powers and functions of the ESB under section 53 and section 98 of the 1927 Act, was not sub-delegating a power already delegated to him but rather exercising the power of the ESB under section 9, she held. Section 53, she noted, provides the ESB may, subject to provisions of that section, place any electric line above or below ground across any land.

Transmission and distribution

Under a new unbundling system, the ESB also retains ownership of transmission and distribution systems but is no longer responsible for their operation. This notice was connected with an upgrading project requested by Eirgrid on lines, of which ESB remains the owner, on Killross lands.

The section 53 power was needed to place a temporary diversion line. She dismissed arguments by Killross in its cross-appeal that a combination of provisions of the relevant regulations, the ESB’s transmission system owner licence and the infrastructure agreement with Eirgrid, meant the ESB had abdicated its discretion to use the statutory power under section 53.

The ESB is the entity which ultimately decided to serve the notice under section 53 to complete the project, she said.

The ESB was bound as transmission system owner to do certain maintenance and construction under Eirgrid’s development plan which work might require the ESB to use its section 53 power to place a line across the land of a third party to lawfully complete works now part of its statutory function.

Before exercising that power, the ESB is bound to serve a notice under section 53 and there was no unlawful delegation of its statutory power.