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Thursday 22 February 2018

Supreme Court to hear appeal over ESB's right to enter lands to carry out works

ESB staff work to repair power lines. Photo: PA
ESB staff work to repair power lines. Photo: PA

Tim Healy

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 electricity provider 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.

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 that Act.

The Board was entitled to delegate the power to issue wayleave notices to its CEO but not entitled to "sub-delegate" to the CEO 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.

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