Farm Ireland
Independent.ie

Tuesday 22 May 2018

Advice: 'I am concerned about what state bodies may have access to my land without my consent or knowledge'

 

Work on power lines that cross your land can be carried out without notice only in emergency circumstances
Work on power lines that cross your land can be carried out without notice only in emergency circumstances

Theresa Murphy

Q I have been following the case which was taken against the ESB about entering private lands. As a landowner and farmer I am concerned about what state bodies may have access to my land without my consent or knowledge. It is not that I want to stand in the way of progress, I would just like to know who can enter my land without warning me.

A The recent Supreme Court hearing involving the ESB and the procedure that it uses to serve a notice to enter private lands to carry out works on electricity lines has raised interest in the access that landowners give.

The ESB has won its Supreme Court appeal of a court finding that a procedure under which the Board served a notice to enter private lands to carry out works on electricity lines is unlawful.

Any landowners who have power lines running through their lands are affected but may not be aware that the 1927 Electricity (Supply) Act gives power to the ESB to place any electric line above or below ground across any land which is not a street/road/railway or tramway. Before placing an electric line across any land, they must serve on the owner and occupier of the land a notice in writing stating its intention to place the line and give a description of the nature of the line or fixture, and of the position and manner in which it is intended to be placed.

If the owner of the land consents to the placing of the line or consents with some conditions attached which are acceptable to the Board, the ESB may proceed and place the line across the lands in the manner which was outlined in the notice. However, if the owner does not consent within 14 days, the Board can decide to install the line without the consent of the landowner.

The issue in the recent case centred around the procedure that the ESB had used when giving power to authorised officers (by the CEO of ESB) to sign the notice which was issued to a landowner on whose lands upgrading works would be carried out. The Supreme Court found that there had been no breach of the 1927 Act by the ESB in the procedure that they used.

The 1927 Act, under the same provision, gives power to the ESB to enter and undertake repairs etc on lines which are placed on lands.

Therefore if you have a power line running through your land, for which the ESB complied with the notice requirements, effectively, there is a wayleave over your land for the repair and maintenance of the lines. Proper notice should be given, however emergency circumstances do allow repair work to be carried out without notice.

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Read also: ESB wins appeal over legality of procedure to enter onto lands

What is a wayleave?

A wayleave typically involves the running of pipes and services over, through or under land which is not owned by the person who needs the pipes or services ran. A wayleave should be registered on the folio of your land.

Compensation

The 1927 Act which gave these powers to the ESB did not provide for compensation to be paid to landowners in circumstances where power lines were placed on land. This became a bigger issue as larger power lines and pylons were required to be placed on land. The lack of compensation was legally challenged in 1985 in the ESB v Gormley case, in which the Supreme Court Judge described the right of the ESB to acquire a wayleave or easement over land to facilitate the construction of power lines, pylons and masts as a "burdensome right over the land". This opened the door for a legislative change which provided for compensation to landowners for damage done by electricity power lines, poles and pylons etc. There is now a recognised entitlement to compensation for damage to property as a result. However, issues still remain around devaluation of land as a result of the placement of lines etc.

If your lands are affected by proposed power lines, you should seek professional advice in relation to your individual circumstances.

Department of Agriculture

Landowners who make an application to the Basic Payment Scheme and other schemes give consent to Officers of the Department of Agriculture to enter the lands which make up the application for the purpose of inspecting for scheme eligibility.

This generally does not cause a problem for farmers as they are notified of the inspection and may accompany the inspectors as they carry out the inspection.

The EU regulations which provide for this power to enter lands and carry out inspections also details the proper procedure the officers must follow when carrying out an inspection under the schemes. Just because a farmer has made an application to the schemes does not give the Department officers an entitlement to enter the lands 'nilly willy'.

They only have the power to enter the lands to carry out a legal inspection. A legal inspection is one which follows the regulations which are set out in EU law.

This raises questions for a large number of farmers who did not receive 'Control Reports' for on-the-spot inspections which were carried out in recent years on their lands. A control report allows the farmer to review the details of the checks that the inspector carries out and draw conclusions on his/her compliance with the eligibility criteria, commitment and other obligations.

The farmer must be given an opportunity to sign the control report during the inspection to attest his presence at the inspection and to add his/her observations.

For all on-the-spot checks, the Department must produce a report. This means the farmer should be aware of any entry by a Department officer on to his lands and can expect that if the officers are entering their lands it will be to carry out an inspection which follows all the legal requirements set out in EU and adopted into Irish law.

This article is intended as a general guide only. You should seek professional advice in relation to individual circumstances. Theresa Murphy is barrister at law based in Ardrahan, Co Galway.

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