Landowners need to fight for their rights and seek compensation on powerlines

Contentious issue: Powerlines should not be erected on land prior to comprehensive agreements that fully reflect the rights to compensation laid down by statute and case law
Contentious issue: Powerlines should not be erected on land prior to comprehensive agreements that fully reflect the rights to compensation laid down by statute and case law

Richard Collins

I am frequently asked if it is worthwhile for landowners to resist the construction of electric powerlines across their property. Because the powers held by ESB/ Eirgrid are so strong, based on my experience, I must admit that it is doubtful.

Huge sums have been spent on these objections and, while there have been a few notable successes, it is very likely that these schemes could return, like a malady, in a slightly different and even more objectionable form.

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Another frequent question is about the health hazards associated with electric lines. While I am not in a position to give guidance on this matter, there is a definite perception in the public mind - which is generally reflected by a negative impact on the value of adjoining property.

Most people accept that power infrastructure, based on steel pylons and electric wires over land, is essential for the orderly development of the country.

However, this does not mean that anybody should be expected to contribute either assets or time for the public good, without compensation.

Like it or not, everything has a price.

The conflict that has developed in recent years with ESB/Eirgrid, is directly related to the stubborn and poorly managed policy of that semi-state body. This view is supported by the contrasting, and reasonably successful, policy of Gas Networks Ireland (formerly Bord Gais) when dealing with farmers for the construction of gas pipelines.

Legal powers do not confer the right on any entity, public body or private individual, to excessively dominate other people's entitlements.

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In this series of articles, I will attempt to tease out the background to an unsatisfactory situation, by clarifying some facts and suggesting a new approach by both sides.

Existing compensation schemes for Wayleaves and Easements

The compensation process for Wayleaves and Easements is complex, mainly because of the hidden nature of some impacts.

Visual impacts of the infrastructure are only part of the story. Both ESB/Eirgrid and Gas Networks Ireland have tremendous legal powers to acquire rights to land interests, and most landowners do not realise the long-term implications of parting with these rights, without compensation, until it is too late.

Conveyancing solicitors need to carefully consider the long-term implications of parting with these rights in the light of increasing values and the more intensive use of land.

In fairness to Gas Networks Ireland, it has recognised these implications and has generally compensated reasonably.

Not so in the case of ESB/Eirgrid. Since its creation in 1927, and with the exception of a few years prior to 2010, ESB/Eirgrid has constantly and robustly resisted compensation for land and property devaluation arising from electric powerlines.

At times, they have even mercy pleaded about the cost of properly compensating farmers, conveniently forgetting the much greater cost of High Courts and Arbitrations.

One brave landowner, Ms Gormley, in 1985, was forced to take her case as far as the Supreme Court to establish her entitlements.

Despite that court finding in her favour, and clearly stating that a wayleave/easement over land, to facilitate the construction of a powerline, was "a burdensome right" over that land, ESB/Eirgrid are still strongly challenging compensation claims and awards at arbitration and in the Courts.

ESB/Eirgrid senior executives and advisors should well know that the grounds for successfully appealing arbitration awards are very limited. Attempting to intimidate landowners in this manner is totally unacceptable.

Millions have been wasted in legal and other consultancy costs designing major infrastructure schemes that have had to be eventually abandoned because of landowners' resistance.

Further millions are still being expended on costs aimed at resisting farmer's legitimate entitlements to compensation. If all this money was used properly there would be a much better outcome for everybody.

Powerlines should not be erected on land prior to comprehensive agreements that fully reflect the rights to compensation, laid down by statute and case law. Mickey Mouse payments, alone, for pylons are totally inappropriate: they have no basis in law and should not be accepted as adequate by farmers.

The nature of rights on land

The most common type of rights are those required by ESB/Eirgrid, Gas Networks Ireland and Irish Water.

For simplicity, in the forthcoming articles I will group these into underground and overground acquisitions. Specifically, I will refer mainly to overground rights acquired by ESB/Eirgrid and underground rights acquired by Gas Networks Ireland.

Difference between wayleaves, easements and rights of way

A very broad distinction between these interests is as follows:

1. A wayleave does not involve the acquisition of land but refers to a legal right, for a stated purpose, to run and maintain structures and services over or through land.

It does not automatically create a right of way over the land for access. It is not always registered on the land title and does not automatically transfer, unless legally provided for. A wayleave can be terminable.

2. An easement is very similar to a wayleave. An easement interest is capable of being registered at the Land Registry, and it generally is, and that is what mainly distinguishes it from an unregistered wayleave.

Such an easement, if registered, automatically transfers with the land to which it is attached. Where permanency is an important feature, easements are usually put in place rather than wayleaves.

3. A right of way permits the holder to passage over a defined area of property but does not include a right to the construction of structures either on or through the property.

Rights of way can be public or private. An example of a public right of way is the entitlement to usage of public roadways on land which is legally owned by the adjoining landowners.

An example of a private right of way is a right of an individual or other entity to access property over land which is not owned. This right may or may not be registered on the owner's title.

In the hope that readers now appreciate that they have a legitimate entitlement to compensation for electric lines on their land, and have a basic understanding of the differences between the three main property rights, I will, in the next few articles, move on to consider the type of compensation owners are entitled to.

I will also highlight the differences in the approach to compensation, and the attitude of major public bodies to property owners, when acquiring these rights.

Richard Collins is a consultant with FBA Consultants, based in Fermoy, Co Cork. He is the co-author of A Practical Guide to Compulsory Purchase in Ireland

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