ESB wins appeal over legality of procedure to enter onto lands
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 is unlawful.
A five judge Supreme Court, in a unanimous judgment, allowed the ESB’s appeal over a Court of Appeal (COA) decision concerning the legality of a wayleave notice authorising temporary entry onto 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 COA.
Killross, with registered offices at Celbridge, Co Kildare, disputed a wayleave notice permitting the ESB and Eirgrid enter onto 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 re-zoned 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 electricty 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 COA or Supreme Court.
Giving the Supreme Court judgment on Wednesday, Ms Justice Mary Finlay Geoghegan disagreed with the COA 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.
The wayleave notice of June 28th 2013 was signed by Eoin Waldron, an authorised officer of the Board, and served by him on Killross. Following High Court orders, the relevant works were carried out in 2015.