Court of Appeal unanimous in finding ESB procedure unlawful

About this case:

• Judgment:
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In a long-running dispute between the ESB and Killross Properties Ltd, Killross sought to challenge the legality of ESB’s temporary entry onto their private land. The works in question were designed to upgrade existing electricity lines to ensure greater security of supply, and the wayleave notice in this case was served by the ESB on 28th June 2013, signed by Mr Eoin Waldron, an authorised officer of ESB.

The arguments put forward by Killross in its appeal were threefold.

Firstly, that the company was entitled to more extensive notice than the seven days provided for in section 53 of the Electricity Supply Act 1927. In Justice Hogan’s judgement, with which Justice Peart and Justice Cregan agreed, the decision taken by Justice Hedigan in the High Court to reject Killross’s argument was upheld.

Justice Hogan indicated that arguments advanced by Killross on the issue of fair procedures amounted in substance to a collateral attack on the constitutionality of the sub-section, and stated that the remedy for such dissatisfaction with the adequacy of the procedures specified by section 53 of the 1927 Act would be to challenge the constitutionality of the sub-section.

Justice Hogan was satisfied that the 1927 Act was clear, that ESB had complied fully with the procedures set out, and rejected Killross’s argument.

The remaining arguments were dealt with in Justice Cregan’sjudgement.

In their second argument, Killross submitted that the wayleave notice was invalid because of defects including (1) two alternative descriptions given resulting in ambiguity; (2) no wayleave duration stated on the notice; (3) the confusion of statutory powers contained within the notice.

Justice Cregan was satisfied that there had been extensive correspondence about the nature of the works between Killross and various members of the component parts of ESB since 2012. Therefore on the facts of the case, Justice Cregan found that none of the alleged defects were well-founded, and were indeed sometimes illogical, rejecting Killross’s claim of invalidity on these grounds.

Killross’s third and final argument was that the delegation by the Board to the Chief Executive and by the Chief Executive to Mr Waldron of the Board’s power to issue wayleave was ultra vires section 9 of the 1927 Act, was an unlawful delegation of power and was a breach of the principle delegatus non potest delegare.

Section 9 of the 1927 Act provides that ‘the Board may exercise any of the powers and perform any of the functions and… conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf’.

Justice Cregan gave careful consideration to the principle of delegatus non potest delegare in various sources of literature including Hogan and Morgan, Administrative Law in Ireland (4th edn, Round Hall 2010) which states that ‘…a power must be exercised by the authority (delegatus) in which it has been vested by the legislature. It cannot be transferred (delegare) to any other person or body’.

Concluding, Justice Cregan held that Mr Waldron was not authorised by the Board; he was authorised by the Chief Executive and therefore had no lawful authority to serve the wayleave notice. The authorisation of the Chief Executive by the Board to permit the Chief Executive to delegate these powers to other persons was ultra vires section 9 of the 1927 Act.

Thus the wayleave notices in this case were served unlawfully and must be set aside.

In separate proceedings on the same day heard by the same three-Judge court, Killross contended that the upgrading of the capacity of six electricity lines in the general East Kildare area amounted to unauthorised development for which separate planning permission is required pursuant to section 160 of the Planning and Development Act 2000.

The planning authority, An Bord Pleanála, had already determined pursuant to section 5 of the Planning and Development Act 2000 that the works constituted exempted development and therefore did not require planning permission.

Justice Hogan upheld the view taken by Justice Hedigan in the High Court that the Court could not go behind an otherwise valid section 5 determination in the course of a section 160 application – the developments at issue must be adjudged to have been lawful so that no planning permission was required – therefore dismissing the appeal.