The Supreme Court recently handed down a judgment on the legality of wayleave notices issued by ESB for entry onto private lands in order to perform upgrading works to an existing electricity line. The main issue for consideration was whether the person who signed the wayleave notice was correctly authorised.

In its judgment, the Supreme Court also considered the changes to the statutory function of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB.

Background

The proceedings related to the notice served by ESB on Killross Properties Limited, which was served with the intention of carrying out certain temporary works across Killross’ lands as part of the repair and alteration works being carried out to an existing 110kV electricity line from Maynooth. The temporary works involved the diversion of electricity on a temporary alternative route for the duration of the upgrade works on the existing electricity lines. The notice was executed by an “Authorised Officer” and printed on ESB headed paper. The Authorised Officer’s permission to issue this notice was in turn authorised by a document signed by an “Executive Director Networks”. It was addressed to the Chief Executive of ESB and sought his approval to authorise nominated officers to exercise the powers and functions of the Board under Section 53 (3) of the Act. In its judgment, the Supreme Court also considered the changes to the statutory function of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB. This element was a key consideration in deciding the outcome in the present circumstances.

Basis of the appeal

The issues under appeal related to:

  • Whether section 9 of the Act permits the authorisation of the Board and its chief executive to exercise its power under that section, and
  • Whether the first issue above was properly before the High Court and/or the Court of Appeal

Leave was also granted to Killross to bring a cross appeal as to whether ESB was precluded from exercising its power under section 53 of the Act in circumstances where it had entered into an infrastructure agreement with EirGrid relating to their respective obligations and as a result of their respective licences to own or operate the electricity transmission systems in Ireland.

Killross contended the validity of the notice served and namely that the appointment of the Authorised Officer for the purposes of serving the notice was an unlawful delegation of powers under section 9 of the Act. Killross argued that this rendered the notice unlawful, as a result. The Court of Appeal considered the issue of whether ESB could authorise one of its officers to delegate the powers under section 9 to another officer. It held that there was nothing in the Act that permits the officers to whom ESB has delegated its powers to, to sub-delegate these powers to other authorised officers.

ESB argued that there was no sub-delegation of authorisation and argued that the Chief Executive did not delegate the section 9 powers further, but instead exercised the section 9 power in authorising the Authorised Officer to serve the notices.

Consideration of the issues

In respect of the appeal issue, the Supreme Court disagreed with the Court of Appeal on the sub-delegation point made by Killross and held that the authorisation by the Chief Executive was an exercise of the powers under section 9 of the Act. It did not constitute the delegation of that power to another officer.

On the cross-appeal issue, the Supreme Court held that ESB is bound as the transmission system owner to do certain maintenance and construction works under EirGrid’s development plan. As a result, the carrying out of this type of work may require ESB to use its statutory power under section 53(1) of the Act to place a line across the land of a third party in order to lawfully complete the works that now forms part of its statutory function. Indeed, prior to exercising that function it must serve a notice as required by section 53(3). The Supreme Court held that the performance of the uprating project by ESB was within the current regulatory framework and was not an unlawful delegation of its statutory power under section 53 or an abandonment of its discretion to use that power.

Ruling

The Supreme Court held for ESB and EirGrid in allowing the appeal and in dismissing the cross appeal brought by Killross.

Conclusion

This judgment is important in that the Supreme Court has clarified the circumstances in which the issuing of a wayleave notice by ESB under section 53 of the Act will be found to be lawful and not invalid as a result of a sub-delegation of its power under section 9 of the Act.

The judgment also usefully summarises the key distinctions between ESB and EirGrid’s respective roles in the transmission system and explains how the separation of functions between these parties operates.