An ESB wayleave notice concerning temporary electricity line works on land owned by Killross Properties Ltd was unlawful because the officer who served it had not been authorised by the ESB Board, Mr Justice Cregan concluded in a Court of Appeal judgment delivered on 11 July 2016.
The notice, served on 28 June 2013, concerned works to existing 110kV lines. It described the diversion as temporary and said it would be removed after repair and alteration works were completed. The notice also addressed tree cutting under section 98 of the Electricity (Supply) Act 1927.
Killross argued that the notice was invalid for several reasons, including an uncertain description of the works, the absence of a stated duration and confusion between statutory powers. Cregan J rejected those arguments. He found that the company knew the planned works in detail, that section 53 did not require the notice to state an estimated duration, and that referring to both sections 53 and 98 did not invalidate the section 53 notice.
The judge also rejected the claim that ESB had delegated its notice-issuing power to Eirgrid or ESB Networks Ltd. He found the relevant agreements reserved that power to ESB. The evidence, he said, showed that Eoin Waldron was an ESB employee acting for the Board when he signed and served the notice.
However, Cregan J concluded that the Board had unlawfully authorised the ESB chief executive to delegate the notice power to nominated officers. Section 9 of the 1927 Act allowed the Board to authorise its officers or servants to exercise its powers, but did not permit the Board to authorise an officer to pass those powers on to others. Waldron had been authorised by the chief executive, rather than directly by the Board.
The judgment also addressed whether the section 9 delegation argument had been properly raised in the proceedings. Cregan J found that it was covered by the pleadings and should be considered.
He concluded that the notice had been served by a person without lawful authority and said the wayleave notices “must be set aside”. The supplied judgment excerpt contains no separate formal order or account of the remaining appeal issues; Hogan J’s judgment dealt with the separate question of notice requirements.