The High Court has directed a statutory property arbitrator to refer a legal question about €66,000 in land access payments to the court. The question is whether that earlier payment should be taken into account when compensation is assessed for an electricity line crossing land in Cappaboggan, Moyfenrath, Co Meath.
The ruling, delivered by Mr Justice Twomey on 28 June 2019, does not decide whether the payments should be deducted from any compensation award or ignored. It directs the arbitrator to state a case in the terms requested by the Electricity Supply Board (ESB), so the legal question can be considered by the High Court.
The dispute arose after Kenneth Payne was notified in June 2014 that an electric line would be placed across his land. He received a total of €66,000 in so-called Flexibility of Access payments between March 2015 and August 2017. The judgment says these payments are made to landowners who cooperate with construction and recognise disruption. It records some uncertainty about whether the money was paid by ESB, EirGrid on ESB’s behalf, or otherwise.
Payne later claimed compensation under section 53(5) of the Electricity (Supply) Act 1927. His claim was initially €640,500 and was reduced during arbitration to €400,660. The arbitrator, Desmond Boyle, was appointed under the Acquisition of Land (Assessment of Compensation) Act 1919.
ESB asked Boyle to refer the payment question to the High Court. Boyle refused in December 2018, saying he did not consider it a point of law germane to the arbitration and that he lacked jurisdiction to state a case of that nature. ESB then brought judicial review proceedings, seeking to quash the refusal and require a referral. Neither Boyle nor Payne took part in those proceedings; the judgment records that there was no opponent to ESB’s application.
The court held that a statutory property arbitrator’s decision could be reviewed and that the Arbitration Act 2010 did not prevent judicial review in this setting. Applying a three-part test, Mr Justice Twomey found the question real and substantial, capable of being stated clearly as a point of law, and important to determining the compensation claim. The judgment also records that Payne’s solicitor had said it was critical for Payne to know how the earlier payment would be treated before deciding whether to accept an unconditional offer or continue with arbitration.
The court therefore directed Boyle, under section 6 of the 1919 Act, to state the case. The judgment makes no final determination of Payne’s compensation or of how the €66,000 should be treated. It notes ESB’s argument that the issue could affect public spending and compensation practices for electricity lines more broadly.