The Supreme Court has allowed appeals by the Electricity Supply Board (ESB) and Eirgrid plc over a notice requiring temporary electricity works on lands owned by Killross Properties Limited, restoring the High Court’s dismissal of Killross’s challenge to the notice.
The court ruled that section 9 of the Electricity (Supply) Act 1927 allowed the ESB to authorise its chief executive to exercise the Board’s power to identify officers who could act for it. The chief executive’s authorisation of Eoin Waldron to issue the notice was therefore not an unlawful sub-delegation, Ms Justice Finlay Geoghegan held in a judgment delivered on 18 April 2018.
The notice, dated 28 June 2013, said the ESB intended to carry out temporary works across Killross’s lands for an upgrade of existing 110kV transmission lines from Maynooth. The works would temporarily divert electricity while the upgrade was carried out. Waldron, described in the notice as an “Authorised Officer”, signed it.
Killross argued on its cross-appeal that the ESB had, through the electricity-market regulatory arrangements and an infrastructure agreement with Eirgrid, given up its discretion to use its statutory powers. The Supreme Court rejected that argument. Although the ESB was required, as transmission system owner, to carry out work in accordance with Eirgrid’s development plan, the court said the ESB remained responsible for deciding to use its statutory power to place a line across another party’s land and for serving the required notice.
The court concluded that the project did not amount to an unlawful delegation or abdication of the ESB’s discretion to Eirgrid or ESB Networks Limited. It also upheld the Court of Appeal’s assessment that Waldron acted for the ESB when signing and serving the notice.
The Supreme Court allowed the appeal, dismissed the cross-appeal, and vacated the part of the Court of Appeal order that had quashed the notice. It dismissed Killross’s appeal from the High Court in its entirety. The court did not decide costs; it directed that the parties be heard on any variation to the Court of Appeal costs orders and on costs in the Supreme Court.