The Court of Appeal dismissed Killross Properties Ltd’s appeal on the fair-procedures issue arising from ESB and Eirgrid’s temporary electricity-line works on the company’s lands at Collinstown, Co. Kildare. The works were completed before the appeal hearing, and the temporary line was removed in August 2015.
The appeal concerned a High Court order permitting the companies to enter the lands to erect a temporary diversion as part of an upgrade to 110kV electricity lines. The Court of Appeal judgment, delivered by Mr Justice Gerard Hogan on 11 July 2016, says ESB entered the lands in March 2015 and completed the works, including removal of the temporary line, in August 2015.
Killross challenged the validity of an ESB notice under section 53 of the Electricity (Supply) Act 1927 on three grounds: alleged failures of fair procedures, the authority to issue the notice, including questions of delegation, and alleged defects on the face of the notice. Hogan dealt with fair procedures in his judgment and said he agreed with Justice Cregan’s conclusions on the remaining issues.
Killross argued that, because the works interfered with its property rights, it should have received more notice than the statutory seven-day notice and an opportunity to make objections. The company had not challenged the constitutionality of section 53. Hogan said the court had to proceed on the basis that the legislation was valid for the purposes of the appeal.
Hogan distinguished the case from earlier decisions concerning compulsory acquisition or legislation lacking a specified notice procedure. Section 53 already set out a notice process, he said. If Killross considered that process constitutionally inadequate, it needed to challenge the constitutionality of the provision directly rather than seek additional requirements through the appeal.
Hogan agreed with the High Court that ESB’s notice complied with section 53 and that Killross was not entitled to advance notice that the formal statutory notice would be served. He therefore dismissed the appeal on the notice and fair-procedures issue. His judgment does not determine Killross’s separate claim that ESB had previously represented it would move the lines or pay compensation; he said that claim was outside these proceedings and could be pursued separately if the company wished.
The judgment records that the High Court had granted ESB and Eirgrid permission to enter the land. The supplied judgment ends after Hogan says he agrees with Cregan’s judgment on the other issues; it does not include Cregan’s reasons or the full terms of the Court of Appeal’s disposition.