JUDGMENT of the Mr. Justice Gerard Hogan delivered on the 11th day of July 2016
1. This is an appeal taken by the appellant, Killross Properties Ltd. (“Killross”) against the decision of the High Court (Hedigan J.) delivered on 19th December 2014 . In that judgment Hedigan J. granted an order permitting the plaintiffs, Electricity Supply Board and Eirgrid plc (“ESB”), to enter upon Killross’s lands at Collinstown, Co. Kildare for the purposes of erecting a temporary diversion to the Dunfirth-Kinnegad-Rinawade 110kV electricity line.
2. The works in question were designed to effect an upgrade of existing electricity lines and the Court was informed that in the interval between the delivery of the judgment in the High Court and the hearing of this appeal these works have been completed. Following the making of the order, ESB entered upon the lands in question in March 2015 to erect the temporary line and these works were completed (and the temporary line removed) in August 2015.
3. The upgrade in question entailed the replacement of the existing electricity conductors with new higher capacity conductors (“restringing”) designed to ensure greater security of supply. As Hedigan J. noted in his judgment, the first stage involves survey works and investigations in order to establish the precise nature of the works to be carried out. The second involves the re-stringing operation with a new, higher capacity conductor where this can be done without the necessity of erecting a temporary line diversion. The third stage involves the erection of a temporary line diversion to ensure the completion of the re-stringing operation and the maintenance of continuity of supply to customers in the area.
4. The first intimation that the ESB might wish to access to the company’s lands was made on 12th November 2012 by a Mr. Ciarán Hughes of ESB International. He sent an e-mail to Mr. Lar McKenna, the principal of Killross. Mr. Hughes advised that ESB Networks intended to carry out certain works on the company’s lands at Easton as part of the Maynooth-Ryebrook 110kV upgrade works. The request was for access to the lands in order to carry out investigations on the foundations and the structures of certain pylons in order to determine whether foundation re-enforcement works would be necessary.
5. There then followed an extensive correspondence between the company and various members of the component parts of ESB, namely ESB Networks, ESB Networks Limited, ESB International regarding access, requests for information on the work, the nature of the access sought, the impact of the works on the development plan of the company and potential compensation payments and health and safety issues.
6. On 1st May 2013 Mr. Waldron, the authorised officer of the ESB, sent a survey notice and an accompanying covering letter and map. This letter stated that the purpose of entering onto the company’s lands was to:
8. On 14th June 2013, the plaintiffs sought further relief and on that occasion the High Court (Gilligan J.) made an order after a contested hearing which allowed the ESB to restring lines where this could be achieved without the erection of temporary line diversion. Certain restringing works were carried out by ESB and Eirgrid on foot of this order.
9. On 28th June 2013 the ESB then served formal notice on the company pursuant to s. 53 of the Electricity (Supply) Act 1927 (“the 1927 Act”). This notice informed Killross that ESB intended to carry out temporary works (including a temporary line diversion) forming part of the repair and alternation works to the existing Maynooth-Ryebrook 110kV line, the existing Dunfirth-Kinnegard-Rinawade 110kV line and the existing Maynooth-Rinawade 110kV line. The nature of the works and the position and the manner in which these works were intended to be carried out were set out in the schedule to the notice.
10. Following the service of the notice, an issue arose as to who was in occupation of the land. It was contended that the lands were being farmed by a Mr. David McKenna. At all events on 17th July 2013 the ESB served a formal notice on Mr. David McKenna pursuant to s. 53(3) of the 1927 Act.
11. The notice which ESB served a notice upon Killross pursuant to s. 53(3) of the 1927 Act was a prelude to entering upon the Killross lands. In these present proceedings Killross have advanced three grounds of challenge to the validity of the notice. First, it is said that the notice did not comply with fair procedures. Second, the vires (including issues as to delegation) of the notice was challenged. Third, it was said that the notice was invalid on its face. It seems clear that if the notice is valid then the actions of the ESB and Eirgrid in entering upon the land pursuant to that notice were indeed lawful. For all practical purposes, therefore, this entire appeal turns on the validity of the notice.
12. I have had the opportunity of reading in draft the judgment which Cregan J. is about to deliver and I agree with his conclusions. This present judgment will accordingly deal only with the first of the arguments advanced by Killross, namely, the issue of fair procedures.
13. It is important to state at the outset that at no stage has Killross challenged the constitutionality of s. 53 of the 1927 Act. This is not to suggest that s. 53 might prove vulnerable to a constitutional challenge if such had ever been mounted - a question upon which I express no view - but it is rather to stress that in the absence of such a challenge this Court cannot for present purposes look behind the validity of the 1927 legislation. Leaving aside, therefore, any technical question as to whether pre-1937 legislation enjoys a formal presumption of constitutionality (upon which it is, in any event, unnecessary to express a view), this Court must nonetheless proceed on the presumption that the 1927 Act was carried over into our law by Article 50 of the Constitution on the coming into force of the Constitution.
14. All of this means that the Court is further obliged to proceed from the premise that the 1927 Act has given the ESB the power in the public interest to enter upon these lands for a five month period and to erect and remove temporary line diversions with provision for independently adjudicated compensation for any loss which the company had suffered. This is a key part of the context against which all subsequent findings and observations of this Court in this judgment must be measured.
15. It may next be observed that when Killross purchased the lands in question in 2007 the electricity lines were already present. The lands were subsequently re-zoned in 2010 from their present agricultural use for use as a town centre development. It is true that Killross maintains that it purchased the lands from the previous owner with the benefit of existing representations by ESB that it would divert the electricity lines in order to facilitate the town centre development which was then under contemplation or alternatively pay compensation. As it happens, the existence of such a representation is denied by the ESB. But it is, in any event, unnecessary to express any view on this claim, because it does not form any part of these proceedings or this present appeal.
16. This, then, forms another part of the context to this judgment. If, as Killross claim, the ESB did provide such a representation that the electricity lines would be moved at the former’s request (or that compensation would be paid in the alternative) and the company has suffered loss as a result, then let it sue upon such a claim whether by way of an action for misrepresentation or collateral contract or otherwise should it wish to do so. What cannot happen, however, is that the present proceedings should be used as a substitute method of determining whether such a representation was given and whether the company has suffered loss as a result.
17. At the heart, therefore, of the present proceedings is the extent to which the ESB is required to give notice to landowners before entering upon the lands for the purposes of performing these upgrade works. The company maintains that given that the actions of the ESB amount to an interference with its constitutionally protected property rights, it was entitled to more extensive notice than that which it actually obtained following the service by the ESB of the statutory seven day s. 53(3) notice.
The provisions of s. 53(3), (4) and (5) of the 1927 Act
18. Before examining these contentions, it is first necessary to set out the relevant provisions of s. 53(1), s. 53(3), (4) and (5) of the 1927 Act (as amended):
(3) Before placing an electric line across any land or attaching any fixture to any building under this section the Board or the authorised undertaker (as the case may be) shall serve on the owner and on the occupier of such land or building a notice in writing stating its or his intention so to place the line or attach the fixture (as the case may be) and giving a description of the nature of the line or fixture and of the position and manner in which it is intended to be placed or attached.
(5) If the owner or occupier of such land or building fails within the seven days aforesaid to give his consent in accordance with the foregoing sub-section the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the exercise by the Board or authorised undertaker of the powers conferred by this subsection and of the powers conferred by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, the Board for this purpose being deemed to be a public authority.
(9) Where the Board or an authorised undertaker is authorised by or under this section to place or retain any electric line across any land or to attach or retain any fixture on any building the Board or such authorised undertaker (as the case may be) may at any time enter on such land or building for the purpose of placing, repairing, or altering such line or such fixture or any line or apparatus supported by such fixture.
A holder of an authorisation or the holder of a direct line permission may, with the consent of the Commission, for the purpose of such authorisation, exercise the powers conferred on the Board by subsections (1) to (5) and (9) of section 53 of the Principal Act and references to the Board in those subsections shall be construed as including references to a holder of an authorisation.”
As to the opportunity to be heard, no absolute right exists in relation to a s. 53 notice. It depends on the circumstances. Case-law opened to the Court that deals with the right to be heard where compulsory purchase of an interest in land is concerned is simply inapplicable to the situation herein. As noted above, only a right to compensation exists, no more. A right to be heard on s. 53 notice could only arise in the most exceptional circumstances. I can find no such circumstances herein.”
Whether Killross was entitled to more extensive notice than that provided for in s. 53(3) of the 1927 Act
21. At the hearing of this appeal, counsel for Killross, Mr. Bland S.C., laid considerable emphasis on what he submitted was the importance of procedural fairness in the context of an interference with a constitutionally protected right, namely, the company’s rights of ownership of the lands in question.
22. There is no doubt but that if the contemporary jurisprudence is analysed closely it is possible to detect such a trend in the manner submitted by counsel so far as property rights and other constitutionally protected rights which are similar to property rights (such as a right to reside in a property used as a family home or to be secure there) are concerned. Thus, for example, in Blake v. Attorney General  I.R. 117 one of the reasons given by the Supreme Court as to why the Rent Restrictions Act 1946 was unconstitutional was because the legislation contained no power to review the rents fixed by law “irrespective of changes in conditions” and this was itself “a circumstance of inherent injustice which cannot be ignored”: see  I.R. 117, 139, per O’Higgins C.J. One accordingly sees here that the absence of an element of procedural fairness - namely, the absence of any procedure whereby the fixed rents could be altered in the light of changed circumstances - was a major factor in the Supreme Court concluding that a law interfering with property rights was substantively unjust.
23. The absence of sufficient procedural safeguards in respect of ex parte orders made by the District Court removing spouses from a domestic dwelling led to the invalidation of part of the Domestic Violence Act 1996: see DK v. Crowley  2 I.R. 744. The Supreme Court made exactly the same point in respect of the inadequate procedural safeguards provided for the searching of private dwellings in finding s. 29 of the Offences against the State Act 1939 to be contrary to the guarantee of inviolability of the dwelling in Article 40.5 and thus unconstitutional in Damache v. Director of Public Prosecutions  IESC 12,  2 I.R. 265.
24. In the context of the actual entry unto land in the case of a public utility, the cases which, perhaps, make this point most starkly in terms of procedural fairness are two decisions of the Supreme Court from the 1980s. In Gormley v. Electricity Supply Board  I.R. 129 the earlier version of s. 53(3) of the 1927 Act - which had provided only for a system of ex gratia compensation to the landowner following compulsory entry onto the lands of the landowner - was found unconstitutional because, in the words of Finlay C.J. ( I.R. 129, 150-151):
26. The decision in Gormley post-dated the earlier decision in O’Brien v. Bord na Móna  I.R. 255. In that latter case the plaintiff’s challenge to the constitutionality of the Turf Development Act 1946 (“the 1946 Act”) was rejected by the Supreme Court insofar as it provided for the compulsory purchase of certain lands for turf development purposes. It is, however, important to note that the Court found for the plaintiff so far as the notice requirements were concerned. On this general point Finlay P. stated ( I.R. 255, 286-287):
In the light of that conclusion, what was necessary for compliance with fair procedure and natural and constitutional justice was, first, that the plaintiff (as the owner of the land affected) should have ample and sufficient notice of the intention or proposal to make a compulsory acquisition. Secondly, that he be given ample and sufficient opportunity of making objections or representations to that proposal and, thirdly, that the objections and representations, if any, made by him (or on his behalf) be communicated adequately to the board of members of Bord na Móna and judicially considered by them before they made a decision.”
28. Thus analysed, the present case is in reality very different in almost every way from that of O’Brien, some apparent similarities notwithstanding. One critical difference is that the 1946 Act which was at issue in O’Brien provided for the compulsory acquisition of land on a permanent basis, whereas the present case involves temporary, short-term work designed to improve the pre-existing utility infrastructure on the lands in question and which also provides for the payment of compensation in respect of such interference. The other critical difference is that s. 53(3) of the 1927 Act already provides for a system of notice to the landowner. It might be said, of course, that the length of the notice - seven days - is inadequate. It might also be objected that s. 53(3) does not sufficiently address the range of possible objections which landowners might wish to raise by providing for a mechanism for the adjudication of such disputes.
29. Given, however, that s. 53(3) of the 1927 Act already provides for a system of notice to the landowner, it seems that the objections of Killross amount in substance to saying that the sub-section is constitutionally infirm precisely because the notice requirements contained in the sub-section are themselves inadequate. Both before this Court and the High Court the company was driven to submitting that it was entitled to advance notice of the making of this notice, a proposition which, not surprisingly, was rejected by Hedigan J.
30. The company also relied on the decision of the Supreme Court in Dunraven Limerick Estates Co. v. Commissioners of Public Works  I.R. 113. That, however, was a case where the Commissioners had failed to comply with the statutory notice requirements contained in s. 6(1) of the Arterial Drainage Act 1945 to the effect that a proposed arterial drainage scheme should “fully” describe the nature of the interference with particular lands. The Supreme Court held that the Commissioners had failed on the facts of the case to comply with this statutory requirement by providing vague details as to the nature of such interference so far as the plaintiff landowner was concerned
31. The decision in Dunraven Estates is therefore a case where the public body failed to comply with the statutory notice requirements prescribed in the 1945 Act. The argument in the present case so far as fair procedures are concerned is quite a different one: it is that, in reality, the notice requirements contained in s. 53(3) do not themselves measure up to constitutionally required standards of fairness in respect of any interference with property rights and are inadequate for this purpose.
Conclusions on the notice and fair procedures issue
32. For my part, I agree with the conclusions of Hedigan J. on this point. The notice given by ESB complied fully with that prescribed by s. 53(3) of the 1927 Act and Killross was not, so to speak, entitled to advance notice that a formal statutory notice of this kind would be served. To hold that such was required would be in effect to amend or supplement that already prescribed by and set out in the sub-section in question.
33. I would, however, additionally reach this conclusion because Killross’s arguments amount in substance to a contention that s. 53(3) of the 1927 Act is unconstitutional by reason of the inadequacy of the notice procedures contained therein both in terms of the length of the notice and the grounds of objection which might require to be considered. If, however, the company wished to make this case it was obliged, at a minimum, by the requirements of Ord. 60, r.1 RSC to make this case directly by serving a notice to this effect on the Attorney General in which the constitutionality of s. 53(3) of the 1927 Act was directly put at issue. The company cannot make this point obliquely or indirectly by contending that although s. 53(3) provides for a notice procedure, that procedure is itself inadequate and should be supplemented by further requirements (such as, for example, a lengthier notice provision) identified by judicial decision.
34. All of this is to say that where the relevant legislation does provide expressly for a procedure, but it is contended that the procedure is somehow inadequate in itself, the party advancing such a claim must then challenge the substantive constitutionality of the legislation on the ground that it violates principles of fair procedures.
35. This is in contrast to the position in O’Brien where, it may be recalled, no procedures at all had been specified by the 1946 Act. Whereas the absence of such procedures in the 1946 Act allowed the double construction rule to come into play in O’Brien (which then allowed in turn for the creation of such procedures on the basis that it must be assumed that the Oireachtas did not intend to act in an unconstitutional fashion), this option is simply not open in the present case given that the procedures to be followed are expressly set out in s.53(3) of the 1927 Act.
36. To repeat, therefore, if the landowner is dissatisfied with the adequacy of the procedures specified by s. 53(3) of the 1927 Act, the remedy of which he must then avail is to challenge the constitutionality of the sub-section. As Killross did not avail of this opportunity and as the arguments advanced on the fair procedures issue amount in substance to a collateral attack on the constitutionality of the sub-section without actually having done so, I would therefore dismiss this appeal so far as this issue of notice and fair procedures are concerned.
37. As I have already indicated, I agree with the judgment which Cregan J. is about to deliver regarding the remainder of the issues raised by Killross.