Judgment Title: E. S. B. & Anor -v- Roddy & Anor
Composition of Court:
Judgment by: Laffoy J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 158
THE HIGH COURT
2010 1367 P
ELECTRICITY SUPPLY BOARD AND EIRGRID PLC
MICHAEL RODDY AND MARTINA RODDY
JUDGMENT of Miss Justice Laffoy delivered on the 23rd day of April, 2010
(b) if necessary, directing the defendants to remove all obstacles and to unlock all gates on the defendants’ lands which might prevent the plaintiffs from accessing those lands for the purposes of erecting an electric line in accordance with the first plaintiff’s statutory powers under s. 53(9) of the Act of 1927.
2. An issue having been raised by the defendants as to the second plaintiff’s statutory entitlement to enter onto the defendants’ lands, it was made clear by counsel for the plaintiffs at the hearing of the application that the relief sought on an interlocutory basis relates to the first plaintiff only and it is being sought for the purposes of enabling the first plaintiff to erect electric lines in accordance with subs. (9) of section 53. In any event, that is entirely consistent with the manner in which the application for relief is framed, although, in the notice of motion of 12th February, 2010, the application is expressed to be brought on behalf of the plaintiffs. Accordingly, I consider that it is unnecessary to address the submissions made on behalf of the defendants as to the statutory entitlement of the second plaintiff or the extent of the powers of the first plaintiff to operate and use electric lines placed over or under the land of a third party.
Factual background in outline
4. On 31st October, 2002 the first plaintiff was granted planning permission subject to conditions by An Bord Pleanála for the construction of a 220 kV overhead transmission line (the Line), which is part of the Flagford-Srananagh 220/110 kV project, which will extend 56 kilometres from Flagford in County Roscommon to Srananagh in County Sligo and is a major infrastructural development in the Border Midlands Western region. Work on the project commenced in 2004. The planning permission has been extended on two occasions, most recently by a decision made by Roscommon County Council on 24th November, 2009 granting a further extension of the duration of the permission for three years to 30th October, 2012.
5. As authorised by the planning permission, the Line will cross the subject lands. In order to put the Line in place over the subject lands, the first plaintiff requires to enter on to the subject lands to erect one steel lattice tower thereon and a half of another steel lattice tower, which straddles the boundary with the neighbouring property, and to put in place three high tension conduct wires together with a fibre optic communications cable and an earth wire which will be strung along the masts for a distance of 513 metres over the subject lands.
6. The first plaintiff has been in communication with the defendants and their solicitors for over six years in an attempt to negotiate terms of entry on the subject lands and statutory compensation for such entry. An original wayleave notice served on 3rd November, 2003 was replaced by the current wayleave notice (the Wayleave Notice) which was served on both defendants on 2nd February, 2005. Entry by employees of the first plaintiff onto the defendants’ lands on foot of the Wayleave Notice was first refused in a letter dated 30th May, 2005 from the defendants’ solicitors. An incident occurred in 2005 involving the first defendant and employees of the first plaintiff, which became the subject of a prosecution in the District Court. There is considerable controversy in the affidavits on this application as to what happened on that occasion and what the outcome in the District Court was. The controversy cannot be resolved on this application. In fact, it is a distraction from the real issues and it would be better if it had not been brought into the frame at all. For present purposes, the crucial factors are that the first plaintiff contends that it has a statutory power to enter on the subject lands and that it has complied with the statutory prerequisites to doing so. However, the defendants have persistently refused to allow the first plaintiff’s employees and agents to enter the subject lands to carry out the works which have been authorised and intend persisting in that refusal.
8. By virtue of s. 46 of the Electricity (Supply) (Amendment) Act 1945, the expression “electric line” is defined as meaning:-
“a wire or wires, conductor, or other means used for the purpose of conveying, transmitting, or distributing electricity and as including any transforming or other apparatus connected with such wire or wires, conductor, or other means, and as including also any casing, coating, covering, tube, pipe, or insulator surrounding any such wire or wires, conductor, or other means or any such apparatus, and as including also any post, pole, stay, erection, or structure supporting any one or more of the things hereinbefore mentioned.”
9. There have been two decisions during the last decade on applications analogous to this application which I consider are relevant to the manner in which the Court should determine this application.
10. The earliest is the decision of the Supreme Court in ESB v. Harrington  IESC 38 (Unreported, Supreme Court, 9th May, 2002). The relief sought by the first plaintiff in that case was an interlocutory injunction in terms similar to the first relief sought on this application in relation to the defendants’ lands in County Cork. In her judgment, Denham J., having outlined the statutory provisions referred to earlier, found that the provision as to notice in s. 53, subs. (3) had been met by the first plaintiff in that case. She also found that the defendants had refused consent in accordance with s. 53(4). She continued:
11. The issue raised by the defendants in that case was that, the wayleave notice having stated that the first plaintiff would be prepared to act in accordance with the terms of its policy, the defendants were entitled to a hearing by the board of the first plaintiff as to their wishes in regard to the line. On that issue, Denham J. held that the defendants had raised “a fair question to be tried” as to their entitlement to a hearing by officials of the first plaintiff, as opposed to members of the board of the first plaintiff, as to the position and placing of the line proposed in the wayleave notice. 12. On the question of where the balance of convenience lay, Denham J. stated as follows:
It is appropriate that the plaintiff has a policy as to communication and to hearing the views of the landowners. However, that has to be balanced against conflicting interests, including the common good.”
13. The decision of this Court (Clarke J.) in ESB v. Burke  IEHC 214 was also concerned with an application for an interlocutory injunction to restrain the defendants preventing the first plaintiff from entering on the defendants’ property in circumstances where planning permission had been obtained and wayleave notices served. The issue raised by the defendants in that case was as to the validity of the planning permission which the first plaintiff had obtained in the context of events which post-dated the grant of the permission, it being contended that the development which it was intended to carry out was not in conformity with the planning permission. In a passage relied on by counsel for the defendants on this application Clarke J. stated:
14. Later, Clarke J. stated that, if disputes existed as to whether it was possible to construct the electricity line in the manner then contemplated in conformity with the planning permission, the appropriate method to resolve such disputes was by an application to court under the enforcement procedures specified in the Planning and Developments Acts. Dealing with an issue as to whether the first plaintiff was complying with the concept of the “least cost technically acceptable” solution, as laid down by the Commission for Energy Regulation, he stated that the arena in which the debate should occur as to whether the proposed network was to be considered to be publicly acceptable, having regard to environmental and other factors, should be the planning arena and that issues of that type should be determined by the relevant planning authorities, subject to a challenge in the court by way of judicial review.
15. In ESB v. Burke, Clarke J. identified the first question for the Court as whether a fair issue had been shown to be tried, because, if it were the case that the defendants had not shown any basis upon which they would succeed at the trial, the grant of an interlocutory injunction would not arise. He found that the defendants had not established that there was a fair issue to be tried, stating that the prima facie legal position is as set out by the Supreme Court in ESB v. Harrington. He also took a similar line to the Supreme Court in relation to the question of the adequacy of damages and stated that, if the issue arose, he would not have been satisfied that damages would not be an adequate remedy having regard to the policy of the Act of 1927 and that he would consider that the balance of convenience would, in any event, have favoured the first plaintiff for reasons similar, but not identical, to those adopted by the Supreme Court in the Harrington case.
16. Clarke J., in granting the injunction, summed up the position as follows:
Issues raised on behalf of the defendants
Urgency and delay
19. On the evidence put before the Court by the first plaintiff, I am satisfied that the completion of the Line, which necessitates entry on to the subject lands, is regarded by the first plaintiff, in conjunction with the second plaintiff, as a matter of urgency. On this point, I adopt the position adopted by Clarke J. in the Burke case in relation to a similar point - that it is for the first plaintiff to determine the sequencing of the various elements of the project and that the Court should not “second guess” the first plaintiff in its decision in that regard.
20. On the question of delay, there is no doubt that the s. 53 process has been hanging over the defendants for over six years. During that period there was a considerable amount of communication between the parties, particularly, on the issue of the compensation to which the defendants are entitled under section 53. It is true that there was a gap in communications between the incident in June 2005 and March 2008, when negotiations were re-opened by the first plaintiff. On the question of compensation, it is clear that the resolution of the dispute between the first plaintiff and the defendants as to the assessment of the compensation to which the defendants are entitled could have been referred to arbitration pursuant to the provisions of the Act of 1919 referred to in subs. (5) of s. 53 at any time. However, that the first plaintiff would not be allowed to enter on the subject lands was a fairly constant theme of the correspondence from the defendants’ solicitors from March, 2008 onwards. The formal demand for access to the subject lands was made by the second plaintiff on the defendants on 10th September, 2009 and injunction proceedings were threatened. The response of the defendant was that access would not be granted. It was made clear that the defendants’ opposition to the Line was based primarily on the alleged serious health risks posed by it. These proceedings and this application were initiated over four and a half months later.
21. It is undoubtedly the case that, delay on the part of the moving party in initiating an interlocutory application for injunctive relief may be a bar to such relief. Counsel for the defendants relied on the oft cited passage from the judgment of Keane J., as he then was, in Nolan Transport (Oaklands) Ltd. v. Halligan (Unreported, High Court, 22nd March, 1994) in which it was stated that parties seeking interlocutory relief are expected to move with reasonable expedition. There is no doubt that it is infinitely preferable that disputes between parties, such as the dispute in this case as to the entitlement of the first plaintiff to exercise a statutory right of entry on the subject lands, be determined definitively following a plenary hearing as expeditiously as is reasonably possible, rather than that there be a temporary resolution in the form of interlocutory injunctive relief pending the trial of the action. As Keane J. pointed out, “it is of the essence of such relief that if it turns out that it has been wrongly granted one party has suffered an injustice”. It is also true, as counsel for the defendants submitted that, had these proceedings had been initiated in 2005, they probably would have been definitively resolved by now.
22. Taking an overview of this aspect of the matter, it seems to me that there is an element of inconsistency in the defendants’ approach, in contending, on the one hand, that the first plaintiff has not established an urgent need to enter the subject lands, while, on the other hand, contending that the first plaintiff should have moved five years ago. It is reasonable to surmise that, if the first plaintiff had moved five years ago and initiated proceedings, the position of the defendants would have been that the first plaintiff’s action was premature. There is a vast array of affidavit evidence before the Court on the progress of the Flagford-Srananagh project over the past six years and also of the dealings between the first plaintiff and the defendants. Adopting a similar approach to that adopted on the issue of urgency, unless the evidence indicates otherwise, I think the Court should assume that the first plaintiff has moved at the appropriate time having regard to the overall implementation of the project. Therefore, I am satisfied that there has not been delay on the part of the first plaintiff such as would bar its entitlement to the injunctive relief sought.
23. There is no basis for the defendants’ contention that, in this case, the grant of an interlocutory injunction would have the effect of disposing of the proceedings in their entirety. This is not a case in which, if the injunction is granted, the performance of a single act will conclusively and finally determine in favour of the first plaintiff its claim against the defendants, as would have happened in Jacob v. Irish Amateur Rowing Union Ltd.  4 IR 731, if the injunctive relief sought in that case had been granted. If the first plaintiff is granted the relief it claims, it will be entitled to enter on the subject lands and erect the Line and maintain it in position until the Court otherwise directs. The plaintiffs’ claim for permanent injunctive relief can go to plenary hearing. If the defendants are successful in their defence of the proceedings, the consequence will be that the first plaintiff will have to take down the Line and reinstate the subject lands. The defendants may, if they wish, counterclaim in the proceedings. They also have the prospect of enforcing the undertaking as to damages, which the first plaintiff is giving to the Court on this application, and of seeking an inquiry as to damages.
Invalidity of the Wayleave Notice
(b) the affidavit of Aisling Harpur, the first plaintiff’s Wayleave Manager in relation to the Flagford-Srananagh, project sworn on 12th February, 2010 (“three high tension conduct wires with a fibre optic communications cable and two other wires”) and
(c) the Wayleave Notice (“six continuous for double circuit lines”) and
(d) in her second affidavit sworn by Deborah Meghen, the Manager of Transmission Projects of the Flagford-Srananagh project on behalf of the plaintiffs, sworn on 30th March, 2010, in which there is a substituted description to correct Ms. Harpur’s description (“three high tension conduct wires together with a fibre optic communications cable and an earth wire”).
25. The mistake in Ms. Harpur’s affidavit having been corrected, it seems to me that the point made by the defendants is indeed based on a misunderstanding of the Schedule to the Wayleave Notice, the first seven paragraphs of which appear to be, and are, according to counsel for the plaintiffs, in standard form. Only the final paragraph is subject lands specific.
26. Another point raised on behalf of the defendants is that neither the Wayleave Notice nor the planning permission contains express reference to “a fibre optic communications cable”. The response of Ms. Meghen in her second affidavit to an assertion of the first defendant on affidavit that “the primary purpose of the communications component of the wire … is to facilitate the provision of services including, for example, broadband communication services” is that the assertion is incorrect. Ms. Meghen averred that the fibre optic communications cable is what is known as an OPGW (Optical Ground Wire) type of earth wire, which is an essential piece of apparatus connected with the wires which conduct the electricity and it serves the dual purpose of protecting the Line from lightening strikes and communications between the stations. The position of the first plaintiff is that that is the primary, and only, purpose for the fibre optic cable.
27. On the basis of the evidence, I am of the view that, in granting an injunction to the first plaintiff in the terms sought, the Court would not be sanctioning the carrying out of works by the first plaintiff on the subject lands which would be contrary to, or in excess of, what is authorised by the planning permission or contemplated by the Wayleave Notice. The defendants have not, in my view, raised a serious issue, technical or otherwise, as to the validity of the Wayleave Notice in the context of the clarification by the first plaintiff of the nature of the works which will be carried out on and over the subject lands.
Invalidity of the planning extensions
29. The basis on which it is contended that the most recent extension to the duration of the planning permission given by Roscommon County Council on 24th November, 2009 is invalid is that it fails to comply with Article 47 of the Planning and Development Regulations 2001, as inserted by the Planning and Development Regulations 2006, which provides:
30. The answer of the first plaintiff to the contention that the extension of the planning permission is invalid is that this is an attempted collateral challenge to the decision of Roscommon County Council, which is not a party before the Court, and it is a challenge which, in any event, cannot be entertained by the Court on this application because it could only be made by way of judicial review and within the strict time limit prescribed, which has expired.
31. Prima facie, by reason of the provisions of s. 50 of the Act of 2000 (as substituted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006), it is not open to the defendants to question the validity of the extension of the planning permission granted by Roscommon County Council on 24th November, 2009 in these inter partes proceedings. To do so, the defendants would have to proceed by way of application for leave to apply for judicial review in accordance with subs. (2) of s. 50 within the period of eight weeks prescribed in subs. (6) of s. 50 or such extended period as might be allowed by the Court in accordance with subs. (8) of s. 50.
32. It goes without saying that the first plaintiff must comply with the law and can only execute works for which planning permission is necessary where there is a valid planning permission in force when the works are executed. If the first plaintiff were to carry out works on the subject lands in contravention of the law, as Clarke J. pointed out in the Burke case, the proper course would be for the defendants to invoke the enforcement provisions of the Planning code. However, as a question has been raised in relation to the validity of the extension of the planning permission which this Court does not have jurisdiction to address in these proceedings, I consider that the Court, if granting relief, should qualify it by making it clear that the erection of the Line must be carried out in accordance with a valid planning permission.
Constitutional right to bodily integrity
34. In that submission, the defendants have wandered into the difficult area of statutory authority as a defence to a claim or counter-claim in tort, because any cause of action which the defendants might have against the first plaintiff for breach of their constitutional right to bodily integrity by reason of the erection of overhead power lines on the subject lands would be an action in tort (cf. the decision of the Supreme Court in Hanrahan v. Merck Sharpe & Dohme (Ireland) Ltd.  ILRM 629), which would raise very difficult factual and legal issues. As Lord Diplock stated in American Cyanamid Company v. Ethicon Limited  AC 396, it is no part of the Court’s function at this stage of litigation to try and resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. For present purposes, adopting the approach taken by Denham J. in the Harrington case but arriving at a different conclusion, I am not satisfied that the materials available to the Court disclose the defendants as having a real prospect of succeeding in their defence to the claim for a permanent injunction on the basis of infringement of their constitutional right to bodily integrity.
Conclusions on the issues to be determined on this application
36. Irrespective of the answer to that question, on the basis of the recent authorities which I have outlined in some detail earlier and, in particular, the decision of the Supreme Court in the Harrington case, I am satisfied that the first plaintiff has met the higher standard of showing that it has a strong case that it is likely to succeed at the hearing.
37. In relation to the remaining issues – the adequacy of damages and where the balance of convenience lies – I am satisfied that, in any event, even if the defendants were to successfully defend the first plaintiff’s application for a permanent injunction and demonstrate that an interlocutory injunction should not have been granted, ultimately, damages would be an adequate remedy for the defendants, again following the decision of the Supreme Court in the Harrington case. In that event, the defendants could enforce the undertaking as to damages which the first plaintiff is giving to the Court on this application.
38. Again, following the decision of the Supreme Court in the Harrington case, I find that the balance of convenience favours the granting, rather than the withholding, of an interlocutory injunction in the terms sought subject to the qualification referred to for reasons that are analogous to the reasons adumbrated in the judgment in that case.