THE SUPREME COURT
[Record Nos. 32/17 and 40/17]
The Chief Justice
O’Donnell J.
MacMenamin J.
O’Malley J.
Finlay Geoghegan J.
Electricity Supply Board and Eirgrid plc
Plaintiffs/Appellants
and
Killross Properties Limited
Defendants/Respondents
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on 18th day of April, 2018
1. This is an appeal and cross appeal from an order of the Court of Appeal (Peart J., Hogan J., and Cregan J.) of 21st December 2016. The relevant substantive order to which the appeal and cross appeal relate is an order setting aside the order of the High Court and granting in lieu thereof an order of certiorari quashing the notice served by the Electricity Supply Board (“ESB”) on Killross Properties Limited (“Killross”) on or about the 28th June, 2013 pursuant to s.53(3) of the Electricity (Supply) Act, 1927 (“1927 Act”) as amended and remitting the issue of damages to the High Court.
2. In the High Court there had been several related proceedings between the parties. Ultimately the High Court order, which was the subject of appeal to the Court of Appeal, was made pursuant to a written judgment delivered by Hedigan J. on 19th December, 2014, in these proceedings and a related judicial review application brought by Killross against ESB. In the plenary proceedings in the High Court the plaintiffs had sought certain declarations and injunctions and orders restraining Killross from interfering with their access to the lands in question. The High Court made restraining orders, granted injunctions, and made declarations in favour of the plaintiffs of their entitlement to enter the lands of Killross, including in exercise of the ESB’s powers pursuant to s.53 of the 1927 Act, as amended.
3. The order of the Court of Appeal was made for the reasons set out in written judgments of Hogan J. and Cregan J. delivered on 11th July, 2016. Each judgment concerns discreet issues, and the issues in respect of which leave was granted by this Court were determined in the judgment of Cregan J., with whom the other members of the court concurred.
Factual Background
4. The immediate cause of these proceedings (and the related judicial review proceedings) was the notice served by ESB on Killross pursuant to s.53(3) of the 1927 Act on 28th June, 2013. The notice was on ESB headed notepaper, took the form of a letter to a Mr. McKenna the Company Secretary of Killross, and was signed by Eoin Waldron, described as “Authorised Officer.” The notice informed Killross that the ESB pursuant to powers conferred by s.53 of the 1927 Act, as amended, intended to carry out certain temporary works across Killross’s lands as part of the repair and alteration works being carried out to existing specified 110kV lines from Maynooth. The lands of Killross over which the existing lines crossed were identified, as were the intended nature of the temporary works and the position and manner in which they were to be carried out. It is not in dispute that the temporary works were to divert electricity on a temporary alternative route for the duration of the proposed upgrade works on the existing 110kV transmission lines.
5. Mr. Waldron’s authorisation to issue and serve the notice pursuant to s.53 of the 1927 Act is a document signed by a Mr. Jerry O’Sullivan, described as “Executive Director Networks”, and addressed to the Chief Executive of ESB. It is headed “Authorisation to Sign Statutory Wayleave and Tree Cutting Notices” and is dated 3rd September, 2012. It states:-
6. As appears, it is a document addressed to the Chief Executive (of the ESB) seeking his approval and it is signed as approved by Mr. Pat O’Doherty, Chief Executive of the ESB. Mr. Waldron is one of the members of staff listed in the Appendix. The Board decision of 1973 referred to in the document was not before the courts. The recital of its contents as set out above is not in dispute. It is the 1973 authorisation which the Court of Appeal held to be ultra vires the ESB. The other facts which are relevant, in particular, to the issues on the cross appeal are the changes to the statutory functions and business of the ESB resulting from the liberalisation of the Irish electricity market and unbundling of various functions which were once concentrated in ESB. This is set out in great detail in the judgment of Cregan J. It suffices for the purposes of the issues before this Court to summarise them as follows.
7. ESB originally had a monopoly on the provision of electricity in the State. It was responsible for generation, supply, transmission and distribution, and also retail sale of goods. Various European Directives - commencing with 96/92/EEC - concerning common rules on the internal market in electricity required liberalisation measures to be taken. The Electricity Regulation Act 1999 (“the 1999 Act”) and subsequent Regulations including the European (Internal Market in Electricity) Regulations 2000 (S.I. No. 445/20000 (“the 2000 Regulations”), gave effect to these.
8. The 1999 Act established the Commission of Electricity Regulation as the independent body responsible for regulating the electricity industry in Ireland. It subsequently became the Commission for Energy Regulation and regulates the electricity, natural gas and water industries in Ireland (the “CER”) and is now the Commission for Regulation of Utilities (the “CRU”) . It has overseen subsequent measures for the liberalisation of the Irish electricity market. There are now four relevant functions in relation to each of which the CER had granted licenses at the time of the events giving rise to these proceedings as follows:-
i. transmission system owner (“TAO”): ESB is the licensed owner of the electricity transmission system,
ii. transmission system operator (“TSO”): Eirgrid Plc, a state owned entity established pursuant to statute and separate from the ESB group is the licensed operator of the transmission system,
iii. distribution system owner (“DAO”): ESB is the licensed owner of the electricity distribution system, and
iv. distribution system operator (“DSO”): ESB Networks Limited a separate company which is a wholly owned subsidiary of ESB is the licensed operator of the distribution system.
9. The works and notice giving rise to these proceedings relate to the role of ESB as TAO and to that of Eirgrid as TSO. It is not concerned with the distribution system. Nevertheless, ESB Networks Limited is of some relevance by reason of what is contended to be a separate and distinct management role from its functions as DSO.
10. As explained, in the affidavits sworn on behalf of ESB, as a condition of its TAO and DAO licenses respectively, it was required to designate a division of its business which would be functionally separate from all other parts of its business to carry out its functions under these licenses. The division is not a distinct legal entity from the ESB. Somewhat confusingly the ESB has designated this ring fenced business unit as “ESB Networks”. It is not a separate legal person or company. It is, however, a ring fenced business unit with dedicated staff. It forms part of ESB and must be distinguished from the distinct company, ESB Networks Limited, which is a subsidiary of ESB.
11. However, there is potential for further confusion by reason of the fact that the subsidiary company ESB Networks Limited has a dual role. First, it is the licensed DSO. Secondly, and contended by ESB to be entirely separate, ESB Networks Limited has entered into a contractual arrangement with ESB whereby it manages for ESB the ESB Networks business unit in the performance of ESB’s TAO and DAO functions.
12. Mr. Waldron is an employee of ESB working within the ESB Networks division. He and other ESB staff working within the Networks division are managed by ESB Networks ltd in the performance of ESB’s TAO and DAO functions. The arrangement is approved by the CER.
13. The functions of ESB as TAO and Eirgrid as TSO are set out in the 1999 Act and the 2000 Regulations, referred to further below. They were also required to enter into an agreement pursuant to the 2000 Regulations and as part of their obligations as TAO and TSO license holders respectively. This agreement is the “Infrastructure Agreement” dated 16th March, 2006. Insofar as relevant to the issues on the cross appeal, it is considered below.
Relevant Legislative Provisions
14. ESB was established pursuant to s.2 of the 1927 Act, which insofar as relevant provided:-
“2.—(1) As soon as may be after the passing of this Act a board to be styled and known as the Electricity Supply Board (in this Act referred to as the Board) shall be established in accordance with this Act to fulfil the functions assigned to it by this Act.
(2) The Board shall be a body corporate having perpetual succession and may sue and be sued under its said style and name.
(3) The Board shall consist of a chairman and such number (not being less than two nor more than six) of other members as the Executive Council shall from time to time determine.”
Subsection (3) has subsequently been amended to increase the membership, but nothing turns on that.
15. Section 1 defines “the Board” as meaning the “Electricity Supply Board appointed under this Act”
16. Section 9 of the 1927 Act which is central to the issue on the appeal and has never been amended provides:-
“The Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf.”
17. Section 53(1) and the first paragraph of subs (3), which again have not been the subject of amendment, provide:-
“(1) The Board and also any authorised undertaker may, subject to the provisions of this section, and of regulations made by the Board under this Act place any electric line above or below ground across any land not being a street, road, railway, or tramway.
(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.”
18. Certain provisions of the European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000) are also relevant to the cross appeal and are set out and considered below.
Leave to Appeal
19. This Court in the Determination [2017] IESCDET 59 on 19th June, 2017, granted leave to the appellants to pursue the following issues on appeal:-
20. In a second determination of the same date [2017] IESCDET 60 leave was granted to Killross to pursue the following issue by way of cross appeal:
“Whether, in all the circumstances of the case and having regard to the evidence, the Electricity Supply Board was precluded from exercising its power under s.53 of the Electricity (Supply) Act 1927, as amended, as a result of an infrastructure agreement with EirGrid and having regard to the respective licences granted to both the Electricity Supply Board and EirGrid by the Commission for Energy Regulation under s.14(1)(f) of the Electricity Regulation Act, 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation, 2000 transposing the internal market in electricity directives.”
Appeal
21. It is proposed to consider the issues on the appeal and cross appeal separately and successively. In relation to the appeal, the appellants submit, without prejudice to their contention, that the issue as to whether s.9 of the 1927 Act permits the ESB to authorise its CEO to exercise the statutory power of the ESB under that section was not properly before the High Court, that this Court should now determine that issue of statutory interpretation. It is therefore firstly to that issue that I turn and consideration of the judgment of the Court of Appeal on what is alternatively termed the interpretation or delegation issue.
Section 9 of the 1927 Act
22. In the Court of Appeal it appears that Killross made three distinct submissions against the validity of the s.53 notice. Cregan J. rejected the first two and then turned to the final argument which at para. 70 he characterised as being that “the appointment of Eoin Waldron as Authorised Officer for the purposes of serving s. 53 notices was an unlawful delegation of powers under s. 9 of the 1927 Act and that therefore the notice is unlawful”.
23. Cregan J. later commencing at para. 84 of his judgment identified the issue as being one of sub-delegation. At paras. 84 – 86 he stated:-
“84. One of the powers which the Legislature has delegated to the Board is the power under s.53 to issue wayleave notices. Under s. 9 the Board may exercise these s.53 powers through any of its officers or servants authorised by the Board. The question is whether, as a matter of statutory interpretation, the Board can authorise one of its officers to delegate this power to another officer.
85. Section 9 is drafted in simple and straightforward language. It consists of one sentence. It contains a simple concept, i.e., that the Board may authorise any of its officers or servants to exercise any of the powers of the Board. Therefore the Board could appoint its Chief Executive or Mr. Waldron or others to carry out s. 53 notice powers.
86. The question which then arises is whether this delegation by the Board of its powers and functions under the Act to its Chief Executive, with the authorisation that the Chief Executive could in turn delegate those powers and functions to such other persons as he deemed appropriate, is a matter which is permitted by s. 9 of the 1927 Act.”
24. The judgment then sets out at paras. 87 – 95 inclusive the reasons for which as stated “such a sub-delegation is not permitted by the Act”. The conclusion reached on this issue is set out at paras. 96 and 97:
25. The primary submission of the appellants is that there was no sub-delegation in the authorisation of Mr. Waldron by the Chief Executive. They submit that the 1973 authorisation by the Board to the Chief Executive was to exercise its powers under s.9; that the Chief Executive did not delegate the s.9 power further but rather exercised it in authorising Mr. Waldron to serve notices under ss. 53(3) and 98(2) of the 1927 Act.
26. They submit that s.9 must be interpreted in accordance with the words used in the context of the 1927 Act as a whole. Further, the “Board” referred to in s.9 is the statutory corporation known as the Electricity Supply Board in accordance with ss. 1 and 2(1) of the 1927 Act. They submit that the Court of Appeal failed to take into account this fact, and draw attention to an incorrect reference to the “Board of ESB” in para. 96 of the judgment. They rely on the breadth of the discretion given to the ESB by s.9 by providing that “the Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) … through or by any of its officers or servants authorised by the Board in that behalf”[emphasis added]. They also rely by 0reason of the words “through or by any of its officers…” on the principle of interpretation that effect should be given, if possible to all the words used and refer in this connection to David Dodd, Statutory Interpretation in Ireland (Tottel Publishing, 2008) at para. 5.25:-
“It follows from the pre-eminence of the text, that it is presumed that words are not used in a statute without a meaning and are not tautologous or superfluous and that effect must be given, if possible to all the words used. The legislature must be deemed not to waste its words or say anything in vain.”
27. The appellants also submit that the power of the Board pursuant to s. 9 of the 1927 Act must be construed in the context of the wide ranging powers, functions and duties in nature, range and geographical scope conferred on the Board by the 1927 Act. They argue that s.9 in that context could not have been intended to mean that the Board in the sense of its members (Chairman and a limited number of persons) would have to authorise every individual officer or servant through or by whom any of the powers, functions or duties imposed by the Act on the Board were to be exercised.
28. Kilross principally seeks to rely upon the reasoning of the Court of Appeal. Killross contends that s.9 means that the Board in the sense of its members must authorise any officer or servant of the ESB who is going to exercise powers or functions of the ESB under the 1927 Act. They submit that this follows from the nature and scope of the power conferred by s.9, and that the Board has the same meaning in all three cases in section 9 of the 1927 Act.
Discussion and Conclusion
29. The Court of Appeal judgment appears to consider this to be a case of delegation and sub-delegation. Paragraph 84 and 96 of the judgment set out above states that the Legislature had “delegated to the Board” a “power under s.53 to issue wayleave notices.” I respectfully disagree with this characterisation of s.53 of the 1927 Act. The Oireachtas in enacting s.53 has conferred, by statute, a power on the ESB to place lines across the lands of others. The Oireachtas had no such power. By enacting s.53 it did not delegate a power which it already had.
30. Similarly, by enacting s.9 the Oireachtas has conferred on the ESB the power to exercise its statutory powers and perform its statutory functions (other than the making of orders) through or by officers or employees authorised by it to do so. The ESB is a legal person. It can only act or exercise its statutory powers through or by a natural person or group of persons. Section 9 identifies those persons by or through whom the ESB may act.
31. The appellant’s submission that the Chief Executive in authorising Mr. Waldron in 2012 to exercise the powers and functions of the ESB under ss. 53(3) and 98(2) of the 1927 Act was not sub-delegating a power already delegated to him, but rather exercising the power of the Board or the ESB pursuant to s.9, which he had been authorised to do by the Board decision of 1973, appears to me to be correct. The 2012 authorisation records the Board Decision of 1973 as having “authorised the Chief Executive to delegate to nominated officers the authority to exercise the powers and functions of the Board under Section 53(3). . .”. It is an authorisation by the Board pursuant to s.9 to the Chief Executive to exercise one statutory power of the ESB, namely, that conferred by s.9 which is to nominate or identify and authorise the officers by or through whom the ESB may exercise certain different statutory powers and functions, including the duty imposed by section 53(3). The Chief Executive in purporting to exercise the ESB’s power pursuant to s.9 is not delegating that power to any authorised officer.
32. It follows from this conclusion that the statutory interpretation issue is as identified in the Determination of this Court, namely, whether s.9 permits the Board to authorise its Chief Executive to exercise its statutory power under that section.
33. Applying the well established principles of statutory interpretation, I have concluded that s.9 does permit the Board to authorise its Chief Executive to exercise its power under that section or, to put it another way, does permit ESB to exercise its s.9 power through or by its Chief Executive once he is so authorised by the Board. That interpretation appears to follow from the words used by the Oireachtas in the context of the 1927 Act where the Board is ESB, the body corporate; the section authorises the exercise of “any powers” through or by officers so authorised with one specific restriction, namely, the making of orders, and having regard to the wide-ranging powers, functions and duties of the Board, in the sense of ESB, the statutory body corporate under the 1927 Act. As s.9 expressly restricts the exercise of the power to make orders through or by officers but subject only to that restriction, permits the exercise of “any power” through or by an officer so authorised. There is nothing in the words used by the Oireachtas in s.9 to suggest that the term “any power” does not include the s.9 power itself.
34. I accept Killross’s submission that the Board referred to in all three places in s.9 must have the same meaning but as it is defined as meaning ESB, the body corporate established by the Act, I do not consider it takes their submission further or negates the interpretation reached above.
35. By reason of the conclusion reached on this issue, it is unnecessary to consider whether this issue was properly before the High Court and/or the Court of Appeal.
36. Accordingly, I have concluded that the appellants are entitled to succeed on the appeal.
Cross Appeal
37. As set out above, the issue upon which leave was granted to Killross to cross appeal is:
“Whether, in all the circumstances of the case and having regard to the evidence, the Electricity Supply Board was precluded from exercising its power under s.53 of the Electricity (Supply) Act 1927, as amended, as a result of an infrastructure agreement with EirGrid and having regard to the respective licences granted to both the Electricity Supply Board and EirGrid by the Commission for Energy Regulation under s.14(1)(f) of the Electricity Regulation Act, 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation, 2000 transposing the internal market in electricity directives.”
38. The cross appeal arises from the rejection by the Court of Appeal of additional submissions against the validity of the s.53(3) notice, the subject of these proceedings. In the Court of Appeal, Cregan J., recorded the submission relevant to the issue on which leave is granted at paragraph 38(i) as being:
“(i) That ESB, in effect, delegated its power and/or discretion to issue wayleave notices to Eirgrid and/or ESB Networks Ltd to such an extent that it no longer has any ability to exercise a discretion as to whether to issue a wayleave notice or not;”
39. There was an additional ground considered and rejected by Cregan J. which was fact-specific, and whilst Killross has sought to advance submissions in relation thereto, the appellants submit it is not covered by the issue on which leave was granted. That ground, as set out at paragraph 38(ii) of the judgment of Cregan J. was:
“(ii) That Mr. Waldron is, in effect, directed and controlled by ESB Networks Ltd and therefore he is not in a position to exercise his power to issue a wayleave notice for on behalf of ESB;”
40. Each of those grounds was rejected by Cregan J. The alleged delegation to Eirgrid was rejected following a consideration of Clauses 7.6.2(b) and 7.6.4 of the Infrastructure Agreement. Cregan J. considered the submission of Kilross to be incorrect, as a matter of law, and concluded at the end of paragraph 62 that:
“The authority to issue wayleave notices was and always remained with the Board both under the 1927 Act and indeed under clause 7.6.4 of the Infrastructure Agreement with Eirgrid.”
41. Similarly, Cregan J. rejected any delegation to ESB Networks Limited from a consideration of the Asset Management Agreement made on the 22nd December, 2008, between ESB and ESB Networks Limited. Having considered Clause 2.1 of that Agreement, he concluded at paragraph 56:
“It is clear that this Asset Management Agreement is an agreement whereby ESB Networks Limited, a separate limited liability company, agrees to manage and direct the ESB Networks Business Unit in the performance by that business unit of the Board's responsibilities as DAO and as TAO. However, ESB Networks Limited is carrying on the business of managing and directing the ESB Networks Business Unit of the ESB, in effect, as a manager for and on behalf of ESB. The functions of ESB Networks Limited which they carry out pursuant to this agreement are entirely separate and distinct from the other functions they carry out in their other roles as ESB Networks Limited. The Asset Management Agreement is a specific management contract which it has entered into with ESB to manage a particular unit within ESB. There is no legal delegation of ESB's authority to issue wayleave notices to ESB Networks Limited contained either expressly or impliedly in this agreement.”
42. Ultimately, on this ground of challenge to the validity of the s.53(3) notice Cregan J. concluded at paragraph 64:
“In summary, therefore, the argument that ESB has delegated its statutory power to issue wayleave notices to Eirgrid and/or ESB Networks Ltd is wrong as a matter of law and is misconceived. The appellant's argument that Eirgrid has a right to issue wayleave notices and, in effect, is directing ESB Networks Ltd to issue wayleave notices is also incorrect as a matter of law.”
43. Cregan J. also rejected the submission on the facts herein:
“that Mr. Waldron was not in reality an employee of ESB, but rather that he was controlled and directed at all times by ESB Networks Ltd, that ESB Networks Ltd directed him to sign the wayleave and therefore the wayleave could not be authorised by ESB.”
44. Having considered the relevant facts, including the evidence given by Mr. Waldron that he served the notice on ESB’s behalf without a direction from any other person or party, he concluded that Killross’s argument under this heading was not sustainable.
Submissions and Discussion
45. Killross’s submission to this Court appears slightly different. Killross accepts that ESB retain the statutory power conferred by s.53 of the 1927 Act. However, it submits that by a combination of the provisions of the 2000 Regulations, ESB’s TAO licence and the Infrastructure Agreement with Eirgrid, it has abdicated its discretion to use it.
46. The appellants rely upon the acceptance by Killross in this Court that ESB has retained the statutory power pursuant to s.53 of the 1927 Act and its acceptance of the express retention by ESB of its power to issue wayleave notices pursuant to Clause 7.6.4 of the Infrastructure Agreement, as held by the Court of Appeal. The appellants rely upon the statutory power conferred on the ESB by s.53(1) and the duty imposed to issue notices prior to exercise of the power under s.53(3). In addition, they rely upon the new unbundling regulatory scheme put in place by the EU provisions, the 1999 Act, the 2000 Regulations and the licences granted by the CER which require the arrangements entered into, including the Infrastructure Agreement, and its approval by the European Commission. They also submit that there has not been any unlawful delegation by ESB of its discretion under s.53(3) of the 1927 Act as amended to either Eirgrid or ESB Networks Limited, and the absence of any authority cited by Killross for that proposition.
47. The starting point of these competing submissions must be s.53 itself. Section 53(1) remains without amendment since the enactment of the 1927 Act. Insofar as relevant, it provides:
“The Board … may, subject to the provisions of this section, … place any electric line above or below ground across any land … .”
48. The above statutory power given to the ESB is clearly one to enable it to perform the statutory functions imposed on it by the 1927 Act. As already pointed out, at the time insofar as relevant, they included both the ownership and operation of transmission and distribution systems. Under the new unbundling regime ESB retains the ownership of the transmission and distribution systems but no longer is responsible for their operation.
49. Similarly, the first paragraph of s.53(3) remains unaltered since enacted in 1927. Insofar as relevant, it provides:
“(3) Before placing an electric line across any land … under this section the Board … shall serve on the owner and on the occupier of such land … a notice in writing stating its … intention so to place the line … and giving a description of the nature of the line … and of the position and manner in which it is intended to be placed…”
50. The notices served pursuant to s.53(3) are what are referred to as the wayleave notices. Whilst the discretion has been referred to as a discretion to serve a wayleave notice, having regard to ss.53(1) and (3), it appears that more precisely the discretion, if it be in truth a discretion, is as to whether to make use of the statutory power conferred by s.53(1) to place lines across the lands of others. If it is considered necessary to use that power then it can only be lawfully utilised if a s.53(3) notice is first served. Thereafter, in accordance with s.53(4), if the owner and occupier consent to the placing of the line in accordance with the notice either unconditionally or with conditions acceptable to the ESB, it may proceed to place the line across the land. If no such consent is forthcoming then pursuant to s.53(5), the line may be placed subject to the entitlement of the owner or occupier to be paid compensation either agreed or assessed, in default of agreement, under the Acquisition of Land (Assessment of Compensation) Act, 1919.
51 Undoubtedly, as already stated, the statutory functions of the ESB have changed since the unbundling arrangements were put in place, and, in particular, the 2000 Regulations. The s.53(3) notice at issue in these proceedings was, however, connected with an uprate project requested by Eirgrid on transmission lines of which ESB remains the owner. Eirgrid is the transmission system operator. The respective functions and duties of each are defined in the 2000 Regulations, the licences granted to each by the CER (now the CRU) and the Infrastructure Agreement which Eirgrid and ESB were obliged to enter into pursuant to Regulation 18(1)(a) of the 2000 Regulations.
52. Regulation 8(1) of the 2000 Regulations sets out the exclusive functions of Eirgrid as a transmission system operator. These include at para. (a) “to operate and ensure the maintenance of and if necessary develop a safe, secure, reliable, economical and efficient electricity transmission system …”. Regulation 8(2) transfers to Eirgrid certain statutory functions of ESB pursuant to the 1927 Act, but does not transfer any part of its functions or powers pursuant to s.53.
53. Regulation 19 sets out the functions of the ESB as transmission system owner. Insofar as relevant, it provides:
“19. The transmission system owner shall -
(a) as asset owner, maintain the transmission system and carry out construction work in accordance with the transmission system operator's development plan, subject to the provisions of Regulation 18(3),
(b) in accordance with the infrastructure agreement with the transmission system operator under Regulation 18 implement any other works required under the development plan, and carry out any other requirement applicable to it under these Regulations, having due regard for the environment,
…
(g) comply with any regulations or directions applicable to it made by the Commission under these Regulations or under the Act of 1999, and
(h) otherwise comply with the licence issued under section 14(1)(f) of the Act of 1999.”
50. Regulation 18(3) insofar as relevant provides:
“(a) The infrastructure agreement shall provide for the Board, as asset owner, to maintain the transmission system and carry out construction work in accordance with the transmission system operator's development plan, using its own resources and outsourcing to contractors.
(b) …
(c) …”
54. It must be recalled that on this particular project, the transmission lines were already across Killross’s lands. The s.53 statutory power was needed in order to place a temporary diversion line as part of the uprate project. At a more general level the height of the submission by Killross appears to be that because the ESB as TAO is obliged, pursuant to the 2000 Regulations, its licence, and the Infrastructure Agreement, to carry out maintenance and construction work in accordance with Eirgrid’s development plan, it is abdicating its discretion to make a decision to use its statutory power to place lines across the lands of another.
55. That does not appear to me to be a correct analysis. It is true that the ESB is now obliged, pursuant to the 2000 Regulations, its TAO licence and the Infrastructure Agreement to maintain the transmission system owned by it and carry out related construction works in accordance with Eirgrid’s development plan. This may require particular work to be done by the ESB as in this instance the project identified in the project agreements relating to the Maynooth 110 kV lines uprate. The consequence of ESB being bound to complete the required project may be, as in this instance, that it needs to use its statutory power pursuant to s.53(1) in order to do so. However, the project is being done by the ESB and relates to transmission lines of which it is the owner. If the ESB requires to use its s.53(1) statutory power to complete the project as required by Eirgrid then it must serve a notice under s.53(3). However, taking into account the regulatory framework it remains the ESB which ultimately decides to serve the notice pursuant to s.53(3) to permit it complete the project.
56. In summary, the current position appears to be that the ESB is bound as TAO to do certain maintenance and construction works under Eirgrid’s development plan. The carrying out of that work by the ESB may require it to use its s.53(1) statutory power to place a line across the land of a third party in order to lawfully complete the works which now form part of its statutory function. Prior to exercising that statutory power it is bound (as it always was) to serve a notice under section 53(3).
57. Section 53 remains a statutory power which the ESB continues to use for the purpose of performing its statutory functions. What has been altered by the unbundling in the electricity market are the functions which are now carried out by the ESB and how the particular work which it is required to do falls to be determined. However, it remains the position that the work which it is doing is work being carried out by its own internal unit, ESB Networks Division (not the separate company, ESB Networks Limited), and it is using ESB’s statutory powers to carry out that work and it is the ESB which serves the notices required by s.53(3).
58. Accordingly, even taking into account the differing submission made to this Court, I have concluded that the Court of Appeal was correct in determining that the performance of this project by the ESB in accordance with the current regulatory framework and the Infrastructure Agreement does not either constitute an unlawful delegation of its statutory power pursuant to s.53 or an abdication of its discretion to use that statutory power to either Eirgrid or ESB Networks Ltd. It remains the ESB which is using its statutory power pursuant to s.53(1) and for that purpose serving the notice pursuant to s.53(3).
59. Finally, the appellants appear to be correct in their submission that any consideration of the individual position of Mr. Waldron as an employee of ESB, working within the ESB Networks Division, which in turn is managed by ESB Networks Limited, is outside the scope of the issue upon which leave was granted. Notwithstanding, I have considered the issue and its appears to me that the Court of Appeal was correct in its analysis of the evidence of Mr. Waldron accepted by the High Court and the management agreement arrangements between ESB and ESB Networks Limited, and in its conclusion that Mr. Waldron was at all material times acting for and on behalf of the ESB in signing and serving the wayleave notice on the 28th June, 2013 pursuant to s.53(3) of the 1927 Act.
Relief
60. It follows from the conclusions reached in this judgment that the appeal should be allowed and the cross-appeal dismissed. It further follows that so much of the order of the Court of Appeal as allowed, in part, the appeal from the High Court and set aside the order of the High Court which granted an order of certiorari of the notice dated the 28th June, 2013 should be vacated and in lieu thereof the appeal from the High Court dismissed in its entirety.
61. The Court will hear the parties on any variation sought to the costs orders made by the Court of Appeal which follows from this judgment and in relation to costs in this Court.
