Court of Appeal dismisses appeal where statutory notice procedures were followed but constitutionality was not properly challenged.

THE COURT OF APPEAL

2015, No. 196

Peart J.

Hogan J.

Cregan J.

BETWEEN/

ELECRICITY SUPPLY BOARD AND EIRGRID PLC.

PLAINTIFFS /

APPELLANTS

- AND -

KILLROSS PROPERTIES LIMITED

DEFENDANT /

RESPONDENT

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:

“.. survey: the route of a temporary diversion to part of the existing Dunfirth-Killegad- Rinawade 110kV line on the

company’s land and of cutting any tree, shrub or hedge which would obstruct or interfere with the survey. The temporary

diversion is required only as part of the repair and alteration works to the existing Maynooth-Ryebrook 110kV line and for

the duration of these works.”

7. The present proceedings were instituted by ESB and Eirgrid on 13th May 2013 in order to restrain the defendant from preventing

ESB securing access to the defendant’s lands for the purpose of carrying out these works (including initial surveys) associated with

the upgrade of these 110kV electricity transmission lines. On 5th June 2013 the company consented to the making of an interlocutory

order in the High Court. That order restrained the company, its servants or agents from preventing either plaintiff entering upon the

company’s lands and making such enquiries, investigations and examinations as they thought proper in relation to the repair /

alteration of the transmission lines.

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):

“53.—(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.

(a)…

(b)…

(4) If within seven days after the service of such notice the owner and the occupier of such land or building give their

consent to the placing of such line or the attaching of such fixture (as the case may be) in accordance with such notice

either unconditionally or with conditions acceptable to the Board, or to the authorised undertaker and approved by the

Board (as the case may require), the Board or the authorised undertaker may proceed to place such line across such land

or to attach such fixture to such building in the position and manner stated in such notice.

(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.”

The judgment of the High Court

19. In the High Court Hedigan J. rejected the argument that Killross was entitled to more extensive notice than that provided for in s.

53(3). He concluded:

“Because a new temporary line is proposed, a s. 53(3) notice was the correct way to proceed. However, as no pre-

existing rights would be affected the need for anything other than the statutory notice does not arise. The seven days

notice was sufficient and absent the landowner’s consent, the only right it had was to compensation. No authority,

statutory or otherwise, was opened to the Court which supported the proposition that the defendant was entitled to

notice of this notice.

The Act is clear. Seven days notice is provided and that is all that is required.

In any event, it is quite clear from the correspondence and the evidence that the defendant had ample notice of what

was intended. Indeed, in his evidence, Mr. McKenna [of Killross] conceded that on 1st May [2013] it was signalled that a

notice would issue.

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.”

20. In essence, therefore, Hedigan J. found that the company’s right to notice was that specified in s. 53(3) of the 1927 Act and that

he could not supplement those provisions, at least so far as the facts of this particular case are concerned.

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 [1982] 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 [1982] 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 [2002] 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 [2012] IESC 12, [2012] 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 [1985]

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. ([1985] I.R. 129, 150-151):

“The Court does not accept the contention that the payment of compensation, ex gratia, in an amount determined by the

[ESB] is to be equated with a right to compensation, lacking, as it does, the essential ingredient of the ultimate right to

have the amount assessed by an independent arbiter or tribunal.”

25. Immediately in the wake of this decision s. 53 of the 1927 Act was then amended by s. 1 of the Electricity Supply (Amendment)

Act 1985 by the substitution of a new s. 53(3) providing for a statutory right to compensation.

26. The decision in Gormley post-dated the earlier decision in O’Brien v. Bord na Móna [1983] 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 ([1983]

I.R. 255, 286-287):

“The 1946 Act does not appear to contain any set or fixed procedure for the giving of notice and the hearing of

objections or representations concerning the decision to acquire. In accordance with the [East Donegal] principles laid

down by this Court [in the parallel judgment upholding the constitutionality of the 1946 Act], it is necessary for Bord na

Móna to create and carry out procedures, in relation to the decision to acquire, which are fair and in accordance with

natural and constitutional justice…..

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.”

27. Two points can be made about this collection of case-law in general and with specific reference to the decision in O’Brien in

particular. First, the constitutionality of the relevant legislation had been challenged in all of these cases. In the first four cases the

procedure (or, at least, aspects of the procedure) governing the interference with the constitutionally protected right was found to

be unconstitutional. In the final case – O’Brien - the 1946 Act provided for no “set or fixed” system for the giving of notice in respect

of the decision to acquire the land. The Court stressed that in line with standard East Donegal principles it was necessary for the

Board “to create and carry out procedures” which were fair in that regard. The reference by Finlay P. in O’Brien to East Donegal and

the associated double construction test is really just a short way of saying that without the creation of such procedures the relevant

provisions of the 1946 Act would have been found to be unconstitutional on this account by reason of the fact that it allowed for the

acquisition of land without adequate notice having been given to the landowner concerned. The Court presumed, therefore, that the

Oireachtas had really intended that the 1946 Act should provide that fair notice should have been given to the landowner and,

accordingly, employing the double construction test, it opted for that construction as one which gave a constitutional construction to

the legislation.

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

[1970] 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.