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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Electricity Supply Board v. Harrington [2002] IESC 38 (9 May 2002) URL: http://www.bailii.org/ie/cases/IESC/2002/38.html Cite as: [2002] IESC 38 |
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1. This
is an appeal by the defendants/appellants, hereinafter referred to as
‘the defendants’, from the Order of the High Court (O Caoimh J.)
made on the 20th February, 2002. The first named defendant is the owner of the
lands in question and the second named defendant is the occupier pursuant to a
lease.
2. At
issue is an interlocutory injunction granted by the High Court. Application
having been made by motion on notice by counsel on behalf of the plaintiff, the
High Court made an order as sought by the plaintiff. The High Court ordered
that until the trial of the action or further Order the defendants their
servants or agents or anyone whosoever be restrained from obstructing or
preventing the plaintiff its servants or agents from entering upon the
defendants’ lands situate at Newtown Farm, Shandrum More, Bantry in the
County of Cork pursuant to its power conferred by s. 53(9), Electricity
(Supply) Act, 1927 as amended, for the purpose of erecting a 110 kV overhead
electricity line as defined by s. 46, Electricity (Supply) (Amendment) Act, 1945.
3. Against
that order of the High Court the defendants have appealed. Originally they
brought a motion seeking a stay on the said order pending the appeal, but by
consent the appeal was expedited and heard on the 8th March, 2002. Counsel on
behalf of the plaintiff indicated that the plaintiff would not proceed with the
line pending the determination of this appeal.
5. An
injunction restraining the defendants, their servants or agents, or anyone
whomsoever from preventing the plaintiff, its servants or agents from entering
on the defendants’ lands situate at Newtown Farm, Shandrum More, Bantry,
County Cork, for the purpose of erecting a 110 kV overhead electricity line
across and on the said lands together with a supporting angle mast.
6. Consequently,
the relief sought and granted on the motion, the injunction, is substantially
the issue in the action.
7. The
plaintiffs plan a new 110 kV electricity line to provide what is described as a
badly needed voltage injection into the West Cork/Kerry networks, relieving any
38 kV network
8. There
were a number of affidavits filed and facts disputed. However, some facts are
not in issue. On the 16th June, 1999, planning permission was granted by Cork
County Council (upheld by An Bord Pleanála on the 1st February, 2000)
for the electricity line. That permission allowed for some alteration in the
proposed location by agreement with the planning authority prior to the
development. It is alleged by the plaintiff and denied by the first named
defendant that a Wayleave Notice was served on her on the 19th April, 2000.
There were discussions between officials of the plaintiff and the first named
defendant about the line in the year 2000. There were discussions between
officials of the plaintiff and the second named defendant about the line in
December, 2000 and January, 2001. I am satisfied, leaving aside the detail of
the discussions, and the disagreement between the deposers of the affidavits
filed on some of these details, that in those discussions both defendants were
informed of the line and its placement. The second named defendant had raised
two concerns, one as to the effect of the location of the line and mast on his
proposed equestrian centre, and the second as to health concerns with regard to
electromagnetic fields. The second named defendant has applied for and
obtained a grant of outline planning permission (which was issued on the 29th
August, 2001) for an equestrian development on the lands.
9. It
is submitted by the plaintiff that at all times the officials of the plaintiff
indicated that it was not possible to move the mast from its present location.
Larry Donald, secretary of the plaintiff, deposed in his affidavit sworn on the
8th November, 2001:
10. Kieran
Cogan, a High Voltage Services Engineer of the plaintiff, swore on affidavit on
the 8th day of November, 2001. In paragraph 15 he deposed:
11. The
second named defendant filed two affidavits in the matter. He makes it clear
that he wishes to have a hearing by the Board of the plaintiff subsequent to
the serving of the Wayleave Notices on the 31st August, 2001. In his affidavit
sworn on the 8th December, 2001, the second named defendants deposed:
12. The
second named defendant is seeking a hearing by the Board of the plaintiff. He
stated in his affidavit sworn on the 15th February, 2002, paragraph 12:
13. The
Wayleave Notice was in the form of a letter. The Wayleave Notice was not in
contention on this appeal. Counsel for the defendants accepted that Wayleave
Notice was served on the 31st August, 2001. No procedural issue was raised on
this notice.
19. Counsel
on behalf of the defendants filed full written submissions and oral submissions
were also made. (a) In essence it was submitted that the relief sought on the
motion determines the action and the type of injunction granted at the
interlocutory stage in this case can only be made if there is no possibility of
success by the defendants. It was submitted that that is not the case, that
the High Court erred in determining that there was no substantive issue to be
tried, that there are serious issues to be tried. (b) It was submitted that
in the terms of the plaintiff’s letter and policy there is provision for
agreeing alterations in the line and that the letter of the 6th September, 2001
of the defendants’ solicitor was in terms that, if they have a right to
refuse, they refused, and if not, they wished the line and mast moved i.e. that
it was a conditional consent. (c) It was submitted that the defendants are
entitled to a hearing by the Board itself of their wishes as to the moving of
the line etc. (d) It was submitted that the plaintiff by its own procedures,
with the promise of proceedings in its policy, had raised a situation where the
defendants had a legitimate expectation to a hearing. (e) Even if the policy
of the plaintiff as set out in the document was not such as to give rise to a
legitimate expectation, it would be a factor for the court to consider. It
would, it was submitted, be inappropriate for the court to grant an injunction
to the plaintiff to enable it to act contrary to its own stated policy. (f)
It was submitted that an injunction is a discretionary remedy - it should be
granted only when a court of equity should interfere and that, in this case,
the plaintiff exercised power of entry in June, 2001 when they knew they had
not complied with the statutory procedure. Counsel for the defendants
submitted that there was a fair question to be tried. Reference was made to
Irish
Shell Limited v Elm Motors Ltd.
[1984] IR 200. Counsel submitted that the plaintiff was not entitled to the
interlocutory injunction in this case.
20. Counsel
for the plaintiff submitted that the only entitlement of the defendants was to
compensation and that the policy statement as to a hearing applies only if
there is consent to enter. Counsel submitted that the letter of the 6th
September, 2001 was a failure to consent. There had been previous meetings
between the defendants and the staff of the plaintiff. It was submitted that
where there is no consent to entry on the land the defendants are entitled to
compensation by agreement or in accordance with the provisions as established
by the 1985 Act. It was submitted that the letter of the 6th September, 2001
was a formal refusal by the solicitor for the defendants, and that once there
was such a refusal the plaintiff was entitled to act pursuant to s. 53(5) of
the 1927 Act as amended. There had been many communications between the
plaintiff and defendants which failed to find agreement. It was submitted that
it was urgent that the plaintiff proceed with the line, that the Act provided
for no hearing by the Board, that the balance of convenience lay, in view of
the urgency of the line and the public interest, in granting the injunction and
that the balance of convenience also favours the plaintiff, as in essence, the
defendants only argue for a right of hearing.
21. This
case raises for consideration s. 53 of the Electricity (Supply) Act, 1927 as
amended. The section, as amended, is as follows:
22. An
injunction is an equitable remedy. In an interlocutory injunction, such as is
in issue in this case, the court is not called upon to determine the issue of
the substantive action and indeed should resist coming to any such conclusion.
Rather it is for the court to determine the matter on the application for an
interlocutory injunction in a concise manner on the facts before the court.
23. The
first matters for decision are whether the materials available to the court on
the hearing for an interlocutory injunction fail to disclose that the
defendants have any real prospect of succeeding in their defence to a claim for
a permanent injunction at the trial. Is there a fair question to be tried?
Does doubt exist as to the plaintiff’s right? The High Court held that
there was no substantive issue to be tried. Against that finding the
defendants have appealed.
24. The
questions raised relate to the placing of the line. First there is the matter
of notice. The relevant law is to be found in s. 53 of the Electricity
(Supply) Act, 1927 as amended. The relevant portion is set out previously in
this judgment. Under that statute the plaintiff may place any electric line
across any land not being a street, road, railway or tramway, subject to the
provisions of s. 53. The provisions of s. 53(3) require prior notice in
writing of the placing of the line, the nature of the line, and the position
and manner in which it is intended to be placed or attached. Wayleave Notice
was given in this case on the 31st August, 2001 and no issue arises in that
notice. Thus this provision of s. 53(3) is met.
25. Next
there is the matter of consent. Section 54(4) provides for the situation where
consent by the landowners and occupiers to the placing of the line is given.
Section 54(5) relates to the position where there is no consent by the owner or
occupier. The learned High Court judge construed the letter of the solicitors
of the defendants dated the 6th September, 2001, as not giving consent but
rather as a refusal of consent. There was evidence upon which he could come to
this construction. I agree with this construction. The words of the letter
are plain, and include the following:
27. I
am satisfied that the defendants did not consent to the placing of the line.
Section 53(4) refers to unconditional acceptance. Clearly that does not apply.
The said section refers to “conditions acceptable to the Board”.
This does not arise in this case either. There were no conditions acceptable
to the Board.
28. In
this case the defendants did not give their consent to the line. Thus s. 53(5)
of the Electricity (Supply) Act, 1927, as amended, is the applicable law.
Under this statute law, the defendants having failed within the seven days to
give consent, the plaintiff may place the line across their lands, subject to
the defendants’ right to compensation. If those were all the facts of
the case then the matter would not need any further consideration and the
defendants would fail. The only right under the statute for the defendants is
compensation.
29. However,
the defendants were served with the Wayleave Notice dated the 31st August, 2001
and the defendants were referred to several matters in the Wayleave letter.
The Wayleave Notice letter referred to the fact that if within seven days from
the receipt of the notice the defendants gave consent to such entry then such
entry would be in terms of the Board’s policy endorsed on the back of the
notice. As no consent was given this statement is not applicable to this case.
31. Thus
the Wayleave Notice states clearly that in the absence of consent the plaintiff
will erect the line as authorised by statute. The statute is clear. Section
53(5) provides that if the owner or occupier fails within seven days to give
his consent, the plaintiff may place such line across the land. The only
proviso is the defendants’ right to compensation. Thus, the statute and
letter are clear that, consent not being given within seven days, the plaintiff
may place the line on the land. If these were the sole facts before the court
the issue would be clear - the defendants would not succeed on the first aspect
of the test in relation to an interlocutory injunction. The material would not
disclose that the defendants had a real prospect of succeeding in their defence
to a claim for a permanent injunction. There would be no fair question to be
tried. However, the Wayleave Notice referred to the absence of consent, and
stated:
32. The
words “In this event . . . ” refer to the absence of consent.
Thus, the succeeding words of the policy are applicable to such a situation.
That situation has also been specifically referred to in the statute law and
the Wayleave letter. Both state that in such a situation the plaintiffs are
entitled to proceed to lay the line. On those words, it is clear that the
defendants have no rights other than to compensation. However, the policy of
the plaintiffs raises the matter claimed for by the defendants, the issue of
the hearing.
33. The
defendants claim that they have a right to a hearing by the Board itself as to
their wishes in regard to the line. This right does not arise under the Act.
This right does not arise under the Wayleave Notice
per
se
.
It is claimed that this right arises out of the reference in the said notice
to and the policy of the plaintiff as set out on the rear of the notice.
35. It
is clear on the plain meaning of the words that this policy applies wherever
agreement cannot be reached between a landowner or occupier and the
Board’s staff. It is thus applicable to the defendants.
36. The
clause refers to “the Board will give all parties an opportunity to be
heard”. Counsel for the defendants submitted that the Board itself
should hear the defendants.
37. However,
I am satisfied that whatever opportunity is given to the defendants by this
policy document it is not a right to a hearing by the Board itself of the
defendants. The policy refers to several matters and indicates that action
will be taken. Thus, clauses 3 and 4 state:
38. No
one would expect the Board itself to do the above. A literal interpretation of
the policy would lead to an absurd conclusion. It is clear that the Board of
the plaintiff has indicated in its policy that it will ensure that such matters
are attended to. A logical and common sense approach, which I favour, means
that the Board has set out in its policy specific matters which will be done on
its behalf.
39. Similarly,
in relation to the opportunity to be heard. The policy provides that such
opportunity of being heard will be granted to the defendants. However, taking
the same construction of the word ‘Board’ as I do for other clauses
of the policy, this hearing may be conducted by a person or persons other than
the Board but under the direction of the Board. Officials of the Board would
be the probable persons giving this opportunity of being heard. Consequently,
I would dismiss the submissions that any such hearing should be heard by the
Board.
40. However,
the defendants are left with the stated policy as to an opportunity to be heard
by officials of the plaintiff as to the position and placing of the line
proposed in the Notice.
41. The
question then is whether this refers to an opportunity to be heard after the
Notice or whether it could refer to previous communications. The words of the
policy are clear - they refer to the placing of the line in the manner and
position proposed in the Notice. There is thus specific reference to the
Notice. This would appear to raise the possibility of the hearing to a time
after the Notice. However, a construction which is also open is that the
reference to the route is described in the Notice but is not determinative of
the time of the hearing. Thus, if there have been significant communications
previously on the proposed line, they may be considered as the hearing. There
is no doubt that there have been communications and meetings between the
parties. The position of the line and mast were the subject of the
communications. However, if the hearing by the officials is to take place
after the Notice then the decisions specifically referred to in the policy are
open; these include consent with conditions or the withholding of consent to
the placing of the line in the manner and position proposed in the Notice.
Thus, the policy may specifically envisage a change to the position of the line
in the Notice. That being the case it raises the interpretation that the
hearing should be after the Notice. However, the statute and Notice clearly
state that the line may be placed within seven days. There may be an inherent
contradiction here.
42. I
am satisfied that the defendants have raised a fair question to be tried. The
materials available to the court do not fail to disclose that the defendants
have any real prospect of succeeding in their defence as to the claim for a
permanent injunction. Even if the issue is only the right to a hearing, the
policy itself may envisage a possible change after such notice and hearing.
43. Thus,
it is necessary to proceed to consider the balance of convenience. If the
court holds that the defendants have a right to be heard further on the
position of the line there must be the consequence that there may be a
possibility that the placing of the line may be altered as stated in the
policy. However, the evidence of the plaintiffs is that at all times the
placing of this line and mast could not be altered and that the only relief for
the defendants was compensation, including compensation in relation to the
equestrian development. The statute law is clear that the defendants’
only right is to compensation.
44. In
considering the balance of convenience from the defendants’ viewpoint it
is clear that if they have a hearing and if there is a change in the line as a
consequence it would favour withholding the injunction. However, I am swayed
by factors such as the affidavits of the plaintiff as to urgency of the
electricity line, as to the deposed fact that the positioning of this line can
not be altered, as to the considerable degree of communication over the last
few years, and to the policy and clear words of the Act giving to the plaintiff
the right to place the line on the lands, subject to the defendants’
right to compensation.
45. 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.
46. Ultimately
damages would be an adequate remedy for the defendants. If it is held that
they had a right to be heard after the Notice, and if it were considered that
there was a real possibility of an alteration in the line as requested, these
would perhaps be factors additional to the right to compensation which already
exists. The level of compensation may be increased by the exact location of
the line and mast. It may well be that the level would be less if the route of
the line were altered as requested by the defendants. This means also that the
level may be higher if the route is not altered.
47. For
the reasons stated I would dismiss the appeal. Consequently, the interlocutory
injunction ordered by the High Court is extant.