Supreme Court dismisses appeal against injunction allowing Electricity Board to erect 110kV line on disputed lands.

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

46/01

BETWEEN/

THE ELECTRICITY SUPPLY BOARD

PLAINTIFF/RESPONDENT

and

MARY HARRINGTON AND BRIAN HARRINGTON

DEFENDANTS/APPELLANTS

Judgment of Denham J. delivered on Thursday the 9th day of May, 2002.

1. Appeal

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. Injunction

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. Pending the Determination

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.

4. Plenary Summons

The plenary summons in these proceedings seeks the following relief:

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.

1) Damages.

2) Further and other relief.

3) Costs.

Consequently, the relief sought and granted on the motion, the injunction, is substantially the issue in the action.

5. New 110kV Electricity Line

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 capacity problems. This new line will greatly improve the quality and security

of the electricity supply in the West Cork/Kerry region. It is expected that domestic, commercial and industrial electricity supply

requirements will increase at a rate of 6% per annum over the next five years and that the new 110 kV line will be a great

benefit to the region.

6. Facts

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.

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:

“21. I say and am advised that many discussions have been held with both of the Defendants and their solicitor over the

past three and a half years and the impossibility of moving the Board’s line and in particular the location of the angle mast

has been explained at length. Further, the Board has at all times, both verbally and in writing, assured the Defendants and

their solicitor that they will be compensated for any agreed loss arising due to the presence or the building of the line.”

...

23. I say and am advised that the route chosen for this line is the best from an economic, technical and environmental

point of view.

24. I say and am advised that the building of this line across the first Defendant’s land is now a matter of urgency . . .”

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:

“15. I say that an ESB crew attended on the First Named Defendant’s land on the 29th of January 2001 and were refused

entry by the Second Named Defendant and his brothers. Later that day, I met the Second Named Defendant at the first

Defendant’s home. He stated that he did not accept that the development could co-exist with the line. I stated that in

this instance the line could not be raised or altered - in the event of an impact between the line and the proposed

development. I also pointed out as there was as yet no Planning Permission for the Equestrian development, the Board

could only guarantee that the Defendant would be compensated for any loss arising to him if the Equestrian Centre was

impacted by the presence of the line. I also pointed out that, in accordance with the ESB Acts, any dispute regarding the

amount of such compensation could be adjudicated upon by the property arbitrator. In the meantime, I stated that the

Board would reluctantly use its statutory powers to erect the line. I drew the second named Defendant’s attention to the

Board’s Policy Towards Landowners in respect of overhead lines ‘which guarantees compensation if a development is

impacted by a line’. . . .”

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:

“36. I say that at all material times I am not opposed to the routing of a line across my lands and all I seek is a minor

modification to the route whereby it would be altered in the order of 50 to 60 metres or so to move away from the

proposed equestrian centre which I intend to develop. I say that this is not unreasonable but I say that throughout the

affidavit the plaintiff contends that it is refusing even to consider moving the line and that it must be located to precisely

where it intends it to be, notwithstanding that the planning permission confers upon them an express power to move it

and seek only informally, the consent of the Local Authority and that it does not require a new application.”

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:

“. . . I am not seeking in any way to frustrate the Plaintiffs in the construction of this line across my land but only ask

that it be modified in the interest of allowing my development for which I have permission to construct, which permission

was granted subsequent to that of the Plaintiffs in this case, to proceed. I say that indeed I seek even less than that,

which is the opportunity to make appropriate submissions to the Board of the Respondent which has been represented is

available to me but which facility has been consistently denied.”

7. Wayleave Notice

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.

8. Wayleave Notice Letter

The Wayleave Notice was in the letter dated the 31st August, 2001. It stated:

“WAYLEAVE NOTICE

Electricity (Supply) Act, 1927, and Subsequent Amending Acts

Dear Mrs. Harrington,

I hereby give you notice that the Electricity Supply Board, pursuant to the powers conferred on the Board by Section 53

of the Electricity (Supply) Act, 1927, as amended by subsequent Acts, intends to place an electric line, as defined by

Section 46 of the Electricity (Supply) (Amendment) Act, 1945, above ground across your lands situate in the:-

Townland of Shandrum-More

Barony of Bantry

County of Cork

The nature of the said line and the position and manner in which it is intended that it be placed is set forth in the

Schedule hereto attached.

If within seven days from the receipt of this Notice you consent to such entry the same will be on the terms of the

Board’s policy endorsed on the back hereof. If you do not to so consent the Board will erect the line as authorised by

Section 53(5) of the Electricity (Supply) Act, 1927 as amended. In this event the Board will be prepared to act in

accordance with the same terms of the said policy, (excluding the provisions of Clause 6 thereof), and you will be entitled

to have compensation assessed by agreement or in accordance with the said Act.

I also give notice that the Electricity Supply Board, pursuant to the power conferred on the Board by Section 98 of the

Electricity (Supply) Act, 1941, intends after a period of seven days from the date of service of this Notice to lop or cut

certain trees, shrubs or hedges which obstruct or interfere with the electric wires or with the erection of such wires.

The location of the said trees, shrubs and hedges and the extent of the intended lopping or cutting is set forth in the

Schedule hereto attached.

Yours faithfully,”

9. Policy

The policy of the plaintiff was set out on the back of the letter. The policy as stated was:-

“POLICY TOWARDS LANDOWNERS FOR OVERHEAD LINES

1. Whenever agreement cannot be reached between a landowner or occupier and the Board’s staff as to the route of the

line or to the position of the masts, the Board will give all parties an opportunity of being heard and may consent, with or

without conditions, or withhold its consent, to the placing of the line in the manner and position proposed in the Notice.

...

3. The Board will, on request, cut up any trees that may be felled into transportable lengths and bring them to the

farmyard or other adjacent storage place.

4. The Board will dispose of rubbish, surplus clay and all debris from tree and hedge cutting.

5. The Board will be responsible for any injury to or loss of livestock arising from any action which can be directly

attributed to its employees or from the presence of the line.

6. The Board will make an annual payment as fixed from time to time by the Board for interference by lattice steel masts

and double wood poles on arable land.

7. (i) If in future the line interferes with any viable development of land other than cultivation of the soil and the Board is

so satisfied the Board will either:-

- raise or otherwise alter the line to permit the development in full, or

- pay for the loss caused by interference of the line with the development, or

- raise or otherwise alter the line to permit partial development and pay for the loss caused by interference of the

altered line with the development.

(ii) The agreement of the Board to alter the line or make a payment is subject to the co-operation of the landowner with

the Board in devising an arrangement of the line and of the development which reduces the overall cost to a minimum.

This necessitates an approach to the Board at the earliest stage to ascertain the limits for development of the kind

envisaged near the particular part of the line in question and to discuss the possibility of altering the line and probable

time required to carry out an alteration. The Board will give every assistance in planning the layout of a development

which impinges on the line as it stands or on any feasible alteration to it.

(iii) The total cost to the Board of altering the line and/or of payment is limited to that for the arrangement which gives

minimum cost. If the landowner prefers a more expensive arrangement he must bear the increase in cost.

(iv) Before commencing any alteration the Board will need proof that the proposed development will proceed and it may

require security for repayment of the cost of the alteration if the development is not carried out within a reasonable time.

(v) The basis of payment will be agreed in advance, but payment will be made only when development has reached an

advanced stage.

(vi) When a development is totally prevented payment will be made only when there is clear proof to the satisfaction of

the Board that a genuine and viable development has in fact been prevented solely by the presence of the line. A line will

not be taken as preventing development if it could be carried out on other available land subject to payment for any

consequent increase in cost.

(vii) Payment for the full loss may not be made if the Board had not been fully consulted in advance or if the land had

been purchased at a reduced price because it was encumbered by the line.

(viii) A decision to alter the line or make a payment may be subject to obtaining an easement in respect of the land

affected.

(ix) Any disagreement as to the amount of payment will be referred to arbitration.

...

9. The Board and the Irish Farmers Association have an agreed Code of Practice for survey, construction and maintenance of

overhead lines in relation to the rights of landowners. The above Policy is incorporated in this Code of Practice - copies

available in local E.S.B. or I.F.A. Offices.

10. Defendants’ Letter

On the Wayleave Notice being received by the defendants the solicitors for the defendants responded by letter dated the 6th

September, 2001. That letter stated:

“Dear Sirs,

We confirm that we act on behalf of the above named Brian Harrington and Mary Harrington, the occupier and owner

respectively of lands situate at Shandrum More, Bantry, County Cork.

Our clients have received Way Leave Notices from the ESB on Monday 3rd September, 2001 and dated 31st August 2001

relating to their lands at Shandrum More which advise that it is the intention of the Board to enter onto such lands for the

purpose of erecting a Steel Pylon and poles, together with high voltage power lines, as part of the Ballylickey - Bantry

110 kV Power line. We note that it is the intention of the ESB to enter onto such lands on Monday next, 10th September

2001 at 10.00 a.m. for the purposes of carrying out such works.

Please be advised our clients and each of them do not consent to the entry onto their lands by the ESB or to the entry

by any servant and/or agent of the ESB or by any authorised undertaking for and on behalf of the ESB for the purposes of

carrying out such works. In accordance with Section 53 of the Electricity (Supply) Act 1927, as amended, our clients

respectfully request that the Board of the ESB formally reconsider its intention to place a steel pylon/poles and high

voltage power line on and over our clients’ lands at Shandrum More. Our clients further respectfully request that the

Board of the ESB consider changing the route of the power line and the positioning of the Steel Pylon and poles (if any)

as set forth in the Way Leave Notices and Schedules therefore, so that the power line and such Pylon and pole(s) do not

impinge upon and interfere with our clients’ lands and their proposed development of such lands as a Tourist based

Equestrian Sentre, [sic] for which they have obtained Planning Permission.

In accordance with the stated policy of the ESB towards Landowners, as endorsed on the rear of the Way Leave Notices,

our clients wish to be heard and represented at any meeting of the Board held to so consider or reconsider the routing

and positioning of the power line, Pylon and poles.

In the meantime, please be advised that any entry, or attempt to enter onto the lands will be regarded as an act of

Trespass.

Yours faithfully,

CASEY & COMPANY”

Subsequently an ESB crew attempted to enter the lands and were prevented from doing so.

These proceedings were then commenced.

11. High Court Judgment

There is a counsels’ note of the judgment delivered by the High Court on the 15th February, 2002. It included the following:

“3. The learned Judge accepted the Plaintiff Counsel’s argument that the subsequent way-leave notices served by the

ESB on 31st August, 2001 meant that these were now the way-leave notices.

4. Essentially, the issue for determination before the Court was:

(a) the construction of the letter dated 6th September, 2001 from the Respondent’s solicitors to the ESB; and

(b) whether the aforesaid letter constituted a consent subject to conditions.

The learned Judge concluded that the aforesaid letter did not constitute a consent but rather a refusal of consent.

Reference was made to the words ‘do not consent’ in the body of the letter. In the circumstances, it was held by the

learned Trial Judge that section 53, sub-section (4) of the Electricity Supply Act, 1927, did not apply to this case.

5. The learned Judge also held that, in the way-leave notice, certain procedures and policies are to be followed. He found

that, because there had not been a consent on the part of the Defendants to the way-leave notice, paragraph 1 of the

Board’s policy towards landowners, as set out on the back of the way-leave notice, cannot apply and must be excluded.

6. The learned Trial Judge accepted the Plaintiff’s argument that the balance of convenience in this case rested with the

Electricity Supply Board and an injunction was granted in the terms of paragraph 1 of the Notice of Motion with costs of

the application reserved. On the Defendants’ application, the learned Trial Judge granted a stay on the interlocutory order

to Wednesday, 20th February, 2002.

7. In answer to a submission made on behalf of the Defendants that they had a legitimate expectation, having regard to

the policy statement printed on the rear of the way-leave notice, the learned Trial Judge held that the aforesaid notice

did not give such an expectation and, therefore, there had been no breach of any legitimate expectation by the Plaintiff.

In those circumstances, the learned Trial Judge did not consider the proposed entry onto the Defendants’ lands, which

was scheduled to take place on 10th September, 2001, as being unauthorised.”

12. Defendants’ Submissions

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] I.R. 200. Counsel submitted that the plaintiff was not

entitled to the interlocutory injunction in this case.

13. Plaintiff’s Submissions

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.

14. Law

(a) Electricity Line

This case raises for consideration s. 53 of the Electricity (Supply) Act, 1927 as amended. The section, as amended, is as

follows:

1. The Board . . . may subject to the provisions of this section . . . place any electric line [the expression electric line is

deemed to have had effect as meaning any wire, conductor . . . and including any post, pole, stay, erection or structure

supporting any one or more of the things hereinbefore mentioned] As defined by Section 46 of the Electricity (Supply)

(Amendment) Act, 1945. above or below ground, across any land not being a street, road, railway or tramway . . .”

3. Before placing any 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 or attach the fixture . . . and

giving a description of the nature of the line . . . and/of the position and the manner in which it is intended to be placed

or attached.

4. If within (7) As amended by Section 46(5) of the 1945 Act. days after such 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 in

accordance with such notice, either unconditionally or with conditions acceptable to the Board, the Board . . . may

proceed to place such line across such land . . . ;

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 subsection, 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.

S. 53 (5) of the Electricity (Supply) (Amendment) Act, 1985 was inserted as a consequence of E.S.B. v Gormley [1985] I.R.

129. In E.S.B. v Gormley Finlay C.J. recognised the benefits of an electricity line. He stated, at p. 150:

“Having regard to the social benefits of electricity and its contribution to the economic welfare of the State, the

uncontradicted evidence adduced in this case of the necessity for and value of this transmission line to the national

supply system leads to an inescapable conclusion that the power to lay it compulsorily is a requirement of the common

good.”

However, E.S.B. v Gormley established the right to compensation for such compulsory action. Consequently, s. 53 (5) was

inserted by the Electricity (Supply) (Amendment) Act, 1985.

(b) Injunction

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.

(i) The first issue is whether there is a fair question to be tried. In the circumstances of this case the court has to consider

whether the material before the court discloses that the defendants have a real prospect of succeeding on their defence to a

claim for a permanent injunction. If the material fails to disclose that the defendants have a real prospect of succeeding in their

defence to a claim for a permanent injunction then that determines the matter.

(ii) If however, the defendants have raised a substantive issue to be tried then the court should go on to consider the balance

of convenience.

(iii) It is no part of the court’s function at this stage of the litigation to resolve conflicts of fact.

(iv) Nor is it part of the jurisdiction to decide complex questions of law. These are matters for the trial.

(v) As to whether damages are an adequate remedy is a factor for the court.

(vi) All of the circumstances of the application should be considered in determining the application of this remedy, which is

rooted in equity.

15. Decision

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.

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.

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:

“Please be advised our clients and each of them do not consent to the entry onto their lands by the ESB . . .”

Further, the letter concluded with the words

“In the meantime, please be advised that any entry, or attempt to enter onto the lands will be regarded as an act of

trespass.”

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.

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.

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.

However, as to the position when there is no consent, as here, the Wayleave Notice stated:

“If you do not consent the Board will erect the line as authorised by section 53(5) of the Electricity (Supply) Act, 1927, as

amended.”

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:

“In this event the Board will be prepared to act in accordance with the same terms of the said policy, (excluding the provisions

of clause 6 thereof), and you will be entitled to have compensation assessed by agreement or in accordance with the said Act.”

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.

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.

The precise terms of the policy are:

“Wherever agreement cannot be reached between a landowner or occupier and the Board’s staff as to the route of the

line or to the position of the mast, the Board will give all parties an opportunity of being heard and may consent, with or

without conditions, or withhold its consent, to the placing of the line in the matter and position proposed in the notice.”

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.

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.

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:

“The Board will, on request, cut up any trees that may be felled into transportable lengths and bring them to the farm

yard or other adjacent storage place.

The Board will dispose of rubbish, surplus clay and all debris from tree and hedge cutting.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

16. Conclusion

For the reasons stated I would dismiss the appeal. Consequently, the interlocutory injunction ordered by the High Court is

extant.