New Appeal: Can ESB Chief Executive authorise company officers to perform statutory functions?

In this determination, Electricity Supply Board and Anor v Killross Properties Limited, the Supreme Court granted the ESB leave to appeal from the Court of Appeal’s decision in this case. The CoA held that the ESB Board unlawfully delegated its authority under s 9 of the Electricity (Supply) Act 1927 to its Chief Executive.



The Electricity (Supply) Act 1927 states:

9. 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.

In 2012 the ESB contacted Killross seeking permission to enter its land to perform survey work. In 2013, after extensive communications between the parties, when permission was not forthcoming, an officer authorised by the Chief Executive issued a notice under s 53(3) of the Electricity (Supply) Act 1927 of its intention to enter Killross’s land.

The ESB also issued High Court proceedings seeking an order permitting entry to the land. Killross counterclaimed on grounds, among others, that the Chief Executive did not have legal authority to authorise the officer to issued the notice: that s 9 only permits the Board to authorise officers to issue such notices.

The High Court rejected Killross’s argument on grounds that it was not properly before the court and on its merits.

The Court of Appeal (here) overturned that decision, holding that s 9 did not permit the Board to confer power on the Chief Executive to authorise officers to perform statutory functions. That only the Board can authorise officers to perform statutory functions.

The Supreme Court determined that the case raised any issue of general public interest which any affect how other public bodies perform their functions. The Court certified two questions:

(a) whether s.9 of the Electricity (Supply) Act, 1927 and/or that Act as a whole permits the authorisation of the board of its chief executive to exercise its power under that section; and

(b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal.

And in a second determination (here), the Court granted Killross leave for a cross appeal on:

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.



In April 2018, the Court published its judgment allowing the ESB’s appeal (post).

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  1. ESB v Killross: ESB Chief Executive can authorise company officers to perform statutory functions | SCOIRLBLOG

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