ESB v Killross: ESB Chief Executive can authorise company officers to perform statutory functions

In this judgment, Electricity Supply Board & Eirgrid Plc v Killross Properties Ltd, the Supreme Court held that “through or by any of its officers” in s 9 of the Electricity (Supply) Act 1927 permits the ESB Board to authorise its Chief Executive to exercise any of the Board’s powers.

 

S 9 of the 1927 Act:

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.

 

Background

S 53 of the 1927 Act permits the ESB Board or any authorised undertaker to “place any electric line above or below ground across any land not being a street, road, railway, or tramway”. S 53(3) requires that the Board or authorised undertaker issue a written notice to the landowner of the works to be carried out, before commencement.

A Board decision of November 1973 authorised the Chief Executive to delegate the authority to sign s 53(3) notices to nominated officers. In 2012, the Chief Executive authorised Mr Waldron, an ESB employee, to sign s 53(3) notices.

In 2013, the ESB issued an s 53 notice informing Killross that it intended to carry out works to lines across Killross’s land. Waldron signed the notice. After objections, the High Court granted the ESB injunctions and restraining orders against Killross. Killross appealed to the Court of Appeal.

The Court of Appeal alowed Killross’s appeal, finding that the Chief Executive’s authorisation of Waldron to sign the s 53(3) notice was a sub-delegation of powers which was not permitted by the 1927 Act.

The ESB applied to the Supreme Court for leave to appeal. The Court (post) determined that the ESB had raised an issue of general public importance and granted leave on the 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.

 

Supreme Court

Finlay Geoghegan J wrote the judgment for a unanimous five judge panel. She summarised the ESB’s argument:

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.

Allowing the ESB’s appeal, Finlay Geoghegan J cited David Dodd, Statutory Interpretation in Ireland (Tottel Publishing, 2008) [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.

 

Finlay Geoghegan J stated that the words through or by in s 9 of the 1927 Act permits the ESB to exercise its powers through the Chief Executive. Therefore, in authorising Waldron to issue s 53(3) notices, the Chief Executive was exercising the ESB’s statutory power not sub-delegating his own.

Given her finding on that question, Finlay Geoghegan J stated that it was not necessary to determine whether that issue was properly before the High Court.

 

 

 

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  1. New Appeal: Can ESB Chief Executive authorise company officers to perform statutory functions? | SCOIRLBLOG

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