In an unprecedented show of disclosure, Minister Rabbitte’s Department of Communications, Energy and Natural Resources published a document on the internet which not only shared their inner fears about public opposition to their plans for obtaining planning permission for the Grid25 projects, but also included an excellent Opinion from the learned Michael Conlon SC.
This is neither a new document nor a novel concept. The signs prohibiting entry to EirGrid are proof of that. I remember seeing it on Boards.ie in 2011, but that was before the pylon menace, and it did not interest me. It has, however, recently reappeared, and this reappearance has caused a fair amount of discussion and consequent uncertainty regarding the right of EirGrid employees to enter your land. I shall do my best to explain the import of the Conlon Opinion.
When seeing this document for the first time, a reader would feel that finally the government is taking Aarhus seriously, and is sharing relevant and valuable information. Alas, the disclosure of this document has nothing to do with Aarhus, but is rather the result of an FOI request made in 2011. In other words, it was a compelled disclosure rather than a voluntary act of a government wishing to properly inform its citizens. Having said that, it was quite surprising to find the legal Opinion, which would ordinarily be a privileged document and therefore exempt from FOI disclosure in terms of Section 20(1) of the FOI Act.
Put simply, the concept of privilege in the law of evidence refers to the right of a party to refuse to allow certain information or types of information to be used as evidence in any proceedings. The most important of these is legal privilege, which allows a client to forbid the publication of or use as evidence any communications between that client and his/her lawyer, on the grounds that a person must be able to freely confide in their lawyer without fear of these confidences being shared with a third party. This very important privilege is protected by the above mentioned Section 20(1).
By publishing this Opinion on its website, the Department has surrendered any claim to legal privilege as would usually apply to communications between lawyer and client. In other words, as the client of the lawyer, by broadcasting the communication to a private third party (in this case the WWW = whole wide world), the Department cannot protest against that communication being used, by way of example, in any future litigation.
Perhaps the Department thought that as the cat was out of the bag, it might as well publish the document on its website? However, to give credit where credit is due, it was very nice of the Department to do that, even if it was tucked away in the recesses of that website. Alternatively, somebody lost their job for publishing the Opinion (assuming that they were caught – perhaps it is one of EirGrid’s army of whistleblowers?).
It is important to understand, however, with the greatest of respect to Mr Conlon, that this is only an Opinion; it does not have the force of law.
Regarding the question of employees entering your land, Section 53 of the 1927 Act authorises ESB employees to do just that.
Section 53 of the 1927 ESB Act is a very comprehensive section and deals with the question of way-leaves (which allows someone to be on your land and/or use your land). Essentially it says that the ESB must try and get the consent of the landowner to enter and work on the land but if this consent is not given within a week of it being requested, the ESB can thereafter enter the land to carry out their functions. In other words, you might as well agree to the ESB coming onto your land as they will eventually enter anyway. We all know of the rather tragic case of Teresa Treacy who tried to stop the ESB from entering her land.
The question is, has EirGrid inherited these powers?
In a nutshell, what Mr Conlon points out is that the ESB powers transferred to or conferred on EirGrid are some of the powers originally conferred on the ESB by the Electricity (Regulation) Act of 1999. However, Section 53 is part of the ESB Act of 1927, and not the 1999 Act. Therefore none of the powers conferred on the ESB by the 1927 Act have been transferred to EirGrid. More specifically, none of the Section 53 powers enjoyed by the ESB have been transferred to EirGrid.
A similar point was raised, but not conclusively decided, by Judge Laffoy on 22 July 2011 in her judgment of Electricity Supply Board and Eirgrid Plc v John Commins  IEHC 316. Interestingly enough, Laffoy J. made a similar ruling in Roddy’s case (which involved a compulsory purchase order)
(see: http://books.google.ie/books?id=nVEQAgAAQBAJ&pg=PA292&lpg=PA292&dq=section+53+ESB+Act+1927+and+EirGrid&source=bl&ots=zRvyYQbX-I&sig=rmGKDIIhzOriOEn3jtCMZ3WdK5U&hl=en&sa=X&ei=M1C_U8bdCInVPPzkgPAH&ved=0CEYQ6AEwBQ#v=onepage&q=section%2053%20ESB%20Act%201927%20and%20EirGrid&f=false ).
Accordingly, what this Opinion is saying is that, unlike ESB employees, EirGrid employees do not have the right of a way-leave. This means that EirGrid employees would need the consent of the landowner before entering onto the land. Therefore, following the reasoning in the Opinion, if you refuse to give that consent, an EirGrid employee can never come onto your land, as the ‘wait-for-two-weeks-before-entering’ power in terms of Section 53 has not been given to EirGrid employees.
This would seem to be confirmed by EirGrid in their one-size-fits-all response letter to individual submissions, where it says on this question: “It is not the practice of EirGrid representatives to seek to enter people’s lands without permission” (‘because we are not allowed to, Godammit’).
I apologise, but the bracketed part does not appear in their letter, it is what I imagined they mutter under their breath.
This omission might be rectified by the government in the near future. It might even have been changed already (as the Opinion was furnished by Mr Conlon in November 2010). I have not been able to find such an amendment. If any reader knows otherwise, please share this knowledge. I refer you to the ESB (Electronic Communications Networks) Bill 2013: Second Stage on Wednesday, 22 January 2014:
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2014012200050?opendocument). During this debate, the following point was raised:
“The Bill extends section 53 of the Electricity (Supply) Act 1927 to prospective companies the ESB may partner to provide electronic communications network services, but not all of the section will apply to other companies. Some of the subsections are relevant such as that which provides the power to place electric lines above or below ground, across any land that is not a street, road, railway or tramway. Notice must be given to the landowner or occupier of such an intention. Where the landowner or occupier agrees with the conditions, within seven days the company may enter to place the lines. Where the landowner does not agree, the company may still enter and place lines, but it must pay compensation under the Acquisition of Land (Assessment of Compensation) Act 1919. This issue can sometimes cause problems, but compensation must be paid.”
As EirGrid does not supply “electronic communications network services”, I would suggest that this does not apply to them, but is probably preparing the way for mobile phone companies like O2 or Vodafone to attach broadband transmitters/distributors to pylons.
One important exception to this lack of Section 53 powers was raised by Mr Conlon:
“It appears from what I have discussed above, in my view, if and insofar as EirGrid has been granted an authorisation to construct an interconnector, it may, with the consent of the commission (the Commission for Energy Regulation), for the purposes of such authorisation, exercise the powers conferred on the Board by sections 1 to 5 and 9 of section 53”.
An ‘authorisation’ is defined in the 1999 Act as an authorisation granted in terms of Section 16 of that Act. This is an application process to the Commission for Energy Regulation, in some ways similar to a planning application. For an example of this process, see http://www.cer.ie/docs/000628/cer10096.pdf
This blog does not hand out legal advice, it simply raises points for discussion; but what might this mean in practice? ESB is the Transmission Asset Owner (TAO), and so it manages the transmission assets it owns. EirGrid is the Transmission System Operator (TSO), and accordingly operates the transmission system. I have complained in a previous blog how difficult it is to distinguish these two in practice, but that is a problem for another day.
I would suggest that whenever somebody claiming to be from the ESB asks to enter your land, you should ask for their employee card confirming that they are indeed employed by the ESB. Once they have proven that, you are entitled to ask them exactly what is it they want to do? If their intended action is a function that should be carried out by EirGrid, and is not within the remit of ESB, you would be entitled to refuse access, as the 1927 Act confers powers on the ESB to carry out ESB functions. It does not confer Section 53 rights on EirGrid employees, nor does it confer powers on ESB employees to conduct functions that are outside their remit.
The exception to this would be if an EirGrid employee can show you their authorisation from the Commission for Energy Regulation to build an interconnector on your land. This authorisation can come with Section 53 powers (subsections 1-5 and 9, to be precise), and so the EirGrid employee would also need to show you the consent from the Commission allowing EirGrid to use those powers to enter your land without your permission. At the moment, if Mr Conlon is right, this is the only exception to the general rule that EirGrid employees need your permission to come onto your land.
Of course it might be difficult to distinguish between the management functions carried out by the ESB and the operator functions carried out by EirGrid. It might also be difficult to determine where the interconnector work ends and the transmission line work begins (assuming that the interconnector itself is not being built on your land). I would like to think that the ESB would need to prove that distinction before being entitled to enter your land, but that is a complex question of interpreting Section 53, and cannot be entertained here.
If you have a bit of time on your hands, and just for the craic, you might ask the ESB employee to explain the difference between the former two, and ask the EirGrid employee to explain the difference between the latter two.