Illegal delegation by the ESB

delegatus

Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that “no delegated powers can be further delegated.” Sometimes the principle is stated as delegatus non potest delegare (“one to whom power is delegated cannot himself further delegate that power”), which is a bit clearer, as that it exactly what it means: If a statute gives you a power, only you can exercise that power, unless the statute expressly allows you to further delegate (sub-delegate) to somebody else.

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So if a statute gives a Minister the power to make Regulations, the Minister must do that himself, rather than handing over the job to another body or person.

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Similarly, if the 1927 ESB Act gives the Electricity Supply Board (“the ESB”) the power to decide whether to issue wayleave notices (which allows the ESB to work on private property without the owner’s consent) under Section 53, then only the ESB may do that, it cannot delegate that power to somebody else, unless the Act authorises the ESB to do so, but only to the extent that it authorises the ESB to do so.

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And that is what happened in the case of ESB and EirGrid vs Killross Properties Limited [2016] IECA 210, a judgment of the Court of Appeal.

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Briefly, the facts are that Killross Properties was challenging the legality of a wayleave notice which authorised the ESB and EirGrid to work on a 110 kV line, which included erecting a temporary line whilst the original line was being repaired/modified.

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The ESB had appointed Eoin Waldron, an employee of the ESB, as an authorised officer for the purpose of serving Section 53 notices. The problem was that Eoin was doing a lot more than simply serving wayleave notices, he was issuing them.

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In response to the challenge of this appointment as being an unlawful delegation of statutory powers, the ESB argued:

 

“It is a mistake to think in terms of individual directions being given to Eoin Waldron in respect of any and every statutory notice he serves under s. 53 of the Electricity (Supply) Act 1927. Rather it is more appropriate to think in terms of Mr. Waldron being directed to carry out a project. As the ESB’s project leader on the upgrade the subject matter of these proceedings, once he has directed to carry out the project, Mr. Waldron must, inter alia, decide whether the envisaged works require the service of any notices pursuant to s. 53. If he determines that any such notices are required, he has by virtue of s.9 of the Electricity (Supply) Act 1927 the authorisation of the ESB to serve them. In this regard I beg to refer to a copy of the authorised officer list dated 3rd September 2012 adopted pursuant to s. 9 of the Electricity (Supply) Act 1927 by which ESB authorised Eoin Waldron to exercise powers conferred and/or imposed on it by the Act 1927 including the power to serve notices under s. 53 of the said Act”. (Emphasis added).

 

The authorised officer list was a document which contained the name of Mr. Eoin Waldron, amongst others, who was nominated as an authorised officer and this nomination was approved by Pat O’Doherty, the Chief Executive of ESB who signed the relevant authorisation of 3rd September 2012 in accordance with the 1973 Board decision.

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Killross Properties challenged this arrangement. It argued that the “1973 Board decision” was not a valid exercise of its authority given to it by the 1927 ESB Act. The Oireachtas had delegated certain powers to the Board and in turn Section 9 has also expressly authorised delegation by the Board to servants or officers, but that power did not include the power of sub-delegation. In other words, the ESB had to exercise that power itself, or it could authorise its Chief Executive Officer to carry out those powers, but it could not go further and authorise its Chief Executive Officer to  sub-delegate that power to somebody else. It was going further than just authorising Eoin Waldron to serve the notices. It was authorising him to decide whether the notice was necessary in the first place, and that was a decision that could only be made by the ESB, or by the CEO acting on the authority of the ESB in terms of Section 9. Therefore Killross Properties argued that the 1973 Board decision and the delegation by the Chief Executive was ultra vires (outside the law).

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The Court of Appeal agreed with Killross Properties:

“84. One of the powers which the Legislature has delegated to the Board is the power under s.53 to issue wayleave notices. Under s. 9 the Board may exercise these s.53 powers through any of its officers or servants authorised by the Board. The question is whether, as a matter of statutory interpretation, the Board can authorise one of its officers to delegate this power to another officer.

  1. Section 9 is drafted in simple and straightforward language. It consists of one sentence. It contains a simple concept, i.e., that the Board may authorise any of its officers or servants to exercise any of the powers of the Board. Therefore the Board could appoint its Chief Executive or Mr. Waldron or others to carry out s. 53 notice powers.
  2. The question which then arises is whether this delegation by the Board of its powers and functions under the Act to its Chief Executive, with the authorisation that the Chief Executive could in turn delegate those powers and functions to such other persons as he deemed appropriate, is a matter which is permitted by s. 9 of the 1927 Act.
  3. In my view, such a sub-delegation is not permitted by the Act for a number of reasons. Firstly, s. 9 specifically provides that the Board may exercise any of its powers through or by any of its officers or servants authorised by the Board. The statute is quite specific. Such persons have to be authorised by the Board. This means, in my view, that such persons have to be directly authorised by the Board and the Board does not have the statutory authority under s.9 to authorise officers to delegate these s. 53 powers to other persons authorised by that authorised officer.
  4. Secondly, the section does not expressly say that the Board may authorise any of its officers to carry out any of its powers and that these officers may, in turn, authorise other persons to exercise these Board powers. Moreover that proposition, in my view, cannot be implied into the statutory section. There is nothing contained in the express language of the statute which permits the Board to authorise specific officers to delegate to other officers the powers and duties imposed on the Board by this Act. Any interpretation which seeks to justify the sub-delegation of powers by officers/servants of the Board to other officers/servants of the Board would require specific wording to be added to the section and in my view, this would be impermissible.
  5. Thirdly, s. 9 also provides that such officers/servants must be authorised by the Board in that behalf. This means, in my view, as a matter of interpretation, that the officers/servants authorised to perform certain functions or powers must be specifically authorised by the Board in respect of those specific functions or powers. In other words the statute envisages that the Board not only authorises them directly but also authorizes them in respect of those specific powers or duties. This means that the statute envisages that the Board itself decides on the specific powers and functions so authorized. The section does not envisage therefore that the Board will delegate to one of its officers/servants the authorization to sub-delegate those powers or functions to a third party.
  6. Fourthly, s. 9 clearly envisages a situation whereby the Board would delegate a power directly to an officer or a servant in circumstances where such an officer or servant would be within the control of the Board directly and/or answerable to the Board directly. If the Board authorised its Chief Executive to carry out its s. 53 powers and the Chief Executive did so there could be no objection to that process. Likewise if the Board had authorised Mr. Waldron and other persons directly to carry out its s. 53 powers there could no objection to that either. However what happened in this case is that Mr. Waldron is not authorised by the Board; he was authorised by the Chief Executive who in turn was authorised by the Board to delegate these powers.
  7. Fifthly, whereas s.9 is an important statutory provision which enables the Board, to whom powers have been delegated under the statute, to avoid the strictures of the maxim delegatus non potest delegare, the provision in s. 9 must still be interpreted in the light of that principle. This means that although the Board may authorize certain officers to carry out certain specific tasks, it does not mean that the Board can authorize a person to delegate those functions to a third person. That would be to set at nought the delegatus principle.”

  1. In the circumstances I am driven to the conclusion that the authorisation of the Board to permit the Chief Executive to delegate the functions of the Board to other persons was ultra vires the power of the Board under s. 9 of the Act and was unlawful. As such the s. 53 notices must be regarded as invalid and unlawful.”

.in other words, Section 53 gives the ESB the power to issue the wayleave notice. Section 9 authorises the ESB to delegate that power to the CEO. But there is nothing in the 1927 ESB Act which allows the CEO to sub-delegate the power to issue wayleave notices to another employee (as opposed to serving a notice properly issued). Accordingly, the authorisation by the ESB allowing the CEO to do that was ultra vires.

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This emphasises a very important and useful point. Whenever an official of any department claims to be exercising powers given to him or her by an Act; don’t be scared to go and read that Act to make sure that firstly, he/she has the powers they claim to have; and secondly, whether the proper procedures were followed to give that person the powers that they claim to have.

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Administrative law (for example judicial review) is not glamorous law as it does not deal directly with the rights and wrongs of policy and other merit-based arguments that we so enjoy in TV courtroom dramas. It looks to see whether the Ts were crossed and the Is dotted. It looks at things like time limits and whether the days allowed to lodge papers were counted properly. It asks whether the Minister or any other government official has followed the proper steps before carrying out an action like overturning a County Development Plan.

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It might not be glamorous but it is responsible for all the victories so far against wind farms. Leave the merits of wind energy to the politicians to argue until they are blue in the face. Hit them where it hurts, in the small print.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in An Bord Pleanala; appeal; interested parties, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Section 35; ESB Act 1927; wayleave notice and tagged , , . Bookmark the permalink.

8 Responses to Illegal delegation by the ESB

  1. Tom Bruton says:

    You really expect the CEO of ESB to serve wayleave notices?
    Whatever the legal principle, this defies any common sense.

    • No, the CEO can authorise somebody to serve the notice. What he can’t do is authorise somebody to issue the notice.

      I have amended that now – sorry if it confused you. The power given to the ESB by the Act is to issue wayleave notices (Section 53), and the ESB in turn is allowed to delegate that power to the CEO (Section 9). The CEO cannot sub-delegate the power to issue the notice, but he certainly is allowed to authorise an employee to serve the notice. That is perfectly permissible in terms of Section 9 as it is not a special power at all.

  2. Lar mckenna says:

    The upshot of the judgement in question is that every wayleave notice which was signed by a person who was authorized by the Chief Executive, which appears to be every wayleave notice since 1973, was unlawfully served and the ESB trespassed onto the lands of thousands of landowners to carry out unlawful works.

    • The service might be alright but the notice itself is void and therefore has no legal effect. Some of the notices might actually be signed by the CEO, but that is a question of fact. If signed by anybody else, they are void.

  3. Pat OBrien says:

    Thanks Neil a very interesting scenario indeed a case of an ultra vires situation ??

    Cheers

    Pat

  4. fclauson says:

    What I think will be more interesting is what happens next?

    For sure they are not going to pull up every pole or wire – nor are they likely to pay significant compensation to everybody where they committed trespass

    So what will be the legal resolve to this one asks?

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