Dáil Éireann díospóireacht -
Thursday, 28 Mar 1985

Vol. 357 No. 5

Electricity (Supply) (Amendment) Bill, 1985: Second Stage.

Minister for Energy (Mr. Spring)

I move: "That the Bill be now read a Second Time".

The powers of the Electricity Supply Board to place any electric line above or below ground, across any land and to attach to any wall, house, or other building any bracket or other fixture required for the carrying or support of an electric line or any electrical apparatus are set out in section 53 of the Electricity (Supply) Act, 1927.

In exercising these powers the ESB makes every effort to ensure that it will cause as little inconvenience as possible or disturbance to property and, indeed, it is an integral part of the board's procedures to visit landowners concerned to discuss with them the route of the electric line and the planned positions of masts. All suggestions for changes made by the landowners are then carefully and fully considered by the board in an effort to meet the wishes of the landowners and changes are made where this can be done within technical and economic limitations and without unreasonably affecting other landowners. Finally, the board issue a wayleave notice in writing to the owner or occupier of the lands in accordance with section 53, subsection (3) of the 1927 Act. If within seven days the owner or occupier of the lands gives consent, or fails to give consent, the ESB may place the electric line across the lands in question. The ESB do, however, pay compensation but on an ex gratia basis for the disturbance to farming or for the sterilisation of lands arising from the placing of the electric line over the lands. The amount of compensation paid is based on guidelines agreed with the Irish Farmers Association.

A problem has arisen for the ESB with regard specifically to subsection (5) of section 53 of the 1927 Act. The ESB are erecting a 220 KV transmission line from the generating station at Great Island, Campile, County Wexford, to a transforming station at Arklow, County Wicklow. The route of the line passed over particular lands in County Wexford where the owner has objected to the erection of the line and locked out the ESB workers when they attempted to erect the line across the property in accordance with a statutory notice served on the landowner under section 53 of the Electricity (Supply) Act, 1927.

The ESB sought and obtained an injunction against the landowner in the High Court in June, 1983 when all of the various grounds of the owner's case were rejected by the trial judge. The landowner then appealed to the Supreme Court and that court, having heard the case in early February 1985, issued its judgment on Thursday, 21 March 1985. The court acknowledged clearly the social benefits of electricity and its contribution to the economic welfare of the State and pointed out that the uncontradicted evidence adduced in the case of the necessity for and the value of the 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. The court did not, however, accept a contention that the payment of compensation ex gratia in an amount determined by the ESB is to be equated with a right to compensation, lacking as it does the essential ingredient of the ultimate right to have the amount assessed by an independent arbitrator or tribunal. The court was, therefore, satisfied that the compulsory powers contained in section 53 (5) of the Act of 1927 are invalid having regard to the provisions of the Constitution.

Legal advice is that the Supreme Court means that, while the erection of all electricity lines can continue where there are consents or negotiated agreements, the use of the power to enter under section 53 (5), where there is not consent, requires to be supported by a provision at law for compensation and for the determination of that, in the absence of agreement, by independent arbitration. I do not have to underline for the House the disastrous effect which delays or inability to carry forward its work would have on the ESB's everyday operations in the extension of supply to all consumers whether industrial, commercial or domestic. I am confident that the consent and negotiation procedures which the ESB have carried on with landowners and their representatives will continue to be successful in the vast majority of cases, but the court ruling requires an express statutory provision for compensation and on arbitration.

The first 300 MW unit of the Moneypoint generating station is scheduled to come on stream on 1 October 1985. The ESB have scheduled their weekly work programmes, including the erection of the transmission lines to Dublin, to meet this deadline. The board have calculated that every week's delay in meeting the 1 October 1985 deadline will cost the board £1 million in lost benefit through having to meet electricity demand from other higher cost generating capacity rather than from the Moneypoint station. Any delay, therefore, in completing the erection of the 400 KV transmission lines will cost the ESB £1 million for each week's delay.

The House will appreciate the paramount need that the ESB be not held up in proceeding with their work even in cases where consent is not forthcoming. Having regard to the implications for the ESB arising from the Supreme Court judgment, it is imperative that the board's wayleave powers be made constitutional as a matter of extreme urgency. The Bill before the House is designed to achieve that purpose by providing for the entitlement of landowners to compensation in respect of the exercise by the ESB of the powers conferred under section 53 of the Electricity (Supply) Act, 1927, such compensation to be assessed, in default of agreement between the ESB and any landowner, under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919.

This Bill will ensure that the ESB will be enabled to continue with the essential work of expanding the social benefits of electricity to the economic welfare of the State which, as I mentioned earlier, has been clearly acknowledged by the Supreme Court in its judgment. At the same time it will provide for landowners a statutory right to compensation and to have the amount of that compensation settled, where necessary, by independent arbitration.

I strongly recommend the Bill to the house.

Mr. Reynolds

I appreciate the urgent necessity for an amendment of the Electricity (Supply) Act and will accommodate the Minister and the Department in every way I can. We are all too well aware of the high cost of electricity not only to the consumer but to industrialists and the lack of competitiveness in industry as a result of the high cost of energy. The report on the price of electricity has borne that out. If the amendment to the Bill was not proceeded with I would understand the anxiety of the Minister and the ESB. It could cause hold ups in the laying of power lines from Moneypoint which we have been told by the Minister and the ESB will provide some relief in the cost of electricity to consumers and industrialists.

One would have to say that it was the courage of a lady in County Wexford who took on the ESB in the Supreme Court that led to this amendment. She must be admired, because rarely do we see people prepared to risk taking on statutory bodies with the powers which have been vested in them. We must recognise the rights of ordinary people. We have to give the ESB power to get on with the job of supplying electricity but we also know that on occasion they approach ordinary citizens in a hamfisted manner. I am not saying that is a regular feature of the ESB but I have come across it as a public representative and I am sure the Minister has too and other Members of this House. While we recognise that the ESB need those powers to make progress and get on with the job, we do not want to see those powers abused by the ESB trampling on ordinary citizens who have not got the financial wherewithal, which apparently this lady in Wexford had, to take them to the Supreme Court and have their rights recognised. I hope this message will be brought home to the ESB when they are being given this extra power.

The Supreme Court knocked down this section because of the lack of reference to statutory compensation and this legislation is intended to put that situation in order and to enshrine in legislation the statutory right of people to compensation. I understand that in most cases agreement is reached between the ESB and the landowners concerned. Obviously in this case in Wexford agreement could not be reached. I see the need for this amendment. We have to put right what the Supreme Court has struck down. In their judgment they referred to the powers the ESB were using and said the job they were trying to do could have been done under section 45 of the 1927 Act. I am a bit puzzled about what they really mean. I have not had recourse to the actual judgment. I am relying on the newspaper reports. Section 45 covers the area of land acquisition and provides machinery by which land can be acquired by the serving of compulsory notice, and the setting up of hearings or tribunals or whatever may be required under the particular Act.

Because of the large work programme which the ESB have in hand, especially in Moneypoint, any delay costs £1 million a week. If there was a delay of four weeks it would cost £4 million and if there was a delay of ten weeks it would cost £10 million. The consumers, the industrialists and the economy could not afford to bear that cost. We have to balance that against the rights of the individual.

In the Bill there is a reference to seven days. That is a very short time. There may be a reason for it and that is why we are asking to adjourn Committee Stage until tomorrow morning. We want to flesh this out. The new section 5 reads:

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.

I am concerned about the reference to seven days. Without very good reason I would not be prepared to hand that type of power to the ESB. It is too short for any ordinary citizen. A citizen might not be at home when a statutory notice was issued. His solicitor or his barrister could be on holiday. Where will he get advice? I know the Minister would be available to give that advice.

Mr. Spring

Especially on Saturdays.

Mr. Reynolds

I would be talking about a period of 28 days. I hope we can get agreement on that during the day. I hope the Minister will tell us his thinking on it, or what the real reason for it is. We are all too well aware of how a power can be abused by public bodies against the ordinary citizen. The common good must always be upheld. I came up against the occasional objector when I was Minister for Energy and we were laying the pipeline from Cork. There are always unreasonable people out there in the public arena who are prepared to hold up everybody. We need power to deal with that type of situation, but we must not go overboard and crush the rights of ordinary citizens. I needed such power to get that project under way and finished within time and within the budget. It is for that reason that this sort of powers are conferred. They are not conferred by this house to enable bodies such as the ESB to ride roughshod over the rights of the ordinary citizen. That is the only reservation I have. We support the reasons for bringing forward the Bill to correct a position which has existed since 1927. I do not know whether it has been challenged before. It has now been upheld by the Supreme Court and there is an onus and a responsibility on us to put the matter right. I will be interested to hear what the Minister has to say about the seven days. As I indicated to the Minister's Department last night, I am prepared to go along with the Bill if we can agree on a reasonable period of notice to allow the ESB to get on with the job. I want the message to go to the ESB that when we confer powers on them we expect them to be used in a reasonable manner.

An individual working for the ESB may decide to put a pole in your front garden irrespective of whether it destroys the appearance of your house. Community amenities should form part of the forward planning of the ESB. The huge pylons across the country are not very attractive. I am not a technical expert or an engineer, but I know we all want to preserve our amenities and the beauty of the countryside. At the same time we must have electricity. I will be interested to hear the Minister's comments on the few points I have raised.

Mr. Carey

I understand why the Minister is bringing in the Bill at this time. The experience in our constituency is that there have been differences between the ESB and landowners from time to time. Problems have arisen about access and the manner in which approval was sought to go over the terrain. I am glad the Minister is bringing in an amendment which will give the landowners a statutory right to compensation. This was denied to them up to now and systems which the ESB operated left something to be desired. This amendment will correct that position.

On occasion there have been protests in our constituency about the quality of the lines and about the pylons being properly monitored from an engineering point of view. In the Kilmihil area there was a collapse last year during a storm. There was a great deal of concern about that collapse. The advent of the powerline from Moneypoint will decrease the cost of electricity to the consumer. I am sure the Minister and other people on this side of the House are glad to note that Fianna Fáil have finally discovered that the ESB station at Moneypoint will be of some value nationally and that it will contribute to the economic life of the country. However, that is a little away from the matter in this Bill. These power lines must be installed and the ESB have a tough job trying to do this in good time. Delays are very costly.

I know that some landowners have objected vehemently to, as they see it, their estates and lands being totally destroyed. While the ESB have been very diplomatic with regard to installation in some cases, I must agree with Deputy Reynolds that they have been very hamfisted in their approach in others. Farmers have been very irate at the way in which their estates have been broken up. The ESB, in consultation with the planning authority, should have greater regard for the estates that will be damaged. I am not satisfied that there is enough communication between the public, the planning authority and the ESB. For instance, the notice sent out when a line is going to be installed is not given sufficient prominence in the newspapers and I am not satisfied that the media explain this matter properly. Many of these announcements have escaped the attention of landowners who find themselves without any means of altering the direction of the line being worked upon.

While welcoming the intention of the Bill, I would ask the Minister to get the ESB to give a reasonable amount of notice. The seven days notice is a little short. There should be more flexibility. With the nature of their work, sometimes landowners would not see the papers from one end of the week to the other.

Mr. Spring

Not even The Clare Champion?

Mr. Carey

Not even The Clare Champion. This has happened in other aspects of national life. Grant notices from the Department of Agriculture have been missed.

Mr. Reynolds

And the Department of the Environment.

Mr. Carey

Deputies have made representations from time to time about these matters. Not alone should there be a published notice, but there should be some flexibility about the return of the wayleave. Seven days for acknowledgment is a very short time for proper legal consultation. Would the Minister please reconsider that limited time?

Tomás Mac Giolla

We are supporting this Bill. As one who has worked in the ESB for 30 years, I have a fair idea of what approach they have in this matter of wayleaves. I must say that the ESB over the last 58 years have used this power very responsibly and they have a major power in this Bill in many other areas also. The foresight of the people at the time meant that they saw the ESB got the powers which they needed if they were to do the job that they were given to do.

Deputy Carey is making the point that they do not give sufficient notice and that the notice may escape those concerned. I do not think that is so. Apart from putting notices in the papers, they advise all farming organisations and everybody involved in farming and I am sure that those across whose land the line will go will know one way or the other. Eventually, they send the notice to the individual farmer. There is no question of their not knowing what is happening and what direction the line will be taking. They also take a very responsible attitude, in so far as they can, concerning overhead lines. These are visually unattractive but the ESB are very careful to try to avoid skylines and so forth and overhead lines appearing, especially in an amenity or visually attractive area. They have always had these things in mind, although they have no need to under the Act.

The ESB always gave compensation although I agree that the public did not have a statutory right to claim it and then go before arbitration with regard to the amount of that compensation. The level of compensation given was always agreed with the IFA, the ICMSA, or the local farming or community groups. The ESB have often been in touch with various people in the local area in order to agree the amount of compensation they would give. It is an ex gratia payment and they have no statutory duty to give any compensation whatsoever, but they always did and always endeavoured to negotiate.

It is felt that the right to compensation under arbitration will not substantially increase the amount which the ESB had already been giving. It will approach around the same amount. The difference now will be that, whereas at the moment the vast majority of people accept the wayleaves, agree to access and accept the compensation given — usually by agreement with farming organisations — when this Act is passed they will probably all seek the statutory right to arbitration to decide this figure. That could possibly lead to some delay. We agree that people have that statutory right and that some are more inconvenienced than others and more damaged. It depends on the type of farming carried on. Tillage farmers would probably not be much more affected than beef farmers and so forth. In that area there is a need for arbitration to decide the level of compensation that would be required, and we agree with that.

I would not agree at all with the use of the land acquisition powers in section 45. First, it would be a long and involved procedure and secondly, the ESB would be acquiring lands which they do not need once they have erected their pylons. They would be giving that land back to the farmers from whom they acquired it. That would not be a suitable method of doing the job which this Act is allowing them to do. It involves a slight addition to one subsection of the 1977 Act to enable the ESB to carry on the job they have been doing.

It will be agreed by all Deputies that the farming community accepted the ESB, understood the importance of their contribution to development probably more than anybody else in the fifties and sixties when the rural electrfication scheme was being implemented and then there was enormous co-operation between farmers, rural groups generally and the ESB. The ESB did much more than just instal electricity. They initiated demonstrations of cooking, of horticultural uses of electricity, of its farming uses. There were also organised group water schemes with pumps being installed for their implementation. They carried out all sorts of development in rural areas in co-operation with local communities with whom they got on very well at all times. I do not believe that this case brought to the Supreme Court indicates in any way that farmers are taking a harsher line with the ESB because there has always been great co-operation between them, and I believe this will continue. However, it is only right that farmers have the right to go to arbitration with regard to a claim for compensation if they are not satisfied with the suggested figure of the ESB, and we support that right.

Mr. Enright

This Bill is of importance to many people who have felt unhappy in regard to the payment they have been offered, and in some cases they have been refused payment by the ESB where pylons crossed their lands. People are concerned about the siting of these power lines and they have every reason to be so. They are concerned about them crossing their dwellinghouses and their potential effects. Where such power lines are sited over dwellinghouses there should be adequate compensation paid to people. I am glad to note that, instead of an ex gratia payment, compensation will now be written into legislation. This is a very good thing.

I accept that the Minister is acting on the advice he has received from the ESB. They have calculated that every week's delay in meeting the 1 October 1985 deadline will cost the board £1 million in lost benefit through having to meet electricity demand through other higher cost generating capacity rather than through the Moneypoint station. I see in one of this morning's papers mention of the importation of coal.

Acting Chairman (Mr. Allen)

Could the Deputy please specify the paper?

Mr. Enright

This morning's Irish Independent. There is mention of the problem of acid rain.

Acting Chairman

What has that to do with pylons?

Mr. Enright

It appears that the fallout from generating stations is having an effect. I am reliably informed that the cost of installing equipment to offset the effects of acid rain is in the region of £500 million. That type of cost is prohibitive. I would ask the Minister to ensure, in consultation with the ESB, that every effort be made to avoid the effects of acid rain.

I might mention also the importation of coal to generate electricity. In this respect I would ask the Minister to continue to exert influence on the ESB to discontinue such importation when there is native fuel available. The Minister said himself last April, that he would be anxious to utilise and avail of all existing native fuel resources. I doubt the calculations leading to the ESB statement that there will be £1 million a week lost through delays in installation of lines. Certainly they miscalculated in regard to many items relating to Moneypoint.

It should be remembered that there are vast quantities of native fuel available. There is a vast, untapped energy supply lying fallow which could be taken over by the Department of Energy. Here I refer to our forests, which I believe should be the responsibility of Bord na Móna. It is a scandal to see so much imported energy being used while one of our greatest assets, our forests, lie fallow. It should be remembered also that Bord na Móna have the necessary structures, factories and personnel. This means that with very little additional cost our forests could be transferred from the Department of Forestry to the Department of Energy with responsibility for them being vested in Bord na Móna.

I am pleased to note that people will be compensated immediately under the provisions of this Bill.

Acting Chairman

We have two speakers, Deputy E. O'Keeffe and Deputy Durkan, and the Minister has to reply. We have 12 minutes only. Perhaps Deputies would bear that in mind.

Mr. E. O'Keeffe

I shall be very brief. I support this Bill. There are just a few points I should like to make. At planning stage, when a line is being drawn upon the drawing board, I believe the ESB should be more flexible in their approach and enter into discussions with individual farmers. This Bill concerns the agricultural community mainly. It should be remembered that those lines can occasion great inconvenience to farming development, especially for tillage farmers and for people engaging in horse breeding, where such lines can be quite a nuisance. With proper discussion matters could be tidied up between both parties with pylons, poles and so on being sited in areas more convenient to everybody.

It is very difficult to compare the ESB problem with that of Bord Gáis Éireann because Bord Gáis traversed farmers' property probably once in a lifetime. They have an excellent way of dealing with the farming community and go to enormous trouble to satisfy the needs of the agricultural community generally.

The period of seven days is too short and it should be at least 14 days.

The ESB lines passing through farmyards can be quite dangerous. Matters like these should be taken care of at the planning stage. In many instances very large pylons are sited near homes and farmyards and they can cause annoyance because at times they are very noisy. This can be quite upsetting if the farmer is engaged in the horse breeding industry. Generally farmers co-operate with the ESB and I recommend that the latter give greater consideration to dealing with the matters I have mentioned when they are at the planning stage.

Mr. Durkan

I welcome the Bill. It is necessary legislation. It is not an indication of friction between the farming community and the ESB but is merely regularising a situation that has been obvious for some time. From my experience of dealing with the ESB they have been extremely co-operative and I know that they go out of their way to cause as little annoyance and discomfort as possible. However, there is a need to update the 1927 Act. The seven days notice is not sufficient and neither is the notice given to people other than landowners or farmers. There have been many cases where people bought a site that was on the line of new ESB lines. Because of the use of outdated ordnance survey maps the original owner is often served with the necessary notice even though the land may have been sold six or seven years ago and the present owners do not receive any notice other than the ordinary planning permission notice in the newspapers. There is a considerable grey area in the 1927 Act and I ask the Minister to update that Act as soon as possible to ensure that all property owners, both farming and non-farming, get adequate notice of the intentions of the ESB to seek a wayleave in relation to a power line. This matter will have to be attended to in the not too distant future.

Minister for Energy (Mr. Spring)

I wish to thank Deputies for their co-operation, particularly Deputy Reynolds on behalf of the Opposition party. This legislation is necessary and the House understands why it has to be done expeditiously.

General remarks were made about the powers of the ESB in relation to showing respect for the wishes of the community and landowners and also for environmental interests. Without opening a case on it, I think that in the past they have respected the rights of landowners and property owners, but obviously there will always be difficult situations and the same applies in respect of local authorities who have compulsory acquisition powers. I think this is the exception rather than the rule in dealing with the ESB but I can assure the House that in my contacts with the board of the ESB the sentiments expressed here will be conveyed to them.

With regard to the period of time, I wish to point out to the House that section 53 of the 1927 act provided for 14 days and the then Government saw fit to give 14 days to lodge objections on the service of notice by the ESB to place lines over land or to erect masts. This was amended to seven days in 1945. However, we should appreciate that before the notice is issued discussions will have taken place with the landowners and the land will have been surveyed. The seven days is a reasonable period in the circumstances because many discussions will have taken place before the notice is served.

Deputy Reynolds queried the necessity for this legislation and he wondered why we did not use section 45 of the Electricity Supply Act, 1927. Basically that deals with the compulsory acquisition powers of the board and, as a matter of practice, I think we are better off to avoid using compulsory acquisition powers for a number of reasons. First, it is slow and cumbersome——

Mr. Reynolds

I think the Minister probably misunderstood me. I said the Supreme Court comment in giving the judgment was that section 45 was available but I do not accept——

Mr. Spring

The Deputy's business acumen will agree with my own assessment that they are better off to use the other Act. I am sorry I misunderstood the Deputy.

Mr. Reynolds

It was the Supreme Court who made that comment.

Mr. Spring

Deputy Carey expressed concern in relation to the collapse of the pylon at Kilmihil, County Clare, during last year. I can assure him that the engineering standards applied by the ESB are of world standard and the ESB are a world leader in relation to erecting power lines. Of course there will always be mishaps but I can assure the Deputy that the highest possible technical standards are implemented in the erection of power lines. In relation to the serving of notice, discussions take place other than the formal notices which are published and served on landowners. Adequate steps are taken.

In welcoming the Bill Deputy Enright said that the question of compensation is desirable, and I agree with him. The Supreme Court in its clear decision highlighted the weaknesses in the present legislation. With regard to his queries on acid rain, this is primarily a matter for the Minister for the Environment. We are working in close co-operation with the Department of the Environment to ensure that appropriate measures will be introduced to protect the environment and also in regard to matters that are subject to the EC directive on environmental controls.

Mr. Reynolds

Is the Minister going to accept that directive?

Mr. Spring

Time will tell. In reply to Deputy Enright, I wish to say that the use of native fuels will continue at its present high level. That was ensured by the decision last year. Deputy O'Keeffe asked for flexibility. I can assure him there is flexibility in discussions with the farming community in an effort to minimise inconvenience. I agree with the sentiments in relation to co-operation from the community.

Deputy Durkan made a valid point that when land changes hands, the information may not be available from the older maps. We will communicate with the ESB on that point so that information is updated and the minimum inconvenience is caused to landowners or site owners. As Deputy Reynolds pointed out, a pole in one's backyard can cause a lot of inconvenience. In most cases efforts are made by the ESB to avoid any conflict with landowners in the interests of harmonious community relations so that the ESB can continue to provide the necessary social service in relation to the provision of electricity and planning the position of masts and lines.

Mr. Enright

Before the Minister concludes has he any comments regarding the generation of electricity from our forests?

Mr. Spring

I think we should consult our ministerial colleague, Deputy O'Toole, who might not like the suggestion that I want to acquire his forests. I will open discussions with him.

Question put and agreed to.

Committee Stage ordered for Friday, 28 March, 1985.