The necessity for this measure arises out of a judgment given by Judge Davitt in a recent case in the Circuit Court in which damages were awarded against the Electricity Supply Board. The judge, in his decision, stated that he was not satisfied "that Section 51 of the Electricity (Supply) Act of 1927 gave to the Board either expressly or by necessary implication power to erect on a street or road poles, posts or other such supports for the purpose of carrying electric lines for the distribution of electricity." An appeal is being taken against that decision, but in view of the judge's statement, and the doubt that has been cast upon the position of the Electricity Supply Board, it has been considered desirable to remove that doubt by the introduction of this Bill.
The Act of 1927 was prepared and passed for the purpose of enabling the Electricity Supply Board to carry out whatever functions were necessary for it in order to generate and distribute electricity throughout the Saorstát. The Board has acted throughout the intervening period as if it had full legal power to erect poles and posts on roads and streets. If the position created by Judge Davitt's decision were allowed to continue, the Board would, of course, be liable to have proceedings taken against it by persons who, for any reason, could allege that damage was done to them by the erection of these poles and posts which had become a "nuisance" in the legal significance of that phrase and in consequence of that decision. This Bill proposes to confirm and make retrospective the power of the Board to erect these poles and posts. It is not proposed to invalidate in any way proceedings instituted against the Board prior to the introduction of this Bill. If the lady whose action against the Board produced the Circuit Court Judge's decision wins her appeal, then the amount of the damages will be paid; and, in another case in which proceedings were instituted prior to the introduction of this measure, if it is proceeded with and damages are awarded, in that case also the damages will be paid. The purpose of subsection (3) of Section 2 is to ensure that it will not be open to anybody to take proceedings against the Board after the date of the introduction of this measure in consequence of the action of the Board in erecting either poles or posts prior to that date.
The only amendment of the principal Act effected by this Bill is in Section 3. The purpose of it is to correct a drafting error. Under the original Act the Board was required to consult with the local authority before erecting poles or posts on any road. The obvious intention of the section, taking it in relation to other sections of the Act, was to require the Board to consult with the local authority before erecting poles or posts on streets as well as on roads. The Board have, in fact, always acted as if there was a legal obligation on them to consult the local authority before erecting poles or posts on a street. The object of this Section in the Bill is to remedy that particular defect in the original Act, and to ensure that there will be consultation with the local authority before erecting poles or posts on a street as well as on a road, but without invalidating anything the Board may have done in consequence of the fact that they did not consult with the local authority before erecting poles or posts on a street. In practice the Board has always done so, so far as I am aware.
That is the sole purpose of the Bill. Although it is the function of the courts to say what was the intention of the Oireachtas, I think that we can say, notwithstanding Judge Davitt's decision, that it was intended in 1927 to give the Electricity Supply Board power to erect these poles and posts. The Board have always acted as if they had that power, but now that a question has arisen in connection with the matter, and that some doubt has been cast on its powers to do so, it has been considered desirable that these doubts should be removed so that the position of the Board will be safeguarded.
