A €66,000 payment to a farmer to allow access to his land for the laying over overhead electricity cables cannot be taken into account when an arbitrator is considering his claim for €640,500 compensation from the ESB, the High Court ruled.
Kenneth Payne, who lives in Cappaghboggan, Kinnegad, Co Westmeath, was paid €66,000 for "flexibility of access" to the land.
It was among some €1.9 million already paid by the ESB for access to land for the Kinnegad/Mullingar 110 Kv line. Up until recently, the ESB said most landowners have been satisfied with this level of compensation sought to have statutory compensation assessed, it says. Additional payments ultimately impact on the cost of electricity for consumers, it said.
Mr Payne then claimed compensation under the 1927 Electricity (Supply) Act for nuisance and disturbance, among other things. He sought compensation for things including the loss of four development sites to the value of €150,000, reduction in value of lands within a "wayleave corridor" and injurious affection to his home and lands.
Compensation
The ESB told him he had already been paid €66,000 for "the placement of the electric line on his lands.” While it did not prevent him seeking compensation under the 1927 Act, the €66,000 had to be taken into account in any final award, it said.
He described it as an ex gratia payment, which fell outside the statutory compensation scheme,
An arbitrator who was appointed to deal with his compensation claim refused an ESB request to state a case on this issue to the High Court. The ESB then brought its own proceedings seeking that the arbitrator be required to state a case.
Arbitrator
In June 2019, Mr Justice Twomey directed the arbitrator to state a case to the High Court.
That matter was heard by Mr Justice Brian O'Moore who, on Wednesday, ruled Mr Payne should receive both the compensation assessed by the arbitrator and the sum of €66,000 already paid to him.
He said a letter from the ESB to Mr Payne in 2014 (seeking flexibility of access) offered to make payments (€66,000 over two years) to ensure he cooperated with the construction of the overhead line on his land.
It was not an advance payment of compensation for any loss he might suffer as a result of the exercise by the ESB of their statutory powers under the 1927 Act, he said.
The ESB views the €66,000 as a very generous payment and while it may well be right on that, the money was paid to secure Mr Payne's co-operation, he said.
"The ESB may have paid a lot for that cooperation, but the ESB has chosen to make these payments and on these terms".
