“Injurious Affection” Re-Defined: Supreme Court Clarifies the Scope of Compensation for Electricity Wayleaves in Ireland

1. Introduction

On 5 June 2025 the Supreme Court delivered a landmark ruling in Electricity Supply Board v. Paul Good & Ors (commonly referenced as O’Reilly v. ESB), overturning part of the High Court’s 2023 judgment and establishing a clear test for compensation payable to landowners when the Electricity Supply Board (“ESB”) places overhead lines across their property under s.53 of the Electricity (Supply) Act 1927 (as amended).

The Court:

• Confirmed that the term “compensation” in s.53(5) includes payment for the depreciation in value of the whole holding traversed by the line, not merely the strip directly under wires or pylons;
• Held that s.53 rights are not an easement or any other registrable interest in land and therefore the 1845 Lands Clauses Consolidation Act does not automatically apply;
• Rejected the High Court’s conclusion that “injurious affection” is unavailable, aligning the remedy with the common-law “principle of equivalence”;
• Quashed the Arbitrator’s additional award for anticipated future maintenance access under s.53(9) – such compensation only arises when the access power is actually exercised;
• Dismissed ESB’s cross-appeal on alleged procedural unfairness.

2. Summary of the Judgment

Outcome in brief:
• The landowners’ (“the O’Reillys”) appeal on the main compensation issue allowed.
• The High Court was wrong to exclude compensation for depreciation of the retained lands.
• The ESB’s cross-appeal on fair-procedures dismissed.
• Arbitrator’s award must be reconsidered, excluding the lump sum for hypothetical future entries but including compensation for whole-holding devaluation.

3. Case Background

Two separate small agricultural holdings in Crubany, Co. Cavan were crossed in 2011 by a 110kV overhead line, supported by pylons/poles. Wayleave notices issued under s.53(3) and, after construction, the owners claimed statutory compensation. A Property Arbitrator awarded €39,500 combined, based largely on overall percentage reductions to each holding (10% and 5%). ESB challenged the award. Heslin J in the High Court held that “injurious affection” was unavailable under s.53 and struck out most of the award. The owners appealed; ESB cross-appealed on procedural grounds.

4. Analysis

4.1 Precedents Cited and Their Influence

• Electricity Supply Board v. Gormley [1985] IR 129 – struck down earlier s.53(5) for lack of compensation; Supreme Court’s 2025 judgment distinguishes Gormley as not defining quantum, only mandating that some compensation is constitutionally necessary.
• Horn v. Sunderland Corporation [1941] 2 KB 26; Dublin Corp v. Underwood [1997] 1 IR 69 – foundational “principle of equivalence”; heavily relied upon to expand meaning of “compensation”.
• Rafferty v. Minister for Agriculture [2020] 2 IR 463 – term “compensation” implies “total loss” absent limitation.
• Chadwick v. Fingal Co Co [2008] 3 IR 66 – shows limits of compensation for works outside owner’s land; Supreme Court distinguished but drew on its rationale regarding non-takings.
• UK authorities: Welford v. EDF [2007] EWCA Civ 293, National Grid v. Arnold White [2014] Ch 385, Stynes v. Western Power [2013] UKUT 214. They demonstrate compensation for whole-site depreciation in electricity wayleave context without land “taken”.

4.2 Court’s Legal Reasoning

1. No acquisition of land interest. Section 53 grants ESB a statutory right of occupation and access, not an easement. Therefore automatic incorporation of ss.63/68 Land Clauses Act 1845 cannot arise.
2. Meaning of “compensation”. Absent express statutory restriction, “compensation” must be read through the common-law principle of equivalence – “the full pecuniary loss” to the owner, which includes depreciation of the retained land.
3. No constitutional bar to excluding injurious affection, but Oireachtas did not exclude it. The Court accepted that the Constitution would permit the legislature to curtail this head, yet the 1985 amending Act chose broad, unqualified wording; therefore courts must give it its ordinary, expansive meaning.
4. Future maintenance access. Statutory text ties compensation to the exercise of s.53(9) powers; hypothetical future visits are too contingent. Arbitrator exceeded jurisdiction.
5. Procedural discretion. The Arbitrator had power under the 1920 Rules to admit late particulars. ESB could have sought adjournment or submitted a fresh unconditional offer (per s.5 Acquisition of Land (Assessment of Compensation) Act 1919) but declined. No unfairness shown.

4.3 Impact of the Decision

The judgment settles decades of practitioner debate and will directly affect:

• Valuation practice – valuers must now assess diminution across the entire holding (subject property) when electricity lines are imposed. Comparable UK case-law is expressly endorsed.
• Negotiation dynamics – ESB and similar undertakings likely to agree lump-sum settlements at early stage, factoring in whole-site depreciation, to avoid later statutory claims.
• Infrastructure roll-out – cost models for high-voltage transmission projects will rise; clearer quantum rules may, however, reduce dispute volumes.
• Legislative drafting – Oireachtas may choose to amend the 1927 Act if it wishes to cabin or define compensation headings (for example, exclude wider injurious affection or set formulae).
• Beyond electricity – reasoning on non-proprietary statutory rights could influence telecoms “code rights”, gas pipelines, water infrastructure and green-energy corridors.

5. Complex Concepts Simplified

Injurious Affection

The nineteenth-century label for depreciation of an owner’s remaining land when part is taken or burdened for public works.

Principle of Equivalence

Time-honoured valuation rule: the owner should be put, monetarily, in the same position as if the statutory interference had not occurred – no better, no worse.

Wayleave

A consent or statutory licence to place and keep a utility line on, under or over land. It can bind successors but is not an easement unless statute says so.

Section 53(9) Access

A continuing power for ESB to enter the property to maintain or alter the line. Compensation only arises each time the power is actually used.

Unconditional Offer Procedure (s.5, 1919 Act)

A costs-protective mechanism: if the acquiring authority’s open offer matches/exceeds the arbitrator’s award, the claimant pays post-offer costs; conversely, generous awards penalise the authority. Offers can be updated as claims evolve.

6. Conclusion

The Supreme Court’s decision realigns Irish compensation law for electricity infrastructure with modern valuation fairness and the principle of equivalence, while retaining sensible limits. Landowners are entitled to recover the actual depreciation of their entire affected holding. However, speculative elements – such as hypothetical maintenance visits – are excluded until events occur. Procedurally, parties must manage claims dynamically and utilise the unconditional-offer regime.

In practical terms, the judgment will likely increase early settlement figures but reduce litigation over interpretive grey zones. Importantly, the Court demonstrated nuanced constitutional reasoning: while broad compensation is not constitutionally compelled, clear legislative language will be given its full meaning unless expressly curtailed by the Oireachtas.

© 2025 – Commentary prepared for educational purposes. All citations to official law reports remain © their respective publishers.