Overhead ESB line causing nuisance in garden

highdef

I moved into my home about 3 years ago. The house itself is an old cottage with 2 story extension built on. Nearby is a group septic tank area. There is an overhead ESB line feeding this. When I first moved in, it went diagonally across my property, from front to back and the cable actually rested on the top of the roof. One day, unannounced, an ESB crew came along and cut this wire down. One end of it landed on my car at the front and the other end landed into my vegetable plot but no real damage was done....would've been nice if they called at the front door first though.

Anyway, they relocated the wire and it runs in a slightly different way now.
The wire travels right over the main area of my back garden where I would sit out or whatever I want to do. It then continues off to the septic tank area.

The wire coming from the front. The pole is actually in the neighbours garden:


Passing over my main sitting out area....there is also a clothes line which I rarely use as the clothes often get covered in $hit so I generally dry clothes indoors.


And off towards the septic tank area:


I wouldn't mind all this except for the fact that crows and all sorts of birds congregate on the wire and defecate all over place. The concreted footpath areas and walls and garden furniture. The place is sometimes covered. Have I any legal say with regards to this wire travelling through the airspace above my garden or is it just tough luck? It really is a pain having to power wash the paths and furniture on a weekly basis. With regards to the furniture, it could be said that I could move the furniture elsewhere. Well I don't have that much free area out in the garden where I can get good sunshine, due to the aspect of the garden.

If anyone can tell me if I can legally make the ESB move the wire from my airspace, I would be most appreciative. A few pics of garden furniture a little while ago:

Victor

I think talk to the ESB first and explain it is causing a nuisance.

Potentially a bird scarer could be used, e.g. a fake cat or a recording of a bird of prey.

highdef

Thanks Victor. have emailed ESB a few times but have not had one reply to date. Your alternative ideas seem good though. I'm sure the clever crows would quickly cop on that the fake cat is fake though. As for the bird of prey noises, sounds good in principle but would probably need to run power to the device. Good thought though...I may check it out if nothing else is forthcoming

NoQuarter

Looks like a bog standard case of legal nuisance to me, try get through to ESB a few more times and if they are having none of it, go see a solicitor.

sideboard

Before you head off to your solicitor, you are certain that it is an ESB line and not a bog-standard telephone line?

highdef

No, definitely a power line. The power line at the front is attached to an overhead directly across the road. There is also another ESB pole at the other corner of my front garden (on neighbours side). There is an overhead that runs parallel to my front wall boundary. At the other end, goes underground to feed my house plus 3 others......bit of a pointless overhead I know!!! And very ugly too. The thick phone cables also run parallel to the front wall boundary but they (and the electricity cable) are slightly offset from the wall so I don't generally get $hitty walls.
Here's a photo that might explain it. The two thick cables running across the centre of the photo are the phone lines.The cable running off to the top right is the one that is causing me grief in my back garden. The one running from the ESB pole to the top left of the photo is the one that goes to a pole at the other end of my front garden and then goes underground. And the other ESB pole across the road is......across the road

Bit of a mess, eh???

Departed

not being smart but i do not have overhead power line in my garden and my garden furniture/fence/shed and even windows get bird crapped on

highdef

That's a very reasonable comment to make. However, to put it simply, the trail of bird **** runs along a line about a foot or so wide, depending on the wind direction & speed and the concentration of it is far more than any other random bird droppings that I might get around the place. Sometimes you can see the line of it running through the grass. It can be like a trail of destruction from a tornado except in bird dropping form.

And the ONLY reason for this continual line of crap is because a utility company put this wire across my property, without so much as consulting with me, never mind asking for permission.

Departed

yes that is fair enough - a line of crap under the power line. I do not have that more random

. sorry do not know the law about this

234

See s.53 of the Electricity (Supply) Act, 1926 (as amended). The ESB is entitled to place those lines on your lands.

However, they are usually quite accomodating with regard to moving lines. However, I'm not sure that the reasons you have given would really be taken seriously. From what you describe, they already moved the line when it was in a more disruptive position. If the septic tank required power, and is surrounded by homes then the line has to go through somebody's garden and I doubt your neighbours would be willing to have the line moved through their gardens.

loremolis

234 wrote: »

See s.53 of the Electricity (Supply) Act, 1926 (as amended). The ESB is entitled to place those lines on your lands.

However, they are usually quite accomodating with regard to moving lines. However, I'm not sure that the reasons you have given would really be taken seriously. From what you describe, they already moved the line when it was in a more disruptive position. If the septic tank required power, and is surrounded by homes then the line has to go through somebody's garden and I doubt your neighbours would be willing to have the line moved through their gardens.

It's the 1927 Electricity Supply Act (as amended).
The ESB are not entitled to place the line on your lands unless they have served a wayleave notice.

The ESB will take the easiest option for themselves regardless of what hassle it causes you. As suggested above, write to them explainging in detail why this line is causing a nuisance to you and ask them for a copy of the wayleave for the line.

If this situation arose in the UK/northern Ireland, the Electricity company would be moving the line or paying you compensation.

highdef

Thanks to both of you. Very helpful information. I will write to them again and ask for a copy of the wayleave for the work they did. If they do not have one, am I within my rights to insist that they move the cable so that it is not crossing my property?

If they did have a wayleave, would that be the end of the matter? Would it not be worth my while to try pursue it further?

Note that I was living in my home when this new line was installed so I was resident at my home.

Thanks again

234

Apologies for misquoting the year of the Act.

Yes, they do have to serve a wayleave notice. This would have been served on the owner/occupier when the line was originally erected. There is no obligation in the act to produce copies on demand or even keep them. If compensation was due it would have been paid to the original landowner.

Contact them and see if they will consider diverting the line. However, they might just say that you knew that there was a line there when you bough the land.

highdef

Well the original line was there so that was fair enough. I was going to ask them to move it as I wasn't keen on it passing right over and touching the roof of the house but they just arrived one day, cut down the old one and erected the new one. However the line that was installed is completely different, takes a different route and goes to a different pole but still very much tavels over my land and causes a nuisance. As I was the owner/occupier at the time (about 18 - 21 months at that stage), then would the wayleave notice not have to be served to me?

Our man in Havana

There was already a line there so no new notice would be needed.

Also compensation is only paid for high voltage lines. Hard cheese.

loremolis

Our man in Havana wrote: »

There was already a line there so no new notice would be needed.

Also compensation is only paid for high voltage lines. Hard cheese.

I'm afraid you're wrong on both of those points.

If a new structure was erected in a new position or on or across the lands of a party where no structure or line existed then a new Wayleave notice is required.

Section 53(9) allows the alteration of an existing line but not to the extent that would mean new poles are erected on lands where none existed previously.

Also, the electricity supply acts do not differentiate between the various voltage.
Compensation may be claimed in respect of the placement of any voltage of electricity line.

Compensation can be claimed in any instance where the placement of the line causes damage or loss to the landowner. While the compensation figures for high voltage lines would be much higher than low voltage, low voltage are not excluded.

By way of comparison, in Northern Ireland there is a specified set of figures for single low voltage poles and stays. Im sure I can find it if you want to see it.

loremolis

234 wrote: »

Apologies for misquoting the year of the Act.

Yes, they do have to serve a wayleave notice. This would have been served on the owner/occupier when the line was originally erected. There is no obligation in the act to produce copies on demand or even keep them. If compensation was due it would have been paid to the original landowner.

Contact them and see if they will consider diverting the line. However, they might just say that you knew that there was a line there when you bough the land.

The ESB serve a Wayleave notice. This is in effect their "notice to treat". This is simply a formal statutory notification to the landowner that describes the line, the position of the line and invites the landowner to comment or object.

A Wayleave notice isn't binding on the land or on future owners of the land.
Only an easement signed by the owner of the land can bind the land in perpetuity.
A Wayleave agreement, if one is agreed between the ESB and the landowner is a contract between the two parties involved. While the words Wayleave and easement are often confused, they are distinct and different agreements.

An easement binds the land to its terms forever, a Wayleave is an agreement or contract between the parties that can no longer be enforced if the landowner sells the land.

The 1927 act falls short of what is required to allow the ESB to acquire a Wayleave. They can serve the notice and they can agree Wayleave terms with the landowner but they cannot compulsorily acquire the Wayleave.

Most of the older lines around the country have no Wayleave agreements in place. More recently, still operating under the 1927 act, Eirgrid seek easements for new lines.

Just because the line is there when the land is bought doesn't overcome the lack of an easement.

Again, this position is reflective of the way these matters are dealt with in the UK.

Milk & Honey

loremolis wrote: »

Again, this position is reflective of the way these matters are dealt with in the UK.

This is not the UK. We left the UK before the ESB was even established.

loremolis

Milk & Honey wrote: »

loremolis wrote: »

Again, this position is reflective of the way these matters are dealt with in the UK.

This is not the UK. We left the UK before the ESB was even established.

Thanks for the history and geography lesson.

And what do you think the 1927 electricity supply act was based on?

Could it have been the UK 1925 electricity act.

Maybe the UK updated their electricity legislation in 1989 to better detail the practices that had existed since the original legislation was introduced. Privatisation required a clearer definition and clearer procedures to deal with lines that were in place but had no formal wayleaves or easements. The revised electricity act also introduced statutory notice requirements for landowners who wanted an electrity line removed. It also set a period of time for the electricity company to comply or to seek a "necessary wayleave" from the secretary of state.

These provisions were introduced to defl with older lines that had no legal status I.e. no wayleave agreement or easement.

The electricity legislation governing the placement of electricity lines, both here and the UK, were almost identical until 1989.
For the most part, the principles are still the same but some on the terms and phrases used are slightly different because the UK legislation is much clearer and better defined.

Milk & Honey

loremolis wrote: »

Thanks for the history and geography lesson.

You are welcome. I notice you have neglected to mention the commencement of Bunreacht Na hÉirinn in 1938. This has meant any legislation must be viewed through its protections for the rights to the ownership of property. Just because legislation is good enough for people in England does not mean it is good enough here!

loremolis

Milk & Honey wrote: »

You are welcome. I notice you have neglected to mention the commencement of Bunreacht Na hÉirinn in 1938. This has meant any legislation must be viewed through its protections for the rights to the ownership of property. Just because legislation is good enough for people in England does not mean it is good enough here!

Can you elaborate please?

234

loremolis wrote: »

The ESB serve a Wayleave notice. This is in effect their "notice to treat". This is simply a formal statutory notification to the landowner that describes the line, the position of the line and invites the landowner to comment or object.

A Wayleave notice isn't binding on the land or on future owners of the land.
Only an easement signed by the owner of the land can bind the land in perpetuity.
A Wayleave agreement, if one is agreed between the ESB and the landowner is a contract between the two parties involved. While the words Wayleave and easement are often confused, they are distinct and different agreements.

An easement binds the land to its terms forever, a Wayleave is an agreement or contract between the parties that can no longer be enforced if the landowner sells the land.

The 1927 act falls short of what is required to allow the ESB to acquire a Wayleave. They can serve the notice and they can agree Wayleave terms with the landowner but they cannot compulsorily acquire the Wayleave.

Most of the older lines around the country have no Wayleave agreements in place. More recently, still operating under the 1927 act, Eirgrid seek easements for new lines.

Just because the line is there when the land is bought doesn't overcome the lack of an easement.

Again, this position is reflective of the way these matters are dealt with in the UK.

While you are correct about the nature of the wayleave notice I think you may be mistaken about the nature of the wayleave acquired. In all cases the wayleave is registred as a burden on the folio and no reference is made to it being terminable upon a transfer of ownership or anything or a similar nature. I would agree that this does make it more in the nature of an easement and there does seem to be some disconnection between what is stated in the Act, what the Act intends, and what happens in practice.

loremolis

234 wrote: »

While you are correct about the nature of the wayleave notice I think you may be mistaken about the nature of the wayleave acquired. In all cases the wayleave is registred as a burden on the folio and no reference is made to it being terminable upon a transfer of ownership or anything or a similar nature. I would agree that this does make it more in the nature of an easement and there does seem to be some disconnection between what is stated in the Act, what the Act intends, and what happens in practice.

There is no wayleave acquired under a wayleave notice, that's my point. The wayleave notice never mentions the acquisition of a wayleave because the acquisition of a wayleave is not included anywhere in the 1927 Act.

The 1927 Act does allow the ESB to acquire an easement for an existing line but that is Section 45 not Section 53.

You say "In all cases the wayleave is registered as a burden on the folio.."
I think you are crossing between a wayleave and an easement to easily. While the ESB can agree a wayleave with a landowner for the erection and retention of a line, they can't acquire one.

A wayleave, in terms of an electricity line, is an agreement/contract between parties but does not bind the land in perpituity.
An easement is capable of registration on the folio registered and binds the land in perpituity.

In terms of an electricity line, a wayleave and an easement are not the same thing.

It's a flaw in the legislation but given that it's from 1927, that's quite possible.

Our man in Havana

Surely then a landowner cannot stop the ESB routing a line over one property?

loremolis

Our man in Havana wrote: »

Surely then a landowner cannot stop the ESB routing a line over one property?

It's not clear to me where you've gotten this from.

However, in my experience, a landowner can stop the ESB routing a line over one property if that line has nothing to do with the supply to that property.

daenerysstormborn3

Our man in Havana wrote: »

Surely then a landowner cannot stop the ESB routing a line over one property?

You're correct and I can confirm this based on the experience of my parents when they moved to a rural part of Kerry and had to have both telephone wires and electricity wires routed through land belonging to multiple neighbours. The neighbours had no problem with the work being carried out but ultimately they had no choice.

234

loremolis wrote: »

There is no wayleave acquired under a wayleave notice, that's my point. The wayleave notice never mentions the acquisition of a wayleave because the acquisition of a wayleave is not included anywhere in the 1927 Act.

The 1927 Act does allow the ESB to acquire an easement for an existing line but that is Section 45 not Section 53.

You say "In all cases the wayleave is registered as a burden on the folio.."
I think you are crossing between a wayleave and an easement to easily. While the ESB can agree a wayleave with a landowner for the erection and retention of a line, they can't acquire one.

A wayleave, in terms of an electricity line, is an agreement/contract between parties but does not bind the land in perpituity.
An easement is capable of registration on the folio registered and binds the land in perpituity.

In terms of an electricity line, a wayleave and an easement are not the same thing.

It's a flaw in the legislation but given that it's from 1927, that's quite possible.

What I'm saying is that where a wayleave is granted by the landowner to the ESB (by deed, I know that a notice does not achieve this) then this is registered agains the folio and hence becomes binding on the land even when transferred to a new owner. This happens in all cases where a wayleave is granted to the ESB.

loremolis

234 wrote: »

loremolis wrote: »

There is no wayleave acquired under a wayleave notice, that's my point. The wayleave notice never mentions the acquisition of a wayleave because the acquisition of a wayleave is not included anywhere in the 1927 Act.
The 1927 Act does allow the ESB to acquire an easement for an existing line but that is Section 45 not Section 53.

You say "In all cases the wayleave is registered as a burden on the folio.."
I think you are crossing between a wayleave and an easement to easily. While the ESB can agree a wayleave with a landowner for the erection and retention of a line, they can't acquire one.

A wayleave, in terms of an electricity line, is an agreement/contract between parties but does not bind the land in perpituity.
An easement is capable of registration on the folio registered and binds the land in perpituity.

In terms of an electricity line, a wayleave and an easement are not the same thing.

It's a flaw in the legislation but given that it's from 1927, that's quite possible.

What I'm saying is that where a wayleave is granted by the landowner to the ESB (by deed, I know that a notice does not achieve this) then this is registered agains the folio and hence becomes binding on the land even when transferred to a new owner. This happens in all cases where a wayleave is granted to the ESB.

Ok, gotcha, you call that a wayleave, to me that's an easement. It binds the land forever regardless of ownership.

To me a wayleave is the one that doesn't bind the land.

234

Agreed, I think that it's more in the nature of an easement although notice is served under s.53 and it's notionally called a wayleave in the deed of grant.

loremolis

234 wrote: »

Agreed, I think that it's more in the nature of an easement although notice is served under s.53 and it's notionally called a wayleave in the deed of grant.

The question remains as to what is the legal status of lines that do not have the benefit of either an easement or a wayleave.

If some lines have them (an easment or wayleave), and some lines don't, then what is the difference in legal standing between the lines that do and the lines that don't?

234

loremolis wrote: »

The question remains as to what is the legal status of lines that do not have the benefit of either an easement or a wayleave.

If some lines have them (an easment or wayleave), and some lines don't, then what is the difference in legal standing between the lines that do and the lines that don't?

Well I would imagine that since thre is a power under s53 to place lines, with (s.53(4)) or without (s.53(5)) consent then the only issue i can think of is access, but even this seems to be covered under s.53(9). Section 53 generally gives some pretty draconian powers to the ESB, but they are all subject the the constitutionalright of the landowner to compensation. So they are really backed into a corner and forced to come to an agreement. So I would image that if there was a line placed where there was no wayleave agreement then the ESB would probably pay compensation if asked by the landowner but I don't think there would be any chance of getting it removed.

highdef

I really was not expecting this much in the way of amazingly indepth replies. Some fascinating legal facts and jargon have come to light that I would never have even considered.
However, from what I can tell after reading through everything so far is that a movement of the current overhead is unlikely and compensation is my only possible positive outcome? I actually don't really have any want for compensation as money will not stop all the birds putting mounds of **** all over the garden and pathways. Looks like there's not much I can do so.....depending on who I should believe of course!

234

It's alwyas worth asking. ESB Networks can be very accomodating. Also, if you want a definate answer then consult a solicitor.

Davy

234 wrote: »

Also, if you want a definate answer then consult a solicitor.

might be cheaper to pay for the extra pole to divert it.

loremolis

I came across this article recently. While it's not going to help the OP (sorry OP), it's an interesting view of the way these matters are dealt with in the UK.

I'm sorry the link is so long.

http://webcache.googleusercontent.com/search?q=cache:kS76zzrCmycJ:www.biggartbaillie.co.uk/ideas--insights/all-articles/planning--construction/an-electricity-surge---two-cases-concerning-the-electricity-act+&cd=40&hl=en&ct=clnk&gl=uk

This is the relevant part, sorry it's even longer.
An Electricity Surge - Two Cases Concerning The Electricity Act

Tuesday, January 12, 2010
by Murray Shaw
The Scottish Courts have decided two cases (concerning very different issues) in relation to the Electricity Act and the proper interpretation of this legislation. The situation is a bit like buses – no cases for ages then two come along at once!
The first decision was issued on 20 November 2009 and involves Patersons of Greenoakhill Limited v SP Transmission Limited. The decision was a decision of Lord Glennie but it is to be appealed to the Inner House of the Court of Session.
The Electricity Act 1989 in effect set up the privatised electricity industry. Though private companies, those companies who are licensed under the Act to supply or transmit electricity are the beneficiaries of significant rights and powers (arguably necessary in the public interest to permit the supply of electricity).

In Scotland many electricity lines are put in place on the basis of wayleaves. These are not registered and in effect are contractual arrangements between the relevant electricity company (or often in reality their predecessor in title) and the land owner. Typically they entitle the land owner to give notice requiring the electricity company to remove the line over that land owner’s land within the period specified in the wayleave. The statutory provisions equally apply where there has been a transfer of title so the successor land owner (who will not be bound by the wayleave) can give notice or where no wayleave exists at all (when a land owner can give notice requiring the electricity company to remove the relevant line). In all these circumstances the electricity company is entitled to apply for a necessary wayleave in accordance with the provisions of Schedule 4 of the Electricity Act 1989.
In this case Patersons of Greenoakhill gave notice to SP Transmission Limited requiring SP Transmission Limited to remove a stretch of line over land owned by Patersons of Greenoakhill. Scottish Power applied to Scottish Ministers for a necessary wayleave. If such an application is made timeously then the obligation to remove the line is suspended until the necessary wayleave application has been determined. In this case however the parties went into a period of negotiation and the application for the necessary wayleave was sisted (stayed) for a considerable period of time. Eventually the line in question was removed by Scottish Power as it was a line that was no longer required for their operations. In fact the removal of the line had been programmed for some considerable time, the issue being the timing of that removal.
If a necessary wayleave is granted then the land owner may have an entitlement to compensation under the Act. In this case no necessary wayleave had been granted but Patersons of Greenoakhill made a substantial claim for compensation nonetheless. The case was really concerned about whether or not there was any right to compensation and if so, on what basis. This argument was advanced by Patersons on three different bases, namely:-

1. That keeping the lines in place after the application for the necessary wayleave in itself constituted a necessary wayleave. Lord Glennie rejected this argument on the basis that this approach was clearly at odds with the statutory position. No necessary wayleave had in fact been granted.
2. That there was a right to compensation at common law as a result of additional expense caused to the Pursuers as a result of the “compulsory occupation” by Scottish Power in terms of the provisions of Schedule 4 to the Act. In effect the fact that Scottish Power had applied for a necessary wayleave entitled them to maintain the line in place pending determination of the application – this was equated to “compulsory occupation”. This was also rejected by Lord Glennie. Lord Glennie indicated it was difficult to identify from the pleadings any proper legal basis for the argument and that he did not consider any relevant arguments had been advanced to him.
3. The third and last line of argument which the Pursuers accepted was “a poor third alternative” was that there had been some form of implied continuation of the previous wayleave notwithstanding the fact that Patersons had given notice to bring that wayleave to an end. It was that notice in fact which resulted in Scottish Power making the application to Scottish Ministers for a necessary wayleave. Lord Glennie did not consider that the case put forward by the Pursuers on this basis was relevant particularly having regard to the sums claimed by way of compensation. However given the nature of the arguments Lord Glennie was prepared to allow the Pursuers, Patersons of Greenoakhill, an opportunity to amend their pleadings in this regard should they wish to do so.

In fact when the case called before him to decide upon further procedure Patersons made clear it was their intention to appeal principally in relation to Lord Glennie’s decision on the interpretation of the Act about whether or not a necessary wayleave had been constituted in all the circumstances of the matter ((a) above). Lord Glennie accordingly dismissed the case thereby clearing the way for that appeal to take place.
While this case may be thought to be essentially extremely technical and of limited relevance, the consequences are potentially significant. There are literally thousands of miles of electricity lines within the UK which operate within the statutory framework considered in this case. While applications for necessary wayleaves are relatively rare the outcome of this case (particularly in relation to what compensation may or may not be payable – an issue Lord Glennie did not get to the stage of addressing) may be significant.