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High Court

ESB takes court action to fight release of transcript in pylon CPO compensation case

The ESB had been ordered to release a transcript of negotiations for compensation previously.

THE ESB HAS taken High Court action over a direction to release a transcript of negotiations for compensation over the building of electricity pylons on landowners’ property.

The semi-state has filed papers against the office of the Commissioner for Environmental Information, which last August granted the release of the transcript of a property arbitration hearing to transparency campaigners Right to Know.

The ESB previously maintained that there was a risk of monetary loss and loss of future business opportunities connected with release of the transcript.

Pylons have been a source of significant controversy, particularly over the past decade as they have often required large developments across private land.

The case dates back to April 2020 when Right to Know requested a soft copy of the transcript of a hearing held before a property arbitrator over the compulsory purchase order (CPO) of a private land for an electricity pylon infrastructure. 

These arbitration hearings typically take place to help decide compensation for a landowner when State bodies enact a CPO for a development.

The ESB was intending to build pylons across privately owned land and the ESB had exercised its statutory powers to CPO part of the land for development. 

However, the ESB refused a request from Right to Know to access the transcript of the property arbitration hearing, contending that it was manifestly unreasonable under regulations for Access to Information on the Environment (AIE) and that the transcript was not “environmental information”.

It further contended that the transcript was the intellectual property of the stenography company it employed to record the arbitration hearing, but the commissioner later found that the company’s work could not be considered as such as it was not “original thought”. 

August decision

In its decision published in August, the Commissioner for Environmental Information said the ESB relied on an earlier court decision in support of its stance. 

This position held that it “must assume that any person requesting the release of information” related to intellectual property rights will “commercially exploit it or otherwise do something in respect of that information . . . which would constitute an unauthorised infringement of the intellectual property rights”.

Following an appeal by Right to Know, the Commissioner decided to annul ESB’s decision to refuse access to the transcript and direct release of the transcript to the appellant.

The semi-state has appealed the decision to the High Court on a point of law, though it is currently unknown what argument it is putting forward for its appeal. 

The case is due for mention on 21 November in the High Court.

Right to Know solicitor Fred Logue told The Journal there is “a huge amount of public money being sent on building this infrastructure so it’s important that people see how the decisions are arrived at and can have confidence in them”. 

“The infrastructure does impinge on people’s rights, like landowners,” he added.

He said that property arbitration hearings “are public hearings” that can be attended by anybody, but are rarely if ever published.

“We believe the Commissioner made the right decision but we will study the appeal and will be supporting the commissioner in defending the appeal,” Logue said. 

The ESB and Commissioner for Environmental Information have been contacted for comment.

With reporting by Rónán Duffy