Cusack v Harrow London Borough Council

  Mr Justice Maddison : 1.                  I have been provided with a helpful lever arch file entitled “Appeal Bundle”.  It contains two sections.  Section B is the bundle of documents used at the Willesden County Court from which this appeal has been brought.  Section A is a bundle of documents prepared for the purposes of the appeal itself.  Unless otherwise stated, page references in this judgment are to the pages in section B. 2.                  This appeal arises out of the decision of the London Borough of Harrow, the Defendant and Respondent, to which I will refer as “Harrow”, to erect what for the moment I will refer to as barriers on the pavement of Station Road, Harrow immediately adjacent to the paved forecourt at the front of the property, 66, Station Road, the freehold of which is owned by the Claimant and Appellant Patrick Joseph Cusack, to whom I will refer as “Mr Cusack”, and his wife Kathleen Cusack, and from which Mr Cusack has conducted a Solicitor’s practice since 1969.  Harrow wishes to erect these barriers to prevent vehicles from moving in either direction between the forecourt and the adjacent pavement and carriageway.  Harrow considers that this endangers pedestrians and other road users.  3.                  The relevant historical facts are not disputed and can be summarised quite shortly.  Mr Cusack’s parents became the freehold owners of No. 66 in December, 1969.  At some time before this the front wall of the property had been removed and the front garden had been covered in hard standing material to create a forecourt.  The forecourt is wide enough to accommodate two parked cars, and ever since December 1969 it has been used on a regular basis for the parking of cars belonging to Mr Cusack, his wife, his professional clients and his staff.  Mr Cusack and his wife became the freehold owners of the property in 1977. 4.                  When Mr Cusack acquired the property, the kerb of the pavement outside it was raised in the usual way along its entire width.  However, some 12 to 15 years ago an uncontrolled pedestrian crossing was constructed in Station Road, roughly in line with the left hand side of No. 66 as viewed from the carriageway.  The kerb stones at each side of Station Road were dropped, to allow access to and egress from the crossing, and the adjacent areas were paved with studded or “tactile” paving stones.  In the centre of the road, which has a single lane in each direction, a pedestrian refuge or island (“the island”) was built.  The crossing and the island can be seen from different angles at pages 132, 153, 163, 245 and 260.  As appears from the statement of Harrow’s witness Barry Philips, to which I will return later, the crossing was designed and provided with disabled persons, including the partially sighted, in mind.  5.                  The result is that to park a vehicle to the right of the forecourt of No. 66, again as viewed from the carriageway, its driver would have to drive up over the raised kerb and over the pavement.  To park a vehicle to the left of the forecourt its driver would be able to drive at least in part over the dropped kerb associated with the crossing, and it appears that the dropped kerb is indeed used for such a purpose.  It is important to note, however, that the kerb was not dropped to ease vehicular access to the forecourt, but for the benefit of pedestrians; and that the right hand side of the dropped kerb looking towards the front of the property, is very close to the left hand boundary of the property and plainly not positioned with a view to providing vehicular access to the forecourt.  In my view the dropped kerb cannot be considered as a means of access to Mr Cusack’s property.  6.                  From 23rd April 2008 onwards there were a number of communications between Harrow and Mr Cusack during which Harrow asked or told him to remove cars from the forecourt of No. 66 and to stop driving onto it.  Harrow also warned him that it might take steps, for example by erecting bollards, to prevent cars from driving onto the forecourt.  In due course Harrow wrote a letter dated 13th January 2009 which appears at page 173 stating that “the current practice of vehicles being driven over the footway to access properties in Station Road causes danger to both pedestrians and other motorists”.  It added that Harrow had decided that a vehicle crossing to permit access to the forecourt would not be appropriate “given the road and pedestrian traffic in the area”.  Then on 6th March 2009 an organisation called EnterpriseMouchel wrote a letter which appears at page 190.  It was addressed “to whom it may concern” and appears to have been sent to the occupiers of several properties on Station Road, of which No. 66 was one.  The first part of the letter read as follows: “This letter is to inform you that Harrow Council and its partner EnterpriseMouchel are planning to install barriers from 36 – 76 Station Road.  The barriers are being installed to the back of the footway to prevent vehicles from driving over raised kerbs and footways to access private property along the road, which is an offence under the Highways Act 1980.  The barriers will prevent further footpath damage and increase pedestrian safety along this section of Station Road, which is considered one of the busiest roads in the borough.  We have assessed your property to establish whether a vehicle crossing could be approved but unfortunately, because of the depth of your front garden, it does not comply with Council standards.  As such, any application made will be declined.  The barrier works will begin on 23 March and be completed by the end of the month.  To allow us to carry out the works we will need any vehicles to be removed from your property.  Please find alternative parking.” 7.                  In two respects, this letter was misleading.  First, I was told during the hearing of the appeal that it was and is not in fact Harrow’s intention to place barriers in front of Nos. 46, 48, 56, 58, 60 and 74 – 76 Station Road.  As appears from pages 252 to 262, all these properties are presently served by dropped kerbs allowing vehicular access to them.  In the case of all except 74 – 76 the dropped kerbs are in Station Road itself.  Though it is not entirely clear from pages 254 and 255, it appears that nos. 46 and 48 share a dropped kerb.  In the case of 74 – 76 the dropped kerb is in the side road shown on page 262, which allows vehicles to park on the forecourt but parallel with the frontage of the building.  For completeness, I would add that there are fences or barriers in front of Nos. 36 to 44.  There are barriers in front of No. 50 though cars can gain access to the forecourt of No. 50 not directly from Station Road but from a driveway that serves No. 52, which itself is served by a dropped kerb.  There are no barriers but there are substantial fences in front of Nos. 54, 62 and 64, though the fence in front of Nos. 62 and 64 may well be temporary and associated with renovation works at those properties.  There are barriers in front of Nos. 68 to 72.  8.                  It is to be noted that of the properties from 36 to 76 Station Road No. 66 is the only one which does not have a dropped kerb provided for vehicular access but the forecourt of which is nevertheless being used for parking.  It is also the only one the vehicular access to the forecourt of which is via and/or in close proximity to a pedestrian crossing. 9.                  The second respect in which the letter of 6th March was inaccurate is that I was told by Counsel during the hearing of the appeal that further research has shown that it is not in fact an offence contrary to the 1980 Act or at all to drive a vehicle over a raised kerb, across a pavement and directly onto the frontage of an adjacent property.  10.              Doubtless as a result of having received the letter of 6th March, it was on                 17th March 2009 that Mr Cusack commenced proceedings in the Willesden County Court, claiming an injunction to restrain Harrow from erecting such barriers, alternatively damages for breach of easement, nuisance or trespass.  He asserted that he had a right of way from his property over the pavement and onto the road carriageway, on foot and with vehicles, which he had acquired by prescription.  It is now agreed by the parties that although Mr Cusack does indeed have such a right, it is a common law right, often referred to as a “frontager’s right”, rather than a right acquired by prescription.  Given the parties’ agreement, there is no need to explain in this judgment the reasoning which has led them to their conclusion, though I should say that it is a conclusion with which I agree.  In fact, the legal basis of Mr Cusack’s right does not affect the matters which arise for decision in this appeal.  11.              At a hearing on 20th March 2009 at the Willesden County Court Harrow undertook not to commence any work affecting 66 Station Road until trial or further order.  12.              On 13th August 2009 Harrow wrote again to Mr Cusack (see pages 193 – 195) stating that it had received Counsel’s Opinion, and maintaining that it was entitled to act as it intended by virtue of its statutory powers under section 80 of the Highways Act 1980 to which I will refer in detail later in this judgment.  13.              In its Defence and Counterclaim dated 9th September 2009 Harrow asserted that it had formed the view (for reasons set out in the pleading) that driving between the forecourt and the carriageway endangered the safety of those in vehicles and of cyclists using the carriageway, and of pedestrians using the pavement and crossing the carriageway.  It further asserted that it was entitled to erect “fences and/or posts/pillars/rails” in the exercise of its powers under section 80, alternatively section 66 of the 1980 Act, and counterclaimed a declaration to that effect.  14.              In his Reply and Defence to Counterclaim dated 2nd October 2009 Mr Cusack contended, inter alia, that the powers under sections 66 and 80 of the 1980 Act could not be exercised in a way that entirely removed a right of vehicular access which he had enjoyed without interruption for up to 40 years; or in a way which infringed disproportionately his property rights under Article 1 of Protocol 1 of the European Convention on Human Rights (“the Convention”).  Mr Cusack also denied that he was endangering the safety of other road users, and disputed that Harrow had formed its stated view to the contrary bona fide and by due process.  He denied that Harrow was entitled to exercise its powers under sections 80 or 66 of the 1980 Act as intended.  15.              The action was heard by His Honour Judge McDowall at the Willesden County Court on 4th March 2010.  16.              The Judge had two statements from Mr Cusack dated 6th November, 2009 and 23rd February 2010, to each of which documents were exhibited.  I have read the statements and the exhibited documents in their entirety, and what follows is intended only as a summary.  17.              In the first statement Mr Cusack said that although he accepted that the forecourt at No. 66 Station Road was not deep enough to meet Harrow’s standards, the same applied to the front gardens of Nos. 56 (see e.g. page 68), 58 (see e.g. page 69) and 60 (see e.g. page 70) Station Road to all of which vehicles had access via dropped kerbs.  He contended that driving onto the forecourt of No. 66 was no more dangerous than driving onto the forecourt of No. 46 (see e.g. page 67) to which again vehicles had access via a dropped kerb.  He said that the pedestrian refuge outside No. 66 “concentrates the mind” and he had never known of any accident or collision with any vehicle, cyclist or pedestrian when driving to or from the forecourt to No. 66.  18.              In his second statement he made several further points.  These included the point that he could usually reverse from the forecourt during a gap in the traffic caused by traffic lights about 100 metres to the north of No. 66.  He was able to see people approaching from all three directions when reversing.  He reversed very slowly and stopped if any pedestrian or other user was approaching.  He emphasised that no vehicles entering or leaving No. 66 had ever caused an accident.  Only a small number of vehicle movements to and from the forecourt were made each day.  The safety of pedestrians was not compromised by movements of vehicles to and from the forecourt “except insofar as any movements to and from any forecourt generally compromise the safety of pedestrians”.  Moreover, Harrow had never approached him with a view to his paying for the re-positioning of the island.  19.              Harrow relied on evidence from four sources.  The first was the witness statement dated 12th November 2009 (pages 91 to 96) of Barry Philips, an interim service manager employed by Harrow with responsibility for parking, traffic and road safety matters, amongst others.  He said that Station Road was part of the A409 and “a vital link route through the borough of Harrow” and “of key importance to local and through traffic”.  Five bus routes operated along it, heavy lorries used it, and in all it carried about 27,000 vehicles each week day.  In addition, the proximity of Harrow and Wealdstone station generated considerable pedestrian movement.  As the local highway authority, Harrow was responsible for the planning, development, control, maintenance and improvement of the road network within the borough.  In that regard it had erected bollards and barriers in various different parts of Harrow in essence to prevent vehicles from gaining access to pavements or driving across them to gain access to other areas (see pages 115 to 124).  Harrow had also placed bollards or barriers on the pavement immediately outside several other properties in Station Road, though by no means all.  Such bollards or barriers were most often erected to address safety concerns, damage to the infrastructure and unauthorised use by obstructing the footway or parking on the pavement. 20.              In relation to Station Road, Mr Philips stated that an elected councillor (in fact, Councillor Susan Hall, the Deputy Leader – see page 178) had raised the question of unauthorised driving over the footway.  Council officers had then considered the safety of highway users and possible damage to the surface of the footway.  In relation to the former, they would have had regard to the need to reverse out of the premises concerned with a limited field of vision onto a road carrying a heavy flow of traffic; and to the presence of cyclists, large vehicles and buses.  In relation to the latter they would have taken into account the possibility of damage to the dropped kerb for pedestrians arising out of its use by motor vehicles to gain access to the forecourt of No. 66.  In all the circumstances Harrow had decided that barriers should be placed to prevent vehicular access to and egress from No. 66.  21.              Mr Philips also referred to a procedure under section 184 of the 1980 Act whereby anyone might request a highway authority to construct a vehicle crossing over a footway or verge in the highway; whereupon the authority might approve the request with or without modification, propose alternative works or reject the request having regard to the needs to prevent damage to the footway or verge, and, so far as practicable, to ensure safe access to and egress from the premises and to facilitate the passage of vehicular traffic in highways.  Mr Philips pointed out that Harrow had published a policy document entitled “A Guide to Applying for a Vehicle Crossing”.  The most recent version was dated March 2009.  It indicated that the area to which the crossing was to give access must be at least 4.8 metres deep “… to make sure your car does not overhang onto the footpath and obstruct pedestrians”.  Other matters taken into account by Harrow when considering such a request would include road safety issues similar to those referred to earlier in this judgment.  Mr Philips stated that a vehicle cross-over for No 66, Station Road would not be authorised or constructed by Harrow.  Indeed, Harrow had already said as much in their letter of 6th March 2009 to which I have already referred.  (I interpose here to say that it was explained to me during the hearing that planning permission would be necessary if a private individual wished to construct a vehicle crossing himself, or if any such crossing would require or be associated with alterations to the property concerned.  I need not examine this issue in any further detail because it is not suggested that          Mr Cusack has made or intends to make any application for planning permission or pursuant to s.184 of the 1980 Act.) 22.              The second source of evidence upon which Harrow relied was a report dated 11th November 2009 by Alan Rookes, Technical Director of Capita Symonds Limited (pages 137 to 154).  The report was exhibited to Mr Philips’s witness statement, though it did not itself contain a statement of truth and no application had been made by Harrow to adduce expert evidence.  In the circumstances, in fairness to Mr Cusack, I propose to disregard Mr Rookes’s report.  23.              The third source of evidence was the witness statement of Andrew Appleby dated 12th November 2009.  Mr Appleby was a service manager employed by Harrow, but his statement (pages 156-7) simply set out some of the historical background, and confirmed that Harrow had placed bollards in many locations to control vehicles driving over and parking on footways and verges. 24.              Finally, there was a witness statement from David Cannon, a vehicle crossing engineer for Harrow, also dated 12th November 2009.  Mr Cannon had measured the depth of the forecourt at No. 66 as 4.08 metres.  He made the point that the island made manoeuvrability difficult for safe access to and egress from 66, Station Road.  Moreover, the required safety margin of 1.8 metres between two dropped kerbs, one for pedestrians and the other for vehicles, would make it physically impossible to construct a dropped kerb access for No. 66 of the minimum width of 3.3 metres which Harrow required.        25.              His Honour Judge McDowall found that Harrow was entitled to place barriers or posts in the position they intended by virtue of section 80 of the Highways Act, 1980.  Although Mr Cusack had a right of access to the highway enjoyed by the owner of any property fronting onto the highway, that right was capable of being interfered with by the exercise of statutory powers.  The Judge acknowledged that section 80 did not provide for the payment of compensation by a highway authority exercising its powers under that section.  However, the terms of the section were clear, and a Circuit Judge had no jurisdiction to declare a statutory provision incompatible with the Convention pursuant to section 4 of the Human Rights Act, 1998.  With that I agree.  Section 4(5) makes this clear.  The Judge appeared to add that he also did not have the power to read and give effect to a statutory provision in such a way as to render it compatible with Convention rights, pursuant to section 3 of the 1998 Act.  With respect, I disagree.  Section 3 does not limit its application to particular courts in the way that section 4 does.  26.              The Judge went on to compare and contrast the state of the pavement outside No. 66 with that outside No. 56, shown at page 257, where there was a dropped kerb running along almost the entire width of the property which had been provided, the Judge assumed, pursuant to a successful application for planning permission.  27.              Having ruled that the clear terms of section 80 entitled Harrow to act as they intended to do pursuant to that section, the Judge thought it unnecessary to rule on Harrow’s alternative argument that if they could not rely on section 80 they could rely instead on section 66 which did provide for the payment of compensation.  The Judge also rejected Mr Cusack’s contention that Harrow would be entitled to act under section 124 et seq. of the 1980 Act, which also provided for compensation, since those sections applied only to the entire blocking off of a private access through a highway, which was not what Harrow proposed to do.  Accordingly, the Judge dismissed Mr Cusack’s claim.  28.              It will be convenient at this stage to set out the material provisions of the sections 80, 66 and 124 of the 1980 Act.  Section 80 provides: “(1) Subject to the provisions of this section, a highway authority may       erect and maintain fences or posts for the purpose of preventing access to – a)      a highway maintainable at public expense… (2)        A highway authority may alter or remove a fence or post erected by them under this section. (3)        The powers conferred by this section shall not be exercised so as to – a)            interfere with a fence or gate required for the purpose of agriculture; or  b)            obstruct a public right of way; or c)            obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under part III of the Town and Country Planning Act, 1990 (or under any enactment replaced by the said part III); or d)            obstruct any means of access which has constructed, formed or laid out before 1st July 1948…”. Section 66 provides, again insofar as it is material: “(2) A highway authority may provide and maintain in a highway… such        raised paving, pillars, walls, rails or fences as they think necessary          for the purpose of safeguarding persons using the highway. (3) A highway authority may provide and maintain in a highway… which           consists of a footpath or bridle-way, such barriers, posts, rails or    fences as they think necessary for the purpose of safeguarding persons using the highway… (5) The power conferred by sub section (3) above… shall not be exercised         so as to obstruct any private access to any premises…       (8) A highway authority or council shall pay compensation to any person              who sustains damage by reason of the execution by them of  works under             sub section (2) or (3) above.” Section 124 provides:  “(1) Subject to sub section (3) below, where the highway authority for a highway consider that a private means of access from the highway to any premises is likely to cause danger to, or interfere unreasonably with, traffic in the highway, they may be authorised by an order made under this section to stop up the means of access…   (3) No order… shall be made… unless … a)      …no access to the premises from the highway in question is reasonably required, or b)      …another reasonably convenient means of access to the premises is available or will be provided…”. (Section 126 provides for compensation to be paid to any person who suffers damage as a result of such a stopping up order.) 29.              I now propose to summarise and express a view on the merits of the arguments advanced by the parties which are based on domestic law.  Later in this judgment I will consider the impact of sections 3 and 4 of the Human Rights Act, 1998 and of the European Convention on Human Rights.  30.              It is first necessary to consider to what extent Parliament may empower a highway authority either to limit or to remove a right of access.  In my judgment it is clear that Parliament may empower a highway authority to do either.  In Marshall v. Blackpool Corporation [1935] A.C. 16, 22 Lord Atkin said: “The owner of land adjoining a highway has a right of access to the highway from any part of his premises… it would be remarkable to find this well established right of an adjoining owner taken away without compensation, especially by a local Act, unless there were very plain words to that effect.” Lord Atkin clearly contemplated that such rights could be removed altogether, though clear statutory provisions would be necessary to achieve this.  31.              Repeated reference has been made in argument to the decision of the House of Lords in Ching Garage Ltd v. Chingford Corporation [1961] 1 All E.R. 671, in which a distinction was drawn between statutory powers to limit and those to remove rights of access.  In my view, however, that case did not suggest that Parliament could not remove, rather than limit, such rights.  In Ching, the House was considering a proposal to build a small pedestrian refuge in the middle of a wide means of vehicular and pedestrian access to a garage.  The means of access had originally been built pursuant to the Public Health Acts Amendment Act, 1907.  The pedestrian refuge was to be built pursuant to s.67 of the Highways Act, 1959 (the predecessor to s.66 of the 1980 Act set out above).  Section 67 allowed a highway authority to erect, inter alia, raised pavements in the interest of pedestrian safety.  This section did not refer to access or means of access at all, and the proposed refuge would not prevent or interfere in any significant way with any access or means of access.  Vehicles and pedestrians would be able to get into and out of the garage as before.  Since no access was being prevented, the highway authority could not have acted pursuant to s.85 of the 1959 Act (the predecessor of s.80 of the 1980 Act).  Thus s.85 did not fall to be considered; and in any event, none of their Lordships suggested that a highway authority was not empowered by s.85 to remove a right of access altogether if it saw fit.  Indeed, Lord Radcliffe referred back to the Marshall case and said: “In my opinion, it is well-settled law that a highway authority exercising statutory powers to improve or maintain a street or highway… is empowered to carry out its works, even though by so doing it interferes with or obstructs frontagers’ rights of access to the  highway” (my emphasis).  Reliance is placed in paragraph 7 of Mr Dilworth’s Addendum Skeleton Argument on Lord Radcliffe’s reference at page 677 of Ching to “a means of access formed under the statutory power, which is a way of limiting and controlling the original common law right of a frontager”.  On examination, however, this has no bearing on the present case.  Lord Radcliffe was not suggesting that Parliament’s powers were confined to limiting or controlling a frontager’s right of access.  What Lord Radcliffe was saying was that no distinction was to be drawn between the right of a local authority exercising statutory powers to interfere with or obstruct (a) a means of access itself formed under a statutory power and (b) a common law right of access such as a frontager’s right. 32.              Against that general background I turn to s.80 of the 1980 Act and begin by considering whether any of the exceptions in s.80(3) apply in this case.  In my judgment none of them does.  As to s.80(3)(a), no agricultural purposes arise here.  As to s.80(3)(b) there is no public right of way from the highway to Mr Cusack’s forecourt.  As to s.80(3)(c), in my view no means of access for vehicles to the forecourt have ever been constructed, formed or laid out.  Vehicles have always simply driven up the kerb and then onto and over the pavement.  I do not consider that the knocking down of the wall and the provision of the hard standing in front of the property constituted the construction, formation or laying out of a means of access for the purposes of s.80(3)(c).  His Honour Judge McDowall appears to have taken the same view.  In any event, there is no evidence as to the time or times at which the wall was removed and the hard standing was provided, or as to whether either or both were done with or without planning permission.  For similar reasons, I do not consider that s.80(3)(d) arises in this case either.  33.              Mr Cusack contends that even if his case does not fall within the provisions of s.80(3) Harrow are nevertheless not entitled to rely on s.80, for different reasons.  34.              His first submission is that the section does not apply at all to circumstances such as these.  The words “fences” and “preventing access” indicate that the section is confined to situations in which a highway authority removes all access to a highway.  Harrow does not seek to do this.  Although it seeks to remove vehicular access between no. 66 and the highway, it does not seek to remove pedestrian access.  Thus it may not rely on section 80. 35.              I cannot accept that submission. The section refers to “posts” in the alternative to “fences”, and posts would not normally be used to prevent or be capable of preventing all access to a highway.  In my judgment “preventing access” must be interpreted as referring both to all access and to particular means of access.  As Mr Weekes, Counsel for Harrow put it, the greater must include the lesser.  36.              Alternatively, Mr Cusack submits as follows. a)      A statute may permit a local authority to remove or interfere with a frontager’s right of access to the highway either at all or without compensation only by the use of clear words to that effect.  b)      Section 80 does not use clear words to that effect.  It does not specify whose access to the highway a highway authority may prevent, but only whose it may not.  It does not refer to frontagers’ rights of access at all.  It should be read so as not to apply to access by those exercising private rights of access in general or frontagers’ rights of access in particular.  c)      Alternatively, section 80 is entirely silent as to compensation.  If it cannot be read as excluding private or frontagers’ rights of access, it should be read as if it required a highway authority to provide compensation to frontagers whose rights of access are prevented. 37.              I accept submission (a). It is amply supported by authority (see eg the passage from the speech of Lord Atkin in Marshall referred to above).  Harrow do not argue to the contrary.  I cannot, however, accept submission (b). The words of s.80 are clear.  Had Parliament intended to exclude private rights of access in general or frontagers’ rights of access in particular from the application of the section it could and would have done so by a simple addition to s.80(1) or (3).  It is clear from s.80(3) that Parliament did consider what exclusions it wished to make.  The terms of s.80(3) and in particular s.80(3)(b) indicate by necessary implication that s.80(1) does apply to private rights of access.  Section 80(3)(b) excludes all public rights of way.  Only private rights of way or access are left.  Of these, particular ones are excluded by s.80(3)(a), (c) and (d).  They do not include frontagers’ rights, unless they fall within the ambit of those three paragraphs and, as previously stated, there is no evidence that     Mr Cusack’s rights of access fall within any of them.  Indeed, were all private rights of access excluded from the ambit of s.80 the entire section would be entirely or substantially otiose, given the exclusion of public rights by s.80(3)(b). 38.              Neither can I accept submission (c).  Again the words of s.80(1) are clear.  Had Parliament intended that compensation would be paid to those affected by the exercise of a highway authority’s powers under s.80 it could and would have said so, as indeed it did in relation to the powers conferred by sections 66 and 124. 39.              In relation to submissions (b) and (c) I appreciate that in Ching Lord Radcliffe said at page 676 that “the fact that an exercise of the statutory power involved the payment of compensation for damage done may support the argument that private rights are intended to be affected, just as its absence may be an argument of the view that they are not”.  He added, however, that “in neither case is it decisive”, and I repeat that in my view the words of s.80(1) are clear.  40.              Next, Mr Cusack submits that, albeit with compensation, Harrow could achieve its aims pursuant to s.124 of the 1980 Act, so that there is no need to construe s.80 as allowing Harrow to interfere with his frontager’s rights of access without compensation.  The same it is said would apply with even more force if (contrary to Mr Cusack’s submissions) Harrow could also achieve its aims pursuant to s.66.  For reasons I will explain later, I consider that Harrow could indeed have proceeded under s.66 though not under s.124.  However, in my judgment if Harrow were entitled to act under s.80, viewed independently, they would remain thus entitled even if they might also or alternatively have acted under s.66 or any other provision.  I can understand Mr Cusack’s displeasure that Harrow have relied principally on s.80, which does not require them to pay compensation, rather than on s.66 (or s.124) which do.  However, as Lord Radcliffe also said in Ching, this time at page 674, about the highway authority involved in that case: “if they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it”.  Even though Mr Cusack would be entitled to compensation if Harrow had to rely on s.66 (or s.124) I accept Harrow’s submission that it owes a fiduciary duty to its Council Taxpayers.  41.              I therefore conclude, applying principles of domestic law, that s.80 of the 1980 Act does entitle Harrow to carry out the works it proposes adjacent to the front of no. 66, and to do so without paying compensation. 42.              Mr Cusack further contends, however, that even if that is so, the Human Rights Act 1988 and the European Convention on Human Rights require a different construction to be placed on s.80. 43.              Insofar as it is material s.3 of the 1990 Act provides: “(1) So far as it is possible to do so, primary legislation…must     be read and given effect in a way which is compatible with     Convention Rights.                                (2) This section –                                                 (a) applies to primary legislation…whenever enacted;…”. 43. The Convention Rights referred to are rights under the European Convention on Human Rights and Fundamental Freedoms.  In this case the relevant provision of the Convention is Article 1 of the First Protocol, which provides: “Every person is entitled to the peaceful enjoyment of his possessions.  No   one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.  “The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…”. 44.              Section 3(1) of the 1998 Act has been considered in a number of cases in the domestic courts, including Ghaidan v. Godin-Mendoza [2004] UKHL 30, helpfully referred to in some detail in paragraphs 19 to 22 of the principal Skeleton Argument of Mr Dilworth.  What follows is intended only as a brief, but I hope an accurate summary of the relevant principles.  Section 3(1) requires the court to take an approach to statutory interpretation which is robust and quite different from principles of interpretation that were familiar before the advent of the 1998 Act.  Its application is not confined to the construction of ambiguous legislation.  It is the prime means by which the rights guaranteed under the Convention are to be “brought home”.  A declaration of incompatibility under s.4 of the 1998 Act is a measure of last resort.  Section 3(1) might require a court to give legislation a different meaning from that which would result from the application of ordinary principles of interpretation, or to depart from the unambiguous meaning the legislation would otherwise bear.  The only limitation is, as Lord Steyn put it in Ghaidan, “…that inherent in the use of the word ‘possible’ in section 3(1) is the idea that there is a Rubicon which courts may not cross”. 45.              Whether a particular interpretation of a particular statutory provision would involve crossing the Rubicon would obviously depend on the circumstances   of the particular case, but in my view helpful guidance is to be found in R. v. A (No. 2) [2002] 1 A.C. 45 at p87 per Lord Hope who said: “The rule [under s.3(1)] is only a rule of interpretation.  It does not entitle the judges to act as legislators…   The compatibility is to be achieved only as far as this is possible.  Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible.  It seems to me that the same result must follow if they do so by necessary implication, as this to is a means of identifying the plain intention of Parliament.”     This passage is cited in paragraph 43 (ii) of Mr Weekes’s Skeleton Argument on behalf of Harrow.  In paragraphs 17 and 19 of his supplemental Skeleton Argument, Mr Dilworth seeks to down play the significance of Lord Hope’s remarks, presumably because of their general tenor and the reference to “necessary implication”.  However, it seems to me that Lord Hope’s observations form part of the guidance to be obtained from the authorities, and to be consistent with the approach adopted by the House of Lords in another case, R. (Anderson) v. Secretary of State for the Home Department [2003] 1 A.C. 837, which was referred to by Lord Steyn in his speech in Ghaidan.  In the Anderson case, the House held that it was inconsistent with the right to a fair hearing by an independent and impartial tribunal guaranteed by Article 6 of the Convention for the Secretary of State to fix the minimum period which a life sentence prisoner must serve before being considered for release; and that since s.29 of the Crime (Sentences) Act 1997 expressed the deliberate legislative intent of entrusting such decisions to the Secretary of State, it could not be read and given effect under s.3(1) of the 1998 Act in a way compatible with the convention; as a result of which a declaration of incompatibility was the only appropriate relief.  The approach of Lord Hope in A (No.2) is also consistent with the following observation of Lord Nicholls in Ghaidan at page 572: “Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of the legislation… The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed.” 46.              Just as s.3 of the 1998 Act has been considered in a number of decisions of the domestic courts, so has Article 1 of the First Protocol to the Convention been considered at a European level.  In Baner v. Sweden (1989) 60 D.R. 128, the Commission considered the distinction between deprivation of a person’s possessions, and control over his use of property, for the purposes of Article 1.  It observed that there could be deprivation of property where the measure complained of affected the substance of the property to such a degree as to amount to de facto expropriation.  On the other hand a measure affecting and re-defining rights of property owners would not normally be considered as expropriation even if some aspects of the right were interfered with or even taken away.  47.              Mr Cusack submits that s.80 of the 1980 Act should be read in accordance with s.3(1) of the 1998 Act as excluding from its provisions private rights of access in general or frontagers’ rights of access in particular; alternatively as providing that compensation should be paid if any private right of access prevented pursuant to s.80.  However, I accept Harrow’s argument that s.80 should not be read in that way.  For the reasons explained above, I take the view that Parliament evinced a clear intention to include private rights of access within the application of s.80, subject to the particular and express exceptions identified in s.80(3)(a), (c) and (d).  I repeat that, were private rights of access to be excluded, s.80 would be substantially if not entirely otiose, and I can see no legal or logical basis for distinguishing between frontagers’ rights and other private rights of access in this regard.  I also repeat my earlier view that the necessary inference from Parliament’s omission from s.80 of any reference to compensation, when compared with the express references to compensation in sections 66 and 124, is that Parliament intended that no compensation should be payable under s.80.  In my judgment the reading of s.80 in either of the ways proposed by Mr Cusack would require the court to act as a legislator and thus to cross the Rubicon. 48.              Having considered the 1998 Act and the Convention, it therefore remains my view that Harrow are entitled to act as they propose pursuant to s.80 of the 1980 Act without paying compensation.  49.              I have however considered whether the provisions of Article 1 of the First Protocol to the Convention could have helped Mr Cusack in any event.  In my view they could not.  To begin with, I regard this as a case to which the second paragraph of Article 1 would apply.  As a result of Harrow’s proposed action, Mr Cusack will not lose the property at No. 66.  It will remain his, and he will be able to use it when and for whatever purpose he has previously done so.  Neither will he lose his frontager’s right of access to the property.  He or any visitor or licensee will still be able to enter and leave the property at any time of the day.  What he will lose is one aspect of the right, namely the right to access it by a vehicle, or at least a vehicle with four wheels.  In those circumstances it is my view that the proposed action of Harrow would fall to be considered as a control of the use of property rather than a case of deprivation of possessions or expropriation.  50.              It has been held by the Commission in Baner and by the Court of Appeal in the Trailer case referred to in the following paragraph that the second paragraph of Article 1 does not guarantee a property owner a right of compensation.  51.              In any event, the second paragraph preserves the right of the state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.  A wide margin of appreciation is accorded to Parliament in this regard.  This is illustrated by the case of R. (Trailer and Mariner (Leven) Limited) v. Secretary of State for the Environment, Food and Rural Affairs and another [2005] 1 W.L.R. 1267.  The headnote of the Weekly Law Report, which seems to me accurately to summarise the judgment of the Court states, inter alia: “…while on actual or a de facto deprivation of property without compensation would normally infringe Article 1 of the First Protocol, restrictions on the use of property in the public interest without compensation, which fell short of de facto expropriation, would not normally do so unless the detrimental effect upon the individual far outweighed the public benefit; …when  considering whether the legislation controlling the use of property in the public interest infringed the Article a fair balance had to be struck between the general public interest and individual rights, tantamount to a requirement of proportionality, while affording to the legislature that measure of judgment appropriate to legislation aimed at a social problem or enacted for the general interest of the community; that provided the State could properly take the view that the public benefit outweighed the detriment to the individual a fair balance would be struck without any requirement of compensation…”. 52.              Parliament plainly thought s.80 of the 1980 Act to be necessary in the general interest, and I do not regard that as an unreasonable approach.  It would be impossible to predict the wide variety of factual situations with which a highway authority might be confronted and in which it might think it necessary to take action in the public interest.  I can see nothing wrong in the granting to highway authorities of a wide power to obstruct access to highways should the need arise.  Parliament will have known that actions taken by a highway authority pursuant to s.80 would be amenable to judicial review and liable to be quashed if for example they were “Wednesbury” unreasonable.  Moreover, dropped pavement crossings giving access to properties from carriageways for which planning permission was given are specifically excluded from s.80; and it is difficult to see how a proposal to interfere with a crossing constructed by a highway authority itself following an application under s.184 of the 1980 Act could be other than Wednesbury unreasonable. 53.              I turn from the legislation itself to its proposed use in the circumstances of this case.  This is not an application for Judicial Review, but I think it right to express the view that there is nothing unreasonable in Harrow’s approach.  Public safety considerations do in my view warrant the course that Harrow proposes to take.  I have taken into account the points made by Mr Cusack in this regard, including that there have not yet been any accidents; but in my view there is a significant risk of an accident in future if access to the front of No. 66 remains as it is.  Station Road is a very busy single carriageway road.  In my view it would require skilled experienced driving to mount and drive over the kerb onto the forecourt, or reverse back over the pavement down the kerb and back onto the road surface while avoiding the nearby island.  I am happy to accept that Mr Cusack has acquired the necessary skills, but there is no guarantee that all of his staff and clients using the forecourt will have done so.  In my view there is a danger of road traffic accidents involving vehicles if things remain as they are.  There is also the obvious risk of damage to the pavement, creating tripping hazards.  Moreover, given the character of the road and the proximity of the pedestrian road crossing, it is reasonable to suppose that the pavement in the immediate vicinity of No. 66 is quite widely used by pedestrians, and in my view the present arrangements present a potential danger to them as well.  The fact that a dropped kerb constructed specifically to allow pedestrians to walk onto and from the road crossing is being used by cars as a means of easier access to the forecourt of No.66 serves to emphasise the point.  54.              It has been suggested that Harrow’s failure to raise road safety arguments from the outset indicates bad faith on its part in raising them now.  It is also submitted that it has adduced no evidence to support these arguments in any event.  Thus in his Reply and Defence to Counterclaim and in his second statement dated 23rd February 2010 Mr Cusack asserts that Harrow did not rely on the issue of road safety until serving its Defence and Counterclaim.  In previous correspondence dated 23rd April 2008, 13th January 2009, 6th March 2009 and 13th August 2009 they had relied on the incorrect assertion that driving over the pavement to gain access to and from the forecourt constituted a criminal offence; and had said that they would install bollards or the like to “prevent unauthorised access” and “prevent vehicles from driving over raised kerbs and footways to access private property along the road”. 55.              It is true that these matters were referred to in these letters.  However in its letter of 13th January 2009 Harrow also said that “the current practice of vehicles being driven over the footway to access properties in Station Road, Harrow causes danger to both pedestrians and other motorists”.  It added that Harrow had decided that a vehicle crossing to permit access to the forecourt of no. 66 would not be appropriate “given the road and pedestrian traffic in the area”.  Then in its letter of 6th March 2009, EnterpriseMouchel (Harrow’s partner) also said that “the barriers will…increase pedestrian safety along your section of Station Road, which is considered one of the busiest roads in the borough”.  In my view there is no substance in the assertion that Harrow had not referred to road safety issues before proceedings were commenced or that they are acting in bad faith by doing so now.  56.              I turn to the argument that there is no evidence to support Harrow’s road safety arguments.  In my view there is in fact some evidence from Mr Philips, but this is principally a matter for my judgment based on the evidence which is available of the layout and traffic conditions of Station Road itself, the forecourt to no. 66, and the pedestrian crossing and dropped kerb associated with it to which I have already referred.  I have already expressed my conclusions in this regard.  The fact that this is a matter principally for the judgment of the court was clearly the approach of Viscount Simonds in Ching. At page 673 he said: “It is obvious on the barest inspection of the plan that the highway authority would be justified in thinking that the safety of pedestrians demanded some break in the broad expanse of carriageway which constituted the approach from the garage to the main highway.” 57.              In paragraphs 30 and 31 of his Skeleton Argument of 12th March 2010 Mr Dilworth applies for a declaration pursuant to s.4 of the 1998 Act that s.80 of the 1980 Act is incompatible with the European Convention, should I decline (as I have declined) to interpret s.80 in such a way as to exclude frontagers’ rights from its operation, and/or to require the payment of compensation to a frontager whose rights of access are prevented under the section.  However, no application for such a declaration was or could have been made when these proceedings were commenced in the County Court, neither was such an application made in the Notice of Appeal, neither have the Crown had notice of it.  Indeed in oral argument Mr Dilworth did not pursue his application for such declaration, and I need consider this matter no further. 58.              As a result of my view that Harrow are entitled to erect the barriers proposed pursuant to s.80 of the 1980 Act, it strictly unnecessary for me to consider any other of the Act’s provisions, but possible alternative means of proceeding were explored during the hearing of the appeal and for the sake of completeness I will refer to these now.  Harrow claims that if, contrary to its main submission, it were not entitled to rely on s.80 in this case, it would be entitled to rely on s.66(2) albeit that s.66, unlike s.80, would require it to pay compensation.   Mr Cusack disputes that Harrow would be entitled to act under s.66(2) though he observed that s.66, unlike s.80, specifies a legitimate objective for the use of the powers it grants, and he accepts that from his point of view s.66 would be more attractive than s.80, due to the former’s requirement of compensation. 59.              Mr Cusack contends that s.66 would not be available to Harrow because there is no evidence that Harrow thinks it necessary to erect pillars or the like to safeguard highway users.  In my view there is ample evidence, in the form of the letters of 13th January 2009 and 6th March 2009 to which I referred earlier in this judgment; the statement of Barry Philips summarised in paragraphs 19 and 20 of this judgment; and the fact that Harrow rely on s.66 (albeit in the alternative) as part of its pleaded case.  60.              Next it is submitted that s.66 (like s.80) does not use clear words entitling a highway authority to remove or interfere with a frontager’s rights of access.  It does not refer to such rights of access at all.  Just as I rejected this argument in relation to s.80, so I do in relation to s.66.  Sections 66(3) and (5) provide in essence that a highway authority may provide and maintain in a public footpath or bridle way such barriers etcetera as it thinks necessary to safeguard highway users; but not, inter alia, so as to obstruct any private access to any premises (which, I add, would include frontagers’ rights).  There is no similar qualification in relation to the exercise of the powers granted by s.66(2).  Moreover, as Harrow point out, in Ching Lord Radford, considering this statutory predecessor to s.66(2) said that “I think that it must be taken that the legislature did contemplate that private rights of access to and from the highway might be prejudiced by the works and impliedly authorised this to be done”.  61.              Mr Cusack also observes that Harrow have never made an offer of compensation.  This is true, but this follows simply from Harrow’s decision to act under s.80, which does not require payment of compensation, rather than under s.66, which does.  It does not follow that Harrow would not have been entitled to act under s.66 had they chosen to do so.  In any event, s.66(8) does not make the prior offer of compensation a pre-condition of the exercise of a highway authority’s powers under s.66.  62.              The second alternative explored was s.124 of the 1980 Act.  Here the approach of the parties was the other way round, Mr Cusack contending that Harrow could have relied on this section, Harrow contending that it could not.  In my view, Harrow are right, for three reasons.  63.              The first is that for the reasons explained earlier in this judgment I do not consider that there are “means of access” to the forecourt, as opposed to a right of access to it and a method by which it is physically possible to gain access.  I see no reason why “means of access” and s.124 should be construed differently from “means of access” in s.80.  Secondly, Harrow would never be able to establish that no access to the premises from the highway was reasonably required, so as to satisfy s.124(3)(a). 64.              Thirdly, even if there were a “means of access” it seems to me that s.124, the wording of which is very different from that of s.80, is directed to the total closure of a means of access, and Harrow certainly do not intend to prevent all access from the highway to the front of No. 66.  This interpretation of s.124 receives support from different sources.  The words “stop up” are not defined in the 1980 Act, but in the current (2010) edition of the Oxford Dictionary of English one meaning of “stop” is to “block” or “close up”, which in my view accords with the meaning of “stop” in this context in common parlance.  Such an interpretation would also be consistent with s.116 of the 1980 Act, which provides, inter alia, for the stopping up of highways which are unnecessary; with s.118 which provides, inter alia, for the stopping up of a footpath which is not needed for public use; and with s.124(3) to which I have already referred.  The same interpretation also receives support, albeit somewhat dated, from R. v. Milverton Inhabitants (1836) 5 Ad. & El. 841 (111 E.R. 1385) which concerned s.2 of the Highways Act 1815, a precursor of s.116 of the 1980 Act referred to above.  The Court held that a narrowing or partial closing of the highway did not amount to stopping it.  Lord Denman C.J. at page 852, said: “But where, as in this case, and entire highway could not be stopped…the statute is not carried into effect”. 65.              For these reasons, Mr Cusack’s appeal against the decision of His Honour Judge McDowall is dismissed. 66.              I have received written submissions from the parties in relation to the questions of costs and a stay.  67.              In my judgment Harrow should (subject to assessment) be awarded its costs of the appeal in full for the following reasons.  a)      Mr Cusack’s appeal was dismissed.  He did not succeed on any significant issue. b)      The misleading aspects of EnterpriseMouchel’s letter of 6th March, 2009 (see paragraphs 6 to 9 above) do not in my view warrant depriving Harrow of all or any proportion of their costs.  Referring first back to paragraph 7 above, the letter should not have said that barriers were to be installed from 36 to 76 Station Road, but it did go on to state that the barriers were “…to prevent vehicles from driving over raised kerbs and footways to access private property…”.  In my view it sought, albeit unsuccessfully, to convey that barriers would be installed only where it was necessary to prevent such driving (which it was not in relation to many of the properties from 36 to 76).  Referring next back to paragraph 9 above, the suggestion that driving over the kerb constituted a criminal offence (also made in Harrow’s letter dated 23rd April 2008, not specifically referred to above) was incorrect, but I can understand how the error arose.  Section 184(1) provides that “where the occupier of any premises adjoining or having access to a highway maintainable at the public expense habitually takes or permits to be taken a mechanically propelled vehicle across a kerbed footway…to or from those premises, the highway authority…may…serve a notice on the owner and the occupier of the premises…(b) imposing such reasonable conditions on the use of the footway…as a crossing as may be so specified.”  Section 184(17) provides that “if a person knowingly uses a footway…as a crossing in contravention of any condition imposed under sub section (1)(b) above, or knowingly permits it to be so used, he is guilty of an offence…”.  Harrow never served a formal notice under section 184(1)(b) but in the letter of 28th April 2008 and subsequent letters they did in effect tell Mr Cusack to stop driving over the kerb to and from his property.  In any event, neither of the errors referred to in this sub-paragraph affected the course of the litigation itself.  c)      The possibility that my decision may have ramifications beyond Mr Cusack’s particular case is in my view immaterial.  This litigation involved only two parties.  d)      If my decision has had what seen as a punitive effect on Mr Cusack, this results simply from an application to the circumstances of this case of the law as I understand it to be.  e)      For the reasons explained in paragraph 53 above I do not regard Harrow’s proposed use of its powers under section 80 as oppressive or unreasonable.  f)        The Respondent’s Notice, although served late, did not raise any issues that had not already been raised before His Honour Judge McDowall, and there is no reason to believe that its late service prejudiced Mr Cusack. g)      With regard to paragraph 25 above, and section 3 of the Human Rights Act, 1998 it is said that Harrow “wrongly cleaved to the fallacy that the judge below had approached that questions correctly”.  I have to say that I did not understand Harrow to be cleaving to such a fallacy.  In any event, it was not disputed that I could and should if possible read down section 80 in such a way as to render it compatible with Convention rights.  68.              For the same reasons, I do not propose to vary the order for costs made by His Honour Judge McDowall. 69.              I turn to consider the mode of assessment of Harrow’s costs.  Unusually, I am going to direct a detailed assessment.  The appeal was listed for two days, though it was possible to conclude the oral argument in one day.  Mr Cusack makes a root and branch attack on Harrow’s bill of costs, alleging the claiming of grossly disproportionate sums, and the duplication of claims made in the County Court.  In my view these claims should be examined at a detailed assessment unless of course the parties are able to come to an agreement as I hope they will though (given the present gulf between them) I fear they will not. 70.              Finally, I refuse the application for a stay pending an application for permission to appeal, having regard to the submissions made in paragraph 6 of Mr Weekes’s written submission of 4th February 2011 and with an eye to the views I expressed in paragraph 53 about public safety considerations.