The appellant was the freeholder of a property from which he conducted a solicitor’s practice. The front wall of the property had been removed and the front garden had been converted to hardstanding creating a forecourt on which it was possible to park two cars; a use that had continued since 1969.
Following the construction of an uncontrolled pedestrian crossing close to the appellant’s property, the respondent council erected barriers on the pavement immediately adjacent to the forecourt to prevent vehicles from moving in either direction between it and the pavement and carriageway on the basis that such movement endangered pedestrians and other road users.
The parties entered into correspondence on 23 April 2008. On 17 March 2009, the appellant commenced proceedings in the county court, seeking an injunction to restrain the respondents from erecting the barriers; or, alternatively, damages for breach of easement, nuisance or trespass. It was common ground that the appellant had a right of way from his property over the pavement and onto the road, on foot and with vehicles, pursuant to a common law “frontager’s right”. However, the county court found that, by virtue of section 80 of the Highways Act 1980, the respondents were entitled to place barriers or posts in the position they intended to prevent access. Although the appellant had a right of access to the highway that any owner of a property fronting the highway could enjoy, the exercise of statutory powers could interfere with that right. The High Court upheld that decision on the basis that the respondents had power under section 80 to erect the barriers without paying the appellant compensation: [2011] EWHC 460 (QB); [2011] PLSCS 90.
On a renewed application for permission to appeal, a single lord justice adjourned the application to the full court with the appeal to follow if permission were granted.
Held: Permission to appeal was granted. The appeal was allowed in part.
In the instant case, the respondents had relied primarily on the powers conferred by section 80 of the 1980 Act or, as a fall-back position, those conferred by section 66(2) which provided: “A highway authority may provide and maintain in a highway maintainable at the public expense … such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway”. That was a more specific reason for invoking a statutory power than the more nebulous statement of purpose in section 80 that “… a highway authority may erect and maintain fences or posts for the purpose of preventing access … ”
Where there was a general provision and a more specific provision, and a course of action could potentially fall within both, the court would usually interpret the general provision as not covering matters covered by the specific provision. The application of that principle was the way to solve the problem in the instant case. The action that the respondents proposed to take fell within section 66(2) and the power under section 80 did not apply to the facts.
The respondents had power to carry out the proposed works under section 66(2) but, if they chose to exercise that power, the appellant would be entitled to compensation under section 66(8). However, the court was not prepared to say that section 80 could never be used to curtail a frontager’s right of access to the highway; nor was the appellant entitled to an injunction restraining the respondents from erecting barriers across the forecourt.
With regard to the appellant’s rights under article 1 of the First Protocol to the European Convention on Human Rights, the blocking of vehicular access to the highway did not amount to a deprivation of possessions but only a control of use of property so that the appellant’s right of access to the highway could be exercised only in a particular way. In such cases the European Court would respect the judgment of the national authorities unless it was manifestly arbitrary or unreasonable, which was not the case here.
Patrick Green and Noel Dilworth (instructed by Patrick J Cusack & Co) appeared for the appellant; Tom Weekes (instructed by the legal department of Harrow London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister