Cusack v Harrow London Borough Council
Lord Neuberger, president, Lord Mance, Lord Sumption, Lord Carnwath and Lord Hughes
Highways Act 1980 – Frontagers’ rights – Interference – Respondent owning property abutting highway – Use of forecourt of respondent’s property for parking becoming immune from planning enforcement – Appellant highway authority deciding to erect barriers to block vehicular access to forecourt on grounds of highway safety – Whether appellants entitled to take that action under section 80 of 1980 Act without paying compensation to respondent – Whether instead required to proceed under section 66(2) with payment of compensation – Appeal allowed
The respondent conducted a solicitor’s practice from a property of which he was the freeholder. The front garden of the property had been converted to hard standing and the front wall removed, creating a forecourt open to the adjoining highway. The appellant, his staff and his clients had used the forecourt for parking since 1969, such that any breach of planning control involved had become immune from enforcement.
The appellant highway authority decided to erect barriers on the pavement to block vehicle movement between the forecourt and the highway. The respondent applied to the court for an injunction restraining the appellants from taking that course. The appellants asserted that vehicle movements between the forecourt and highway endangered pedestrians and other road users and that the erection of the barriers fell within their statutory powers under the Highways Act 1980.
The claim for injunctive relief was dismissed in the courts below. The High Court held that the appellants were entitled to erect the barriers, without paying compensation to the respondent, pursuant to the general power under section 80 of the 1980 Act to erect and maintain fences or posts for the purpose of preventing access to a highway maintainable at public expense: see [2011] EWHC 460 (QB); [2011] PLSCS 90.
The Court of Appeal disagreed, holding that the general power under section 80 did not apply since the matter was covered by the more specific provisions of section 66(2) permitting the provision of such raised paving, pillars, walls, rails or fences as the appellants thought necessary for the purpose of safeguarding persons using the highway; consequently the appellants were entitled to erect the barriers pursuant to section 66(2) but the respondent was entitled to compensation under section 66(8): see [2011] EWCA Civ 1514 [2012] 1 EGLR 43. The appellants appealed to the Supreme Court.
Held: The appeal was allowed.
(1) Although an owner of property fronting onto the highway had the right at common law to access without restriction from any part of the property, in practice that right had been much restricted by statute. While many of the powers conferred by the legislation were subject to the payment of compensation, there was no general rule to that effect: Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470 considered.
The use of section 66(2), rather than section 80, was not required by the principle of statutory construction that the specific overrode the general. There was no reason to regard either the section 80 or the section 66 power as more specific or less general than the other. While section 66(2) was directed to a specific purpose, namely safeguarding persons using the highway, its powers were defined in relatively wide terms, not necessarily related to private accesses. The powers in section 80 were expressed in narrower terms, relating specifically to the prevention of access to an existing or future highway. Although there was no mention of safety as a purpose, it was implicit that the section 80 power had to be used for purposes related to those of the Act, which included but were not confined to highway safety.
Since the 1980 Act was the result of a complex evolutionary history extending over more than 130 years, it was not surprising that it contained a miscellany of sometimes overlapping, and not always consistent, powers. Section 80 provided specific protection for accesses formed since 1947 so long as they were authorised by planning permission. However, that protection did not, in terms, extend to the use of accesses that had become immune from enforcement under the planning Acts. Consideration of the legislative history did not detract from the natural meaning of section 80 as it appeared in the 1980 Act. The appellants were entitled to rely on the clear words of that section for the power they sought. There was no express or implied restriction on its use. The fact that section 66(2) might confer an alternative power to achieve the same object, but subject to compensation, was beside the point. Where the appellants had two alternative statutory methods of achieving the same objective, they were entitled to adopt the one that imposed the least burden on the public purse: Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 applied. If that power were abused in particular cases, judicial review was available.
(2) The position was not affected by the Human Rights Act 1998. The appellants’ use of the section 80 power did not contravene the respondent’s right to peaceful enjoyment of his possessions under Article 1 of the First Protocol to the European Convention on Human Rights. In terms of Article 1, removing the common law right of access to the highway was a control of the use of property rather than a deprivation of a possession. Although the absence of compensation might be relevant to proportionality, Article 1 did not impose any general requirement for compensation. Since there was no challenge to the Convention compatibility of section 80 as such, the mere fact that another statutory route, involving compensation, was available did not lead to the conclusion that reliance on section 80 was disproportionate. Instead, the issue of proportionality required a broad judgment as to where the fair balance lay between the competing general and individual interests. That question fell to be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation that was allowed to the national authorities in the general field of land development and town planning. It was significant that the legislature had not provided that all immune uses and operations should be treated generally as though subject to planning permission, apart from the specific cases set out in the legislation. Given the availability of the section 80 power as a legitimate means of controlling use of a private access in the public interest, its use in the instant case was neither an abuse of the appellants’ powers nor outside the boundaries of the discretion allowed by the Convention: Sporrong v Sweden (1982) 5 EHRR 35, Depalle v France (2010) 54 EHRR 535 and Thomas v Bridgend Borough Council [2011] EWCA Civ 862; [2012] QB 512; [2011] PLSCS 196 applied.
Stephen Sauvain QC and Tom Weekes (instructed by Sharpe Pritchard) represented the appellants; Patrick Green and Noel Dilworth (instructed by Patrick J Cusack & Co) appeared for the respondent.
Sally Dobson, barrister
Highways Act 1980 – Frontagers’ rights – Interference – Respondent owning property abutting highway – Use of forecourt of respondent’s property for parking becoming immune from planning enforcement – Appellant highway authority deciding to erect barriers to block vehicular access to forecourt on grounds of highway safety – Whether appellants entitled to take that action under section 80 of 1980 Act without paying compensation to respondent – Whether instead required to proceed under section 66(2) with payment of compensation – Appeal allowedThe respondent conducted a solicitor’s practice from a property of which he was the freeholder. The front garden of the property had been converted to hard standing and the front wall removed, creating a forecourt open to the adjoining highway. The appellant, his staff and his clients had used the forecourt for parking since 1969, such that any breach of planning control involved had become immune from enforcement. The appellant highway authority decided to erect barriers on the pavement to block vehicle movement between the forecourt and the highway. The respondent applied to the court for an injunction restraining the appellants from taking that course. The appellants asserted that vehicle movements between the forecourt and highway endangered pedestrians and other road users and that the erection of the barriers fell within their statutory powers under the Highways Act 1980.The claim for injunctive relief was dismissed in the courts below. The High Court held that the appellants were entitled to erect the barriers, without paying compensation to the respondent, pursuant to the general power under section 80 of the 1980 Act to erect and maintain fences or posts for the purpose of preventing access to a highway maintainable at public expense: see [2011] EWHC 460 (QB); [2011] PLSCS 90.The Court of Appeal disagreed, holding that the general power under section 80 did not apply since the matter was covered by the more specific provisions of section 66(2) permitting the provision of such raised paving, pillars, walls, rails or fences as the appellants thought necessary for the purpose of safeguarding persons using the highway; consequently the appellants were entitled to erect the barriers pursuant to section 66(2) but the respondent was entitled to compensation under section 66(8): see [2011] EWCA Civ 1514 [2012] 1 EGLR 43. The appellants appealed to the Supreme Court.Held: The appeal was allowed. (1) Although an owner of property fronting onto the highway had the right at common law to access without restriction from any part of the property, in practice that right had been much restricted by statute. While many of the powers conferred by the legislation were subject to the payment of compensation, there was no general rule to that effect: Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470 considered.The use of section 66(2), rather than section 80, was not required by the principle of statutory construction that the specific overrode the general. There was no reason to regard either the section 80 or the section 66 power as more specific or less general than the other. While section 66(2) was directed to a specific purpose, namely safeguarding persons using the highway, its powers were defined in relatively wide terms, not necessarily related to private accesses. The powers in section 80 were expressed in narrower terms, relating specifically to the prevention of access to an existing or future highway. Although there was no mention of safety as a purpose, it was implicit that the section 80 power had to be used for purposes related to those of the Act, which included but were not confined to highway safety.Since the 1980 Act was the result of a complex evolutionary history extending over more than 130 years, it was not surprising that it contained a miscellany of sometimes overlapping, and not always consistent, powers. Section 80 provided specific protection for accesses formed since 1947 so long as they were authorised by planning permission. However, that protection did not, in terms, extend to the use of accesses that had become immune from enforcement under the planning Acts. Consideration of the legislative history did not detract from the natural meaning of section 80 as it appeared in the 1980 Act. The appellants were entitled to rely on the clear words of that section for the power they sought. There was no express or implied restriction on its use. The fact that section 66(2) might confer an alternative power to achieve the same object, but subject to compensation, was beside the point. Where the appellants had two alternative statutory methods of achieving the same objective, they were entitled to adopt the one that imposed the least burden on the public purse: Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 applied. If that power were abused in particular cases, judicial review was available.(2) The position was not affected by the Human Rights Act 1998. The appellants’ use of the section 80 power did not contravene the respondent’s right to peaceful enjoyment of his possessions under Article 1 of the First Protocol to the European Convention on Human Rights. In terms of Article 1, removing the common law right of access to the highway was a control of the use of property rather than a deprivation of a possession. Although the absence of compensation might be relevant to proportionality, Article 1 did not impose any general requirement for compensation. Since there was no challenge to the Convention compatibility of section 80 as such, the mere fact that another statutory route, involving compensation, was available did not lead to the conclusion that reliance on section 80 was disproportionate. Instead, the issue of proportionality required a broad judgment as to where the fair balance lay between the competing general and individual interests. That question fell to be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation that was allowed to the national authorities in the general field of land development and town planning. It was significant that the legislature had not provided that all immune uses and operations should be treated generally as though subject to planning permission, apart from the specific cases set out in the legislation. Given the availability of the section 80 power as a legitimate means of controlling use of a private access in the public interest, its use in the instant case was neither an abuse of the appellants’ powers nor outside the boundaries of the discretion allowed by the Convention: Sporrong v Sweden (1982) 5 EHRR 35, Depalle v France (2010) 54 EHRR 535 and Thomas v Bridgend Borough Council [2011] EWCA Civ 862; [2012] QB 512; [2011] PLSCS 196 applied.Stephen Sauvain QC and Tom Weekes (instructed by Sharpe Pritchard) represented the appellants; Patrick Green and Noel Dilworth (instructed by Patrick J Cusack & Co) appeared for the respondent.
Sally Dobson, barrister
