Highways — Frontagers’ rights – Vehicular access – Respondent authority proposing to erect barriers on pavements preventing vehicular access to appellant’s forecourt – Whether statute confining respondents’ powers to removal of all access to highway – Whether statute entitling respondents to interfere with access without compensation — Appeal dismissed
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 respondents decided to erect 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 appellant appealed.
Held: The appeal was dismissed.
(1) Section 80 of the 1980 Act entitled the respondents to carry out the proposed works without paying the appellant compensation.
Parliament could empower a highway authority to limit or remove a right of access. No distinction was to be drawn between the right of a local authority exercising statutory powers to interfere with or obstruct a means of access formed under a statutory power and a common law right of access such as a frontager’s right: Marshall v Blackpool Corporation [1935] AC 16 and Ching Garage Ltd v Chingford Corporation [1961] 1 All ER 671 considered.
In the instant case, none of the exceptions in section 80(3) of the 1980 Act applied. No agricultural purposes arose pursuant to section 80(3)(a) and there was no public right of way from the highway to the appellant’s forecourt: see section 80(3)(b). Further, vehicular access to the forecourt had not been constructed; vehicles had simply driven over the kerb and onto and across the pavement. The demolition of the wall and the provision of the hardstanding did not constitute the construction, formation or laying out of a means of access for the purposes of section 80(3)(c). In any event, there was no evidence of when the wall was removed and the hardstanding was laid down or whether either or both had had planning permission. For similar reasons, section 80(3)(d) did not arise.
Furthermore, the words “preventing access” in section 80 had to be interpreted as referring both to all means of access and to a particular means of access, so that the section was not confined to situations in which a highway authority removed all access to a highway but applied, as here, to a case in which the authority sought to remove vehicular but not pedestrian access.
A local authority might be permitted by statute 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. However, section 80 was clear. If parliament had intended to exclude private rights of access in general or frontagers’ rights of access in particular from the application of the section, it could have done so by a simple addition to section 80(1) or (3). Section 80(3) and, in particular, section 80(3)(b) indicated by necessary implication that section 80(1) applied to private rights of access. Section 80(3)(b) excluded all public rights of way; only private rights of way or access remained. Of those, some were excluded by section 80(3)(a), (c) and (d). They did not include frontagers’ rights, unless they fell within the ambit of those three paragraphs, and there was no evidence that the appellant’s rights of access did so.
Moreover, had parliament intended compensation to be paid to those affected by the exercise of a highway authority’s section 80 powers, it would have said so, as it had in relation to the powers conferred by sections 66 and 124. Even though the appellant would have been entitled to compensation had the respondents relied on section 66 (or section 124), they owed a fiduciary duty to their council taxpayers. If they could avoid paying compensation, they should not use public funds to recompense an objector who was not entitled to it.
(2) Furthermore, the Human Rights Act 1998 and the European Convention on Human Rights did not require a different construction of section 80. Under section 3 of the 1998 Act, primary legislation had to be read and given effect to in a way which was compatible with rights under the Convention and Article 1 of the First Protocol provided that every person was entitled to the peaceful enjoyment of his possessions.
Parliament had clearly intended to include private rights of access within the application of section 80, subject to the particular and express exceptions identified in section 80(3)(a), (c) and (d). Parliament plainly thought section 80 to be necessary in the general interest, which was not an unreasonable approach.
The provisions of article 1 of the First Protocol would not have helped the appellant in the instant case. As a result of the respondents’ proposed action, he would not lose his property and could continue to use it when and for whatever purpose he wanted. Neither would he lose his frontager’s right of access to the property. He or any visitor or licensee would still be able to enter and leave the property at any time of the day. He would only lose one aspect of the right, namely the right to vehicular access, or at least a vehicle with four wheels. In those circumstances, the respondents’ proposed action should be considered as controlling the use of property rather than the deprivation of possessions or expropriation.
Noel Dilworth (instructed by Patrick J Cusack & Co) appeared for the appellant; Thomas Weekes (instructed by the legal department of Harrow London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
