Cusack v London Borough of Harrow

Mr Cusack is a solicitor who has practised at 66 Station Road Harrow since 1969. 66 Station Road was originally built as a dwelling. Its former front garden has been covered with hardstanding to form a forecourt; and is open to the highway. At that point Station Road (which is part of the A409) is a single carriage road in each direction flanked by a pedestrian footway. Since 1969 Mr Cusack, his staff and clients have used the forecourt to park cars. This requires cars to be manoeuvred over the footway and, when exiting, to exit in reverse over the footway. No specific planning permission exists for this means of access to the highway; and Mr Cusack accepts that he cannot establish that it was formed before 1948. However, he has used the means of access for so long that any breach of planning control is now immune from enforcement. Following concerns raised by a local councillor, the London Borough of Harrow (“the Council”), as highway authority, wrote to Mr Cusack in January 2009 asserting that the movement of vehicles over the footway “causes danger to both pedestrians and other motorists”. At first the Council said that Mr Cusack was committing a criminal offence by driving over the footway; but that assertion has now been abandoned. In March 2009 the Council’s contractors wrote to Mr Cusack warning him that the Council were planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. The barriers would prevent further footpath damage and increase pedestrian safety. In response Mr Cusack brought proceedings in the county court claiming an injunction restraining the Council from erecting the proposed barriers outside 66 Station Road. At that stage the Council had not identified the statutory power which gave them the right to erect the barriers. In their Defence and Counterclaim the Council pleaded:

“The [Council] has formed the view that [Mr Cusack] and his wife, by driving over the Footway (and by authorising others to do so) are endangering the safety of: (i) drivers and passengers of vehicles, and cyclists, using the carriageway (ii) pedestrians using the Footway; and (iii) pedestrians crossing the carriageway.”

The Defence went on to allege that the Council had the power to erect the barriers either under section 80 of the Highways Act 1980 or under section 66 of the same Act. The Council’s case was supported by the evidence of Mr Barry Phillips who said, among other things, that the use of the dropped kerb for vehicle movements “gives serious safety concerns because of possible conflicts between vehicles and pedestrians.” What particularly concerned the Council was the reversing of vehicles into the highway. The Council also commissioned a report from Mr Alan Rookes, a highway engineer. His conclusion was that vehicular movements to and from the forecourt of 66 Station Road “endanger the safety of pedestrians using the eastern footway of Station Road, pedestrians using the uncontrolled pedestrian crossing located outside No 66 and vehicles travelling along Station Road.”

HH Judge McDowell and Maddison J found against Mr Cusack and held that the Council had the power under section 80 to erect the barriers. On a renewed application for permission to appeal Mummery LJ adjourned the application to the full court, with the appeal to follow if permission were granted.

The statutory powers on which the Council relies are those contained in sections 80 and 66 of the Highways Act 1980. Before considering the extent of those powers it is necessary to describe Mr Cusack’s rights at common law. Because 66 Station Road abuts the highway Mr Cusack has the common law rights of a frontager. Lord Atkin described these rights in Marshall v Blackpool Corporation [1935] AC 16, 22:

“The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. Apart from any statutory provision there is no obligation upon an adjoining owner to fence his property from the highway: and though in urban districts fencing is usual, your Lordships will be familiar with many instances to the contrary, as for instance in country towns, where it is common to find large open forecourts to country inns and the like where market carts and farm vehicles are left during business hours. Moreover the ordinary traffic on any highway is always liable to be increased by the exercise by an adjoining owner of this right of access. A building estate may be developed, or a theatre, concert hall, cinema, or hotel erected on premises which will necessarily involve incalculable increase of traffic. Subject to special statutory provisions protecting footpaths, the right of access is not affected by the fact that part of the highway is only dedicated as a footway, or is otherwise lawfully appropriated to foot passengers. The passage of the public along a footway is always liable to be temporarily interrupted by adjoining owners' right of access, whether to the footway or the roadway: and the dangers, if dangers there be, of a pedestrian having his path crossed by vehicles exercising right of access may be increased, and lawfully increased, by the adjoining owner or owners increasing their means of access.”

However, as Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 477 having referred to Lord Atkin’s statement:

“I think, however, that it needs to be remembered in connection with this statement that the full extent of the common law right to enter the highway at every point of the frontage for any highway purpose must have been modified in very many cases by the exercise of statutory powers with regard to the highway and that, apart from local Acts, section 155 (5) of the Highways Act, 1959, is now the controlling enactment. …

It is plain, therefore, that, certainly in any built-up area, there are numerous rights of access to the streets from adjoining premises, and that they are rights derived from common law or statute, general or local, or, perhaps, from a combination of the two sources. In my opinion, it is well-settled law that a highway authority exercising statutory powers to improve or maintain a street or highway, such as to raise or lower its level, to form a footpath, to pave or kerb or to erect omnibus shelters, is empowered to carry out its works even though by so doing it interferes with or obstructs frontagers’ rights of access to the highway. ”

Section 155 of the Highways Act 1959, to which Lord Radcliffe referred, is, with some changes, the forerunner of section 184 of the 1980 Act.

In the present case the Council relies primarily on the powers conferred by section 80 or, as a fall-back position on those conferred by section 66 (2). Section 66 provides, so far as material:

“(1)

It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made- up carriageway, a proper and sufficient footway as part of the highway in any case where they consider the provision of a footway as necessary or desirable for the safety or accommodation of pedestrians; and they may light any footway provided by them under this subsection.

(2)

A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, 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 maintainable at the public expense by them which consists of a footpath or bridleway, such barriers, posts, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.

(5)

The power conferred by subsection (3) above, and the power to alter or remove any works provided under that subsection, shall not be exercised so as to obstruct any private access to any premises or interfere with the carrying out of agricultural operations.

(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 subsection (2) or (3) above.”

Section 80 provides, so far as material:

“(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 the public expense by them,

(b)

land on which in accordance with plans made or approved by the Minister they are for the time being constructing or intending to construct a highway shown in the plans which is to be a highway so maintainable, or

(c)

land on which in pursuance of a scheme under section 16 above, or of an order under section 14 or 18 above, they are for the time being constructing or intending to construct a highway.

(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 was constructed, formed or laid out before 1st July 1948, unless it was constructed, formed or laid out in contravention of restrictions in force under section 1 or 2 of the Restriction of Ribbon Development Act 1935…”

We were referred also to the power to stop up private means of access under section 124. This provides, so far as material:

“(1)

Subject to subsection (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 to interfere unreasonably with, traffic on the highway, they may be authorised by an order made in accordance with this section to stop up the means of access.

(3)

No order under this section relating to an access to any premises shall be made by the Minister or, in the case of an order made by a local highway authority, confirmed either by the Minister or by that authority unless the Minister or, as the case may be, the confirming authority is or are satisfied—

(a)

that no access to the premises from the highway in question is reasonably required, or

(b)

that another reasonably convenient means of access to the premises is available or will be provided by the Minister or, as the case may be, the local highway authority.”

There is a statutory procedure that must be followed before a stopping up order can be made; and under section 126 (2) a person whose property is depreciated in value by the stopping up is entitled to compensation.

The final power to which we were referred is that in section 184 (1) which provides:

“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 or a verge in the highway to or from those premises, the highway authority for the highway may, subject to subsection (2) below, serve a notice on the owner and the occupier of the premises—

(a)

stating that they propose to execute such works for the construction of a vehicle crossing over the footway or verge as may be specified in the notice; or

(b)

imposing such reasonable conditions on the use of the footway or verge as a crossing as may be so specified.”

Mr Green submitted that the Council should have imposed conditions on reversing out of the forecourt in exercise of the power under section 184. Failing that, he said that the Council should have applied to stop up the means of access under sections 124 and 126, complying both with its procedural and substantive safeguards. Only if it could do neither of those things should it rely on the power contained in section 66.

Since the Council has formed the view that all vehicle movements across the footway present a danger to other users of the highway (even though reversing out of the forecourt is the most dangerous) I am by no means convinced that the imposition of conditions under section 184 would result in a satisfactory solution. In addition it does not appear that the possibility of imposing conditions under that section was explored in any detail at trial, and was not referred to in either judgment below. I do not consider that the power to stop up the means of access under section 124 is applicable to what the Council wants to do. The result of stopping up a means of access is to extinguish permanently the right to use it. There is no need for any physical obstruction of the means of access to achieve this result. Stopping up is a legal rather than a physical construct. Moreover, since this power to stop up can only be used where either no access to the highway is reasonably required or where there is another reasonably convenient means of access I do not consider that the power can be use to extinguish vehicular access only, while leaving the right to have pedestrian access over precisely the same land intact. In short in my judgment the power to stop up under section 126 is an “all or nothing” power.

Section 66 (1) refers to a “footway”, whereas section 66 (3) refers to a “footpath”. Both these expressions are defined by section 329 (1). A footway is a way comprised in a highway which also comprises a carriageway being a way over which the public have a right of way on foot only. Thus the pavement at the side of the Station Road is a footway. A footpath, on the other hand, is a highway over which the public have a right of way on foot, but which is not part of a highway which also comprises a carriageway. In other words it is a highway limited to pedestrian traffic.

Section 66 (2) gives the highway authority the power to erect pillars, walls, rails or fences where they think that they are necessary for the safety of highway users. That safety is the main concern is reinforced by the fact that section 66 appears in a group of sections under the heading “Safety provisions”. The power under section 66 (3) (which applies to footpaths rather than to footways) cannot be used to obstruct any private access to any premises: section 66 (5). This must be because if pedestrian access to premises is obstructed on a footpath the result could be to deprive the frontager of all access to the highway. In other words the result could be tantamount to stopping up the highway so far as that frontager was concerned. There is no such limitation on the power conferred by section 66 (2). It is thus common ground that the Council could use its power under section 66 (2) to erect barriers immediately in front of Mr Cusack’s forecourt, thereby blocking his vehicular access. However, the sting in the tail as far as the Council is concerned is that Mr Cusack would be entitled to compensation under section 66 (8). For that reason the Council wishes to rely on the powers conferred by section 80.

The statutory power conferred by section 80 is a power to erect and maintain fences and posts. Both fences and posts will be connected to the ground. So the statutory power is intended to enable the highway authority to prevent access at ground level. How would one access a highway at ground level? I can think of only three ways. One is from another highway. The second is from private land abutting the highway by virtue of some private right of way. The third is from private land in exercise of the rights of a frontager. If one accesses a highway from another highway, it can only be in the exercise of a public right of way. But section 80 (3) (b) prevents the power under section 80 from being used so as obstruct a public right of way. So that cannot have been the statutory purpose of the power. Accordingly the only scope for exercise of the power is to restrict access to the highway from private land abutting the highway. Any land abutting the highway must be owned by a frontager. Since section 80 (3) (b) only refers to obstructing public rights of way, it is a necessary inference that it does not prohibit interfering with private rights of way. Section 80 (3) (c) and (d) preclude interfering with certain private means of access. The common feature of both types of means of access which section 80 cannot override is that they were lawfully formed under town and country planning legislation; either because they ante-dated the general restrictions contained in the Town and County Planning Act 1947, or because they were formed in accordance with planning permission granted under that Act or its successors. Mr Weekes, appearing for the Council, laid great stress on this point. He submitted that it was the key to understanding the scope of and Parliamentary intention behind the power. In practical terms the power was designed to enable highway authorities to block private means of access created in breach of planning control. That was why no compensation was payable; because no one should be compensated for the loss of an access which should never have been created in the first place. Mr Green, appearing with Mr Dilworth for Mr Cusack, submitted that this was not the true scope of the section. However, I found it difficult to see when, on his submission, section 80 would be applicable. He instanced a case of a highway running alongside a field in which animals grazed and said that the highway authority would be entitled to erect a fence to prevent animals straying onto the highway. Another example he gave was that of a children’s playground separated from the highway by a field in which they were accustomed to play. The highway authority would be able to fence the field to prevent the children from straying onto the highway. The difficulty with these examples is that the erection of a fence along the highway necessarily prevents the frontager from exercising his common law right of access to the highway wherever the fence exists. It is therefore implicit in the two examples that the power under section 80 does enable the highway authority to interfere with frontagers’ rights. There was some discussion of the purpose of section 80 being the prevention of access “to” the highway. Thus if the purpose of erecting the barriers was to prevent access to the forecourt “from” the highway it would fall outside the cope of the power. I am not persuaded by this argument. First, the evidence is that the Council’s real concern is the reversing of vehicles when exiting the forecourt, so the purpose of the barriers is indeed to prevent access to the highway. If they also have the effect of preventing access to the forecourt from the highway that is incidental. Second, I do not consider that the various statutory powers in the Highways Act differentiate consistently between access to and access from a highway. After all, traffic on a highway is in general two-way traffic. Section 124, for example, allows the stopping up of a means of access “from” the highway where the means of access “from” the highway is likely to cause danger. But it would, in my judgment, be extraordinary if the power were excluded in a case where the highway authority formed the view that the danger was caused by vehicles exiting onto the highway rather than vehicles turning in off the highway. Accordingly, I agree with Mr Weekes (and with Judge McDowell and Maddison J) that the works that the highway authority wishes to carry out fall within the literal words of section 80 (1) and do not fall within any of the exclusions in section 80 (3). In the end I think that Mr Green accepted this; but said that although section 80 might be used even though there was some interference with a frontager’s common law rights it was inapplicable where the effect of the use of the power was to deprive the frontager of all vehicular access, particularly where the stated reason for wishing to erect the barriers was a concern for pedestrian safety. That was the situation for which section 66 was tailor-made.

Mr Weekes accepted that the Council could have proceeded under section 66; but he submitted that there was a choice of powers and the Council’s responsibilities as custodian of public funds meant that it was entitled to choose to exercise the power that did not involve payment of compensation. In this connection he relied on the statement of Lord Radcliffe in Ching (p. 475):

“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…”

Mr Green submitted, however, that when the whole structure of the Act is considered section 80 could be seen to be inapplicable to the facts of this case. He pointed to a range of different provisions in the Act (including of course section 66) by virtue of which a highway authority could interfere with private rights; and under which (with the sole exception of section 80) compensation would be payable for loss or damage suffered as a result of the interference. Section 66 (2) applies where the highway authority consider that the erection of posts etc. is “necessary for the purpose of safeguarding persons using the highway”. This is a much more specific reason for invoking a statutory power than the more nebulous statement of purpose in section 80. Indeed this is precisely the reason, according to the Council, why it wishes to erect barriers across the forecourt of 66 Station Road. As he also pointed out if Mr Weekes is right then the Council could physically prevent all access to the highway without payment of compensation. Although that would not, in legal terms, amount to stopping up the means of access, in practical terms it could amount to much the same thing.

Where there is a general provision and a more specific provision, and a course of action could potentially fall within both the court will usually interpret the general provision as not covering matters covered by the specific provision. This is a well established way of interpreting statutes. In Pretty v Solly (1859) 26 Beav 606 Sir John Romilly MR said:

“The general rules which are applicable to particular and general enactments in statutes are very clear, the only difficulty is in their application. The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.”

Likewise in R v Ramasamy [1965] AC 1 Viscount Radcliffe said of two ill-matched statutory provisions:

“The question is, of course, a difficult one: but their Lordships are of opinion that the correct way to solve it is by applying the maxim of interpretation generalia specialibus non derogant.”

In my judgment the application of this principle is also the way to solve the problem in the present case. The action that the Council proposes to take and the reason for taking it fall squarely within section 66 (2). Mr Weekes accepted that, if the Council did not have an unfettered choice, the appropriate power was that power whose object was most closely aligned with the present case. In my judgment the power under section 66 (2) is that power. I am therefore prepared to say that the power under section 80 does not apply to the facts of this case, and to grant Mr Cusack a declaration to that effect. I am also prepared to say that the Council does have the power to carry out the proposed work in reliance on the power contained in section 66 (2) and to grant the Council a declaration to that effect. If the Council chooses to exercise that power it will, of course, have to pay Mr Cusack the compensation to which he would become entitled under section 66 (8). However, I am not prepared to say that section 80 can never be used to curtail a frontager’s right of access to the highway. Nor is Mr Cusack entitled to an injunction restraining the Council from erecting barriers across the forecourt of 66 Station Road.

I reach this conclusion without the need to rely on the interpretative obligation contained in section 3 of the Human Rights Act 1998. So I can take this part of the case shortly.

Article 1 of the First Protocol (A1P1) states:

“Every natural or legal 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 or to secure the payment of taxes or other contributions or penalties.”

As the European Court of Human Rights has frequently explained:

“That Article comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.” (Sporrong v Sweden (1983) 5 EHRR 35 §61)

The first question that arises under this head is: does the blocking of vehicular access to the highway amount to a deprivation of possessions or only a control of use of property? Mr Green argued that the right of a frontager to access the highway is a right that must be treated separately from his ownership of the property in question and is a separate piece of property of which he can be deprived. I do not agree. The right of a frontager to access the highway is one of a bundle of rights that ownership of a particular property carries with it. Unless the exercise of the power under section 80 can be said to amount to a deprivation of the property itself (which it plainly cannot) it falls within the third rule as a control of use. But even on Mr Green’s hypothesis the Council is not proposing to rob Mr Cusack of all access to the highway. It is merely proposing to block vehicular access to the highway; and even then perhaps only access by four wheeled vehicles. So even on that basis he is not deprived of the right of access to the highway: the right is being controlled so that it can only be exercised in a particular way.

In cases that fall within the third rule (i.e. control of use cases) the Strasbourg court has always accorded the national legislature a wide margin of appreciation. It will respect the judgment of the national authorities unless it is manifestly arbitrary or unreasonable.

In such a case there is no presumption or prima facie expectation that compensation will be payable for loss caused by the imposition of the control: R (Trailer and Marina (Leven) Ltd) v Environment Secretary [2004] EWCA Civ 1580, [2005] 1 WLR 1267 per Neuberger LJ. The Grand Chamber of the European Court of Human Rights made the same point in JA Pye (Oxford) Ltd v United Kingdom (2007) 23 BHRC 405 § 79, as did the European Commission on Human Rights in Baner v Sweden (1989) 60 DR 128, 139. Thus the absence of compensation does not lead to the conclusion that the control is unjustified or disproportionate. Indeed in JA Pye (Oxford) Ltd v United Kingdom itself the Grand Chamber upheld the compatibility with A1P1 of the (former) law of adverse possession even though the effect of the running of time was to transfer title to land from one citizen to another without the payment of compensation. That was a far more draconian effect than the prevention of Mr Cusack’s use of a motor car to get to the forecourt of 66 Station Road. I have no doubt but that section 80 is compatible with A1P1. The second way in which Mr Green put the case under the Human Rights Act was that the Council itself, as a public authority, had a statutory duty not to act in a way that was incompatible with Mr Cusack’s convention rights. But if (as I think) section 80 is compatible with Mr Cusack’s rights under A1P1, it must follow that the exercise of that power is not acting in a way that is incompatible with those rights. I do not, therefore, consider that arguments based on the Human Rights Act takes the case any further.

Both the approach to construction of potentially overlapping powers in the Highways Act 1980, and the compatibility of section 80 with A1P1 are points of sufficient importance to justify a second appeal. For the reasons I have given I would grant permission to appeal, and allow the appeal to the extent that I have indicated.

I agree.

I also agree.