Cusack v Harrow London Borough Council  All ER (D) 47 (Dec)
In this case, the claimant practised as a solicitor at a property which had originally been built as a dwelling. Its former front garden was covered with hardstanding to form a forecourt and was open to the highway. It was on a single carriage road which was flanked in each direction by a pedestrian footway. The claimant, his staff and clients had used the forecourt to park cars since 1969 and that involved cars being manoeuvred over the footway. In January 2009, the defendant local highway authority wrote to the claimant, asserting that the movement of vehicles over the footway caused danger to pedestrians and other motorists and warned the claimant that it was planning to erect barriers to prevent vehicles from driving over raised kerbs and footways. The claimant brought proceedings in the county court, claiming an injunction restraining the local authority from erecting the proposed barriers outside his property. In its defence and counterclaim, the local authority pleaded that the claimant and his wife, by driving over the footway and authorising others to do so, were endangering the safety of: drivers, passengers of vehicles, and cyclists using the carriageway; pedestrians using the footway, and pedestrians crossing the carriageway. The local authority said that it had the power to erect the barriers under section 66 or section 80 of the Highways Act 1980. The judge in the county court held that the local authority had the power under section 80 of the Highways Act 1980 to erect the barriers. The claimant appealed to the Queen's Bench Division but the finding was upheld. The claimant appealed to the Court of Appeal.
The claimant argued that the local authority should have exercised its power under section 184 of the Highways Act 1980 and imposed conditions on reversing out of the forecourt and that, failing that, it should have applied to stop up the means of access under sections 124 and 126 of the Highways Act 1980. It was common ground that the local authority could have used its power under section 66(2) of the Highways Act 1980 to erect barriers immediately in front of the claimant's forecourt but that the claimant would then have been entitled to compensation under section 66(8). Therefore, the local authority wished to rely on section 80 of the Highways Act 1980. The court also considered whether the blocking of vehicular access to the highway amounted to a deprivation of possessions or only a control of the use of property. It considered Article 1 to the First Protocol of the European Convention on Human Rights.
The appeal was allowed in part. It was held that: (1) The result of stopping up a means of access pursuant to section 124 of the Highways Act 1980 was to extinguish permanently the right to use it. There was no need for any physical obstruction of the means of access to achieve that result. Moreover, since the power to stop up could only be used where either no access to the highway was reasonably required or where there was another reasonably convenient means of access, the power could not be used to extinguish vehicular access only while leaving the right to have pedestrian access over the same land intact. (2) The statutory power conferred by section 80 of the Highways Act 1980 was a power to erect and maintain fences and posts. Both fences and posts would be connected to the ground, so the statutory power was intended to enable the highway authority to prevent access to ground level. There were three ways of accessing a highway at ground level: from another highway; from private land abutting the highway by virtue of a private right of way, and from private land in exercise of the rights of a frontage. Section 80(3)(b) prevented the power under section 80 being used so as to obstruct a public right of way. Accordingly, the only scope for exercise of the power was to restrict access to the highway from private land abutting the highway. Any land abutting the highway had to be owned by a frontage. Since 80(3)(b) only referred to obstructing public rights of way, it was a necessary inference that it did not prohibit interfering with private rights of way. Sections 80(3)(c) and (d) precluded interfering with certain private means of access. The common feature of both types of means of access which section 80 could not override was that they were lawfully formed under town and country planning legislation.
In this case, there was evidence that the local authority's real concern was the reversing of vehicles when leaving the forecourt, so the purpose of the barriers had been to prevent access to the highway. If they also had the effect of preventing access to the forecourt from the highway, that was incidental. The works which the local authority had wished to carry out had been within the literal words of section 80(3). However, 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. Accordingly, the action that the local authority had wished to take had fallen within section 66(2) of the Highways Act 1980. The court would make a declaration to the effect that the power under section 80 of the Highways Act 1980 had not applied to the facts of this case and that the local authority had the power to carry out the proposed work in reliance on the power contained in section 66(2) of the Highways Act 1980. (3) The right of a frontage to access the highway was one of a bundle of rights that ownership of a particular property carried with it. Unless the exercise of the power under section 80 of the Highways Act 1980 could be said to amount to a deprivation of the property itself, it fell within the third rule of Article 1 to the First Protocol to the Convention as a control of use. Consequently, section 80 was compatible with Article 1 to the First Protocol. In this case, the claimant was not deprived of the right of access to the highway but his right was being controlled so that it could only be exercised in a particular way. If section 80 of the Highways Act 1980 was compatible with Article 1 to the First Protocol, it followed that the exercise of that power was not acting in a way that was incompatible with the claimant's Convention rights