To pay or not to pay was one of the questions that the Supreme Court considered in Cusack v London Borough of Harrow [2013] UKSC 40, a recent case concerning choice of statutory power and payment of compensation for blocking vehicular access. Harrow Council wanted to erect barriers to block vehicular access from the parking area in front of Mr Cusack’s property to the public highway in order to improve safety for highway users. This was vigorously opposed by Mr Cusack, who had been reversing his car from the parking area onto the highway since 1969.

A local authority is empowered to erect barriers to prevent access under both s66(2) and s80(1) of the Highways Act 1980. If the power is exercised under s66(2), which provides for the erection of pillars and rails if thought necessary for the safety of highway users, the local authority must pay compensation to the affected party. By contrast, if the s80(1) route is used, which contains a general power for a local authority to erect fences or posts to prevent access to a highway, no compensation is payable.

Both the County Court and High Court found that the Council could use the s80 route. That meant that vehicular access could be blocked without payment of compensation. Mr Cusack appealed, with some success, as the Court of Appeal held that s80 was not available to the Council because the specific wording of s66(2) should override the general provision in s80. This meant that the Council would be obliged to use the s66(2) route and pay compensation to Mr Cusack. Unsurprisingly the Council appealed.

There was then a further twist as the Supreme Court decided that the Council could after all choose to use the s80 route, thereby avoiding paying compensation to Mr Cusack. This decision is a helpful reminder that where there are two statutory routes available to achieve the same result, a local authority is entitled to choose the route that imposes the least burden on the public purse, provided that this is not unreasonable or an abuse of power