Cusack v Harrow London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Carnwath,Lord Sumption,Lord Sumpton,Lord Neuberger,Lord Mance |
| Judgment Date | 19 June 2013 |
| Neutral Citation | [2013] UKSC 40 |
| Date | 19 June 2013 |
| Court | Supreme Court |
[2013] UKSC 40
Lord Neuberger, President
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hughes
Appellant
Stephen Sauvain QC
Tom Weekes
(Instructed by Sharpe Pritchard)
Respondent
Patrick Green QC
Noel Dilworth
(Instructed by Patrick J Cusack & Co)
Heard on 23 April 2013
Lord Carnwath (with whom Lord Sumption and Lord Hughes agree)
Since 1969 Mr Cusack has practised as a solicitor at 66 Station Road, Harrow ("the property"). Station Road, part of the A409, is a single carriage road in each direction flanked by a pedestrian footway. At some unknown date the former front garden was turned into a forecourt open to the highway, which has since then been used for parking cars of staff and clients. This involves cars crossing the footway to gain access, and backing into the road when leaving.
The house had been built in around 1900 as a dwelling. In 1973 a personal permission was granted on appeal to Mr Cusack to use the ground floor as offices, subject to a condition requiring cessation by 31 August 1976. It was noted that the ground floor had been used for that purpose "for some time", and permission was only sought for a temporary period to enable Mr Cusack to continue his work in the local court. One of the objections had related to traffic generation, but the inspector did not think that "use of these rather limited premises has added materially to traffic hazard over the last two years". Following the expiry of that permission the use as an office has continued and has become "established" in planning terms.
The present dispute began in January 2009, when the London Borough of Harrow ("the council"), as highway authority, wrote to Mr Cusack asserting that the movement of vehicles over the footway caused danger to pedestrians and other motorists. In March 2009 he was informed that the council were planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. After some initial confusion as to the statutory basis for their proposed action, they settled on section 80 of the Highways Act 1980. Mr Cusack began proceedings in the county court for an injunction to prevent the erection of the barriers outside his house. Judge McDowall and on appeal Maddison J found in favour of the council, but their decisions were reversed by the Court of Appeal. Pursuant to an undertaking given by the council to the county court, no barriers have yet been erected outside number 66, although they have been erected outside some other adjoining properties.
Apart from statute, Mr Cusack, as owner of property fronting on to the highway, would have had a common law right of access without restriction from any part of the property (see Marshall v Blackpool Corporation [1935] AC 16, 22 per Lord Atkin). In practice those rights have been much circumscribed by statute. As Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 478:
"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."
As that case also shows, although many of the powers conferred by the Acts are subject to payment of compensation, there is no general rule to that effect. As Lord Radcliffe said in the same case (p 475), the right to compensation is a matter of law not concession:
"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; and if they have to pay compensation, they must pay according to the proper legal measure…"
One of the issues in the appeal is whether that simple dichotomy holds good since the enactment of the Human Rights Act 1998.
It is not now in dispute that the council has statutory power to do what it did. The Court of Appeal declared that it is not entitled to proceed under section 80 of the Highways Act 1980, but was so entitled under section 66(2). The latter declaration is not under appeal. The difference lies in whether compensation is payable.
I turn to the relevant sections. Section 66 (in a group of sections headed "Safety provisions") provides:
" Footways and guard-rails etc for publicly maintainable highways
(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 (in a group headed "Fences and boundaries") provides:
" Power to fence highways
(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 1 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…"
Reference was also made in earlier correspondence, and in argument before us, to other powers in the Highways Act. They include the power to stop up private means of access subject to compensation (sections 124, 126), and the power to create crossings for, or impose conditions on the use of, accesses onto the highway (section 184). Apart from providing further illustrations of the wide range of sometimes overlapping powers available to authorities under the Act, they appear to throw no useful light on the issues we have to decide.
The Court of Appeal accepted the submission of Mr Green, for Mr Cusack, that viewed in the context of the structure of the Act as a whole, the appropriate power for what the council wanted to do was section 66 not section 80. As Lewison LJ recorded his submission:
"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."
Lewison LJ found support for that submission in the principle that in statutory construction the specific overrides the general —generalia specialibus non derogant (see eg Pretty v Solly (1859) 26 Beav 606). In his view, the council's proposed action and the reason for taking it "fall squarely within section 66(2)", and accordingly section 80 did not apply to the facts of the case (para 21). He considered an alternative argument based on section 3 of the Human Rights Act 1998, but did not think that argument took Mr Cusack's case any further (para 27).
In this court Mr Sauvain for the council challenges that conclusion. There is no justification, he says, for application of the general/specific principle where there is no conflict between the two provisions....
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