Cusack v Harrow London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Aikens,Lord Justice Ward |
| Judgment Date | 07 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1514 |
| Date | 07 December 2011 |
| Docket Number | Case No: B2/2011/0786 |
| Court | Court of Appeal (Civil Division) |
[2011] EWCA civ 1514
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr Justice Maddison
CC/2010/PTA/0141
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Aikens
and
Lord Justice Lewison
Case No: B2/2011/0786
MR PATRICK GREEN & MR NOEL DILWORTH (instructed by Patrick J Cusack & Co, Harrow) for the Appellant
MR TOM WEEKES (instructed by Borough Solicitors, Harrow) for the Respondent
Hearing date : 28 November 2011
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...
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