Patrick Joseph Cusack v London Borough of Harrow
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MADDISON,Mr Justice Maddison |
| Judgment Date | 07 March 2011 |
| Neutral Citation | [2011] EWHC 460 (QB) |
| Docket Number | Case No: CC/2010/PTA/0141 |
| Court | Queen's Bench Division |
| Date | 07 March 2011 |
[2011] EWHC 460 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM WILLESDEN COUNTY COURT
ORDER OF HIS HONOUR JUDGE McDOWALL
Before : Mr Justice Maddison
Case No: CC/2010/PTA/0141
CASE NO: 9WI01035
Noel Dilworth (instructed by Cusack & Co) for the Appellant
Tom Weekes (instructed by London Borough of Harrow) for the Respondent
Hearing dates: 19 th October 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Maddison :
I have been provided with a helpful lever arch file entitled "Appeal Bundle". It contains two sections. Section B is the bundle of documents used at the Willesden County Court from which this appeal has been brought. Section A is a bundle of documents prepared for the purposes of the appeal itself. Unless otherwise stated, page references in this judgment are to the pages in section B.
This appeal arises out of the decision of the London Borough of Harrow, the Defendant and Respondent, to which I will refer as "Harrow", to erect what for the moment I will refer to as barriers on the pavement of Station Road, Harrow immediately adjacent to the paved forecourt at the front of the property, 66, Station Road, the freehold of which is owned by the Claimant and Appellant Patrick Joseph Cusack, to whom I will refer as "Mr Cusack", and his wife Kathleen Cusack, and from which Mr Cusack has conducted a Solicitor's practice since 1969. Harrow wishes to erect these barriers to prevent vehicles from moving in either direction between the forecourt and the adjacent pavement and carriageway. Harrow considers that this endangers pedestrians and other road users.
The relevant historical facts are not disputed and can be summarised quite shortly. Mr Cusack's parents became the freehold owners of No. 66 in December, 1969. At some time before this the front wall of the property had been removed and the front garden had been covered in hard standing material to create a forecourt. The forecourt is wide enough to accommodate two parked cars, and ever since December 1969 it has been used on a regular basis for the parking of cars belonging to Mr Cusack, his wife, his professional clients and his staff. Mr Cusack and his wife became the freehold owners of the property in 1977.
When Mr Cusack acquired the property, the kerb of the pavement outside it was raised in the usual way along its entire width. However, some 12 to 15 years ago an uncontrolled pedestrian crossing was constructed in Station Road, roughly in line with the left hand side of No. 66 as viewed from the carriageway. The kerb stones at each side of Station Road were dropped, to allow access to and egress from the crossing, and the adjacent areas were paved with studded or "tactile" paving stones. In the centre of the road, which has a single lane in each direction, a pedestrian refuge or island ("the island") was built. The crossing and the island can be seen from different angles at pages 132, 153, 163, 245 and 260. As appears from the statement of Harrow's witness Barry Philips, to which I will return later, the crossing was designed and provided with disabled persons, including the partially sighted, in mind.
The result is that to park a vehicle to the right of the forecourt of No. 66, again as viewed from the carriageway, its driver would have to drive up over the raised kerb and over the pavement. To park a vehicle to the left of the forecourt its driver would be able to drive at least in part over the dropped kerb associated with the crossing, and it appears that the dropped kerb is indeed used for such a purpose. It is important to note, however, that the kerb was not dropped to ease vehicular access to the forecourt, but for the benefit of pedestrians; and that the right hand side of the dropped kerb looking towards the front of the property, is very close to the left hand boundary of the property and plainly not positioned with a view to providing vehicular access to the forecourt. In my view the dropped kerb cannot be considered as a means of access to Mr Cusack's property.
From 23 rd April 2008 onwards there were a number of communications between Harrow and Mr Cusack during which Harrow asked or told him to remove cars from the forecourt of No. 66 and to stop driving onto it. Harrow also warned him that it might take steps, for example by erecting bollards, to prevent cars from driving onto the forecourt. In due course Harrow wrote a letter dated 13 th January 2009 which appears at page 173 stating that "the current practice of vehicles being driven over the footway to access properties in Station Road causes danger to both pedestrians and other motorists". It added that Harrow had decided that a vehicle crossing to permit access to the forecourt would not be appropriate "given the road and pedestrian traffic in the area". Then on 6 th March 2009 an organisation called EnterpriseMouchel wrote a letter which appears at page 190. It was addressed "to whom it may concern" and appears to have been sent to the occupiers of several properties on Station Road, of which No. 66 was one. The first part of the letter read as follows:
"This letter is to inform you that Harrow Council and its partner EnterpriseMouchel are planning to install barriers from 36 – 76 Station Road. The barriers are being installed to the back of the footway to prevent vehicles from driving over raised kerbs and footways to access private property along the road, which is an offence under the Highways Act 1980. The barriers will prevent further footpath damage and increase pedestrian safety along this section of Station Road, which is considered one of the busiest roads in the borough. We have assessed your property to establish whether a vehicle crossing could be approved but unfortunately, because of the depth of your front garden, it does not comply with Council standards. As such, any application made will be declined. The barrier works will begin on 23 March and be completed by the end of the month. To allow us to carry out the works we will need any vehicles to be removed from your property. Please find alternative parking."
In two respects, this letter was misleading. First, I was told during the hearing of the appeal that it was and is not in fact Harrow's intention to place barriers in front of Nos. 46, 48, 56, 58, 60 and 74 – 76 Station Road. As appears from pages 252 to 262, all these properties are presently served by dropped kerbs allowing vehicular access to them. In the case of all except 74 – 76 the dropped kerbs are in Station Road itself. Though it is not entirely clear from pages 254 and 255, it appears that nos. 46 and 48 share a dropped kerb. In the case of 74 – 76 the dropped kerb is in the side road shown on page 262, which allows vehicles to park on the forecourt but parallel with the frontage of the building. For completeness, I would add that there are fences or barriers in front of Nos. 36 to 44. There are barriers in front of No. 50 though cars can gain access to the forecourt of No. 50 not directly from Station Road but from a driveway that serves No. 52, which itself is served by a dropped kerb. There are no barriers but there are substantial fences in front of Nos. 54, 62 and 64, though the fence in front of Nos. 62 and 64 may well be temporary and associated with renovation works at those properties. There are barriers in front of Nos. 68 to 72.
It is to be noted that of the properties from 36 to 76 Station Road No. 66 is the only one which does not have a dropped kerb provided for vehicular access but the forecourt of which is nevertheless being used for parking. It is also the only one the vehicular access to the forecourt of which is via and/or in close proximity to a pedestrian crossing.
The second respect in which the letter of 6 th March was inaccurate is that I was told by Counsel during the hearing of the appeal that further research has shown that it is not in fact an offence contrary to the 1980 Act or at all to drive a vehicle over a raised kerb, across a pavement and directly onto the frontage of an adjacent property.
Doubtless as a result of having received the letter of 6 th March, it was on17 th March 2009 that Mr Cusack commenced proceedings in the Willesden County Court, claiming an injunction to restrain Harrow from erecting such barriers, alternatively damages for breach of easement, nuisance or trespass. He asserted that he had a right of way from his property over the pavement and onto the road carriageway, on foot and with vehicles, which he had acquired by prescription. It is now agreed by the parties that although Mr Cusack does indeed have such a right, it is a common law right, often referred to as a "frontager's right", rather than a right acquired by prescription. Given the parties' agreement, there is no need to explain in this judgment the reasoning which has led them to their conclusion, though I should say that it is a conclusion with which I agree. In fact, the legal basis of Mr Cusack's right does not affect the matters which arise for decision in this appeal.
At a hearing on 20 th March 2009 at the Willesden County Court Harrow undertook not to commence any work affecting 66 Station Road until trial or further order.
On 13 th August 2009 Harrow wrote again to Mr Cusack (see pages 193 – 195) stating that it had received Counsel's Opinion, and maintaining that it was entitled to act as it intended by virtue of its statutory powers under section 80 of the Highways Act 1980 to which I will refer in detail later in this judgment.
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