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13 SEP 2013

Cusack v London Borough of Harrow [2013] UKSC 40; (2013) PLLR 109

Highways - local government - highway authority - barriers between highway and footpath - safety - sections 66 and 80 Highways Act 1980 - compensation - Article 1 Protocol 1 European Convention on Human Rights - control of use of property - proportionality

A local authority seeking to erect barriers to prevent vehicles from crossing the footpath in order to pass from the highway to parking outside premises was entitled to do so under section 80 of the Highways Act 1980, even though an alternative power existed under section 66, which would have entitled the respondent to compensation. This did not amount to a breach of Article 1 Protocol 1 of the European Convention on Human Rights.

19 June 2013

Supreme Court

Lord Neuberger (President), Lord Mance, Lord Sumption, Lord Carnwath and Lord Hughes

(1)        The respondent (C), a solicitor, owned premises within the area of the appellant highway authority (H). C used the ground floor of the premises as an office. This had initially been subject only to temporary planning permission but had continued for over 30 years. As part of this temporary permission, the forecourt of the premises had been used as parking, with vehicles passing over the footpath to access it. H sought to erect barriers in order to prevent this.

(2)        C claimed that H was wrong to seek to do so under section 80 of the Highways Act 1980 (the 1980 Act) rather than section 66 (as only the latter section would entitle him to compensation) on the grounds that this was a far better fit with the specific purpose for which H undertook the works. He further argued that use of section 80 amounted to a breach of his right to peaceful enjoyment of his property under Article 1 if the first Protocol to the European Convention on Human Rights (Article 1).

(3)        Lord Carnwath held: that, as owner of the property, C would have had a common law right of access (Marshall v Blackpool Corporation [1935] AC 16 considered). However, these rights had been limited by statute such that a highways authority could carry out works which interfered with this right of access. There was no general rule that a land owner affected by such works was entitled to compensation (Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470 considered) [4].

(4)        Neither section 66 nor section 80 of the 1980 Act was more specific than the other. Although section 66 was directed at more specific purposes the powers were drafted in broad terms and did not necessarily relate to private access. Section 80 made no express mention of safety but that purpose was implicit was it was a distinct purpose of the 1980 Act. This was clear both from the legislative history and the natural meaning of section 80. There was no express or implied restriction on the use of section 80. That an alternative power existed did not preclude its use (Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 considered). The possibility of judicial review remained open to guard against abuse of the choice of statutory power [12], [25] - [28].

(5)        Any interference with C's property under Article 1 was not deprivation of property but a control of his property. The question was not whether section 80 of the 1980 Act was compatible with Article 1, but rather whether H's application of section 80 had struck a fair balance between general and individual interests. The state enjoyed a wide margin of appreciation regarding land development and town planning. That an alternative route to the same result existed and would have entitled C to compensation did not itself mean that the exercise of section 80 was disproportionate. That H was entitled to use section 80 to control use of a private access in the public interest, employing it was not an abuse of H's powers nor outside the discretion it enjoyed [35] - [37], [44] - [50].

Appeal allowed; order of the Court of Appeal set aside

Key paragraphs

[1] - [5] - Introduction

[6] - [8] - Statutory provision

[9] - [12] - The Court of Appeal

[13] - [19] - Legislative history

[20] - [25] - Planning immunity

[26] - [30] - Interpretation of section 80

[31] - [50] - Human Rights Act 1998

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